What's in a name? that which we call a rose

What's in a name? that which we call a rose…*

Source: Professor Michael Froomkin, Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law, University of Miami School of Law

Professor Michael Froomkin, Laurie Silvers & Mitchell Rubenstein Distinguished Professor of Law, University of Miami School of Law, referring to a response to a motion submitted to the court by an assistant attorney general for the State of Tennessee, states “I’ve seen half-a-dozen links to this unique and amazing pleading but the world will be a better place with one more.”

Here is yet another link to the pleading. 

Professor Froomkin summaries the situation as follows:

“The setup is that the prosecutor wanted the Judge to order the defense ‘not to refer to the Assistant District Attorney General as “the Government” during trial.'" Seems they thought being called “the government” was prejudicial or derogatory or hurt their feelings or something. Defense hits it out of the park. The really good stuff starts at the bottom of page two.” 

* William Shakespeare, Romeo and Juliet

The defendant’s attorney’s Response To Government's Motion In Limine II is posted on the Internet at:

http://www.scribd.com/doc/180035586/Response-to-Government-Moving-to-Ban-the-Word-Government
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State sued for alleged defamation after publishing information depicting the plaintiff as a “sexual offender/predator”

State sued for defamation after publication of information depicting the plaintiff as a “sexual offender/predator”

2013 NY Slip Op 51814(U), Court of Claims, Judge Judith A. Hard [Not selected for publication in the Official Reports.]

In this action filed in the Court of Claims, the plaintiff [Anonymous] sought damages for alleged defamation arising out of “the State’s implementation, organization, publication, portrayal and dissemination of photographs and materials” which depicted Anonymous to third persons as a sexual offender/predator even though Anonymous was never charged with a sexual offense or convicted as a sexual offender/predator.

In her decision Judge Hard found that Anonymous proved liability by a preponderance of the credible evidence and explained the relevant law with respect to the issue before her, i.e.,  Did the publication of those statements constituted defamation? 

Defamation, said the court, "is defined as 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 in the minds of right-thinking persons, and to deprive him of their friendly intercourse in society.' [while] [d]efamation is the injury to one's reputation, either by written expression (libel) or oral expression (slander)."

In the words of Judge Hard “The elements of defamation are: (1) a false statement; (2) the publication of said statement without privilege or authorization to a third party; (3) fault amounting at least to negligence on the part of the publisher; and (4) the statement causes special harm or constitutes defamation per se. Publication of a photograph constitutes dissemination of information.”

In this case, the Court concluded that a State law enforcement agency's employee’s speech to the press, a press release, a media advisory and “the display of the [Anonymous’] mug shot on the wall of shame,” all of which wrongly imply that Anonymous was a sexual predator, constitute false statements. In addition, the court concluded that “the publication of said statements was not authorized.”

The issue for the court to determine: “Whether the statements were privileged, whether the fault amounts at least to negligence on the part of defendant, and whether the statements caused special harm or constitute defamation per se.”

As to “privilege,” a public official being sued for alleged slander or liable may claim an “absolute privilege” or a “qualified privilege.”

Absolute privilege protects "communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings" but only extends to comments "made in the context of official communications by a principal executive of State or local government [or] those entrusted by law with considerable administrative or executive policy making responsibilities.” 

Further, Judge Hard said that “Absolute privilege attaches to actions performed by delegation on behalf of a department head of an agency, but not to those actions undertaken by an employee on their own behalf in the discharge of their own official duties.”

As to “qualified privilege,” Judge Hard said that “Press statements made by governmental representatives concerning governmental affairs are covered by such a qualified privilege. To establish such a [qualified] privilege, defendant needs to submit proof establishing that it was objectively reasonable for the defendant to believe that its conduct was appropriate under the circumstances. A [qualified] privilege will attach to statements in which the communicating party possesses a legal duty to communicate information about another, if the communicator has a good-faith belief that the information is true.”

In this action, the State did not claim an absolute privilege.

As to any “qualified privilege,” Judge Hard indicated that although a qualified privilege may apply to press statements made by governmental representatives concerning governmental affairs, the State defendant cannot avail itself of the qualified privilege defense here  because the State defendant did not submit any proof that its behavior was even remotely reasonable under the circumstances or that it had a good-faith belief that Anonymous was an online sexual predator. To the contrary, Judge Hard said that it was clear that State, through the actions of it employees, was aware that Anonymous was charged with a crime - criminal possession of a controlled substance. However, noted the court, Anonymous had not been charged with any of the internet crimes that was the subject of the press conference or press release.

Judge Hard found that “no privilege attaches to any of the alleged defamatory statements,” and then commented “… even if a qualified privilege did exist, it would be overcome by malice as [the State] recklessly disregarded the truth (i.e. that [Anonymous] was charged with criminal possession of a controlled substance) when affixing [Anonymous’] photo to the wall of shame designed to highlight online predators.”

The Court’s conclusion:

1. The State’s “fault rises at least to negligence, and further that the defamatory statements constitute defamation per sebecause they would naturally import a criminal or disgraceful charge to the mind of an intelligent person.”

2. Anonymous has proved [the] case by a preponderance of the credible evidence.

Holding that the State “is 100% liable for the defamation,” Judge Hard said that a trial on damages “shall be scheduled as soon as practicable.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_51814.htm
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An employee’s Constitutional right against self-incrimination does not give the individual the right to answer questions untruthfully

An employee’s Constitutional right against self-incrimination does not give the individual the right to answer questions untruthfully

2013 NY Slip Op 07104, Appellate Division, Third Department

An individual [Claimant]employed by Ulster County was arrested and charged with felony and misdemeanor counts of criminal possession of a controlled substance after heroin was found in the car she was driving. The County suspended Claimant without pay from her employment pending the resolution of the criminal charges.

Claimant then applied for unemployment insurance benefits and told the Department of Labor investigator that she was on disciplinary suspension because of her arrest and that she was "not guilty of any wrongdoing in connection with the arrest." Claimant was approved to receive unemployment insurance benefits based on this information.

Subsequently Claimant was convicted of two misdemeanor counts of criminal possession of a controlled substance in the seventh degree arising out of the arrest and Ulster County terminated her employment.

Following Claimant's termination by the County, a Labor Department Administrative Law Judge (ALJ) disqualified her from receiving unemployment insurance benefits on the ground that she had been separated from employment due to her misconduct. The Unemployment Insurance Appeal Board affirmed the ALJ’s decision and ultimately Claimant was held subject to a recoverable overpayment of unemployment insurance benefits in the amount of $31,935 and a reduced right to receive future benefits by 16 effective days on the Board’s finding that she had made willful misrepresentations to obtain benefits.

Complainant appealed contending that her statement to the investigator constituted “an exercise of her constitutional right against self-incrimination for which she could not be penalized by the Board.” The Appellate Division rejected this argument, explaining that although Claimant had the right to refuse to respond to any inquiries related to her possible guilt in connection with her arrest and the criminal charges then pending against her, "neither the text nor the spirit of the Fifth Amendment confers a privilege to lie."*

In the words of the Appellate Division, “By her response to the investigator's inquiry as to whether she was, in fact, guilty of the crimes she was charged with, [Claimant] “took a course that the Fifth Amendment gave [her] no privilege to take’ and the jury's verdict convicting her of knowingly possessing heroin at the time of her arrest conclusively established the falsity of her statement denying any wrongdoing.”

The Appellate Division sustained the Board’s determination, ruling that substantial evidence supported its finding that Claimant's affirmative statement to the Labor Department's investigator that she was "not guilty of any wrongdoing in connection with [her] arrest" was a willful misrepresentation made in order to obtain benefits.

* In Bryson v. United States, 396 US 64, the Court said “Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07104.htm
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Town adopts a local law replacing a contract disciplinary procedure applicable to town police officers pursuant to Town Law §155

Town adopting a local law replacing a contract disciplinary procedure applicable to town police officers pursuant to Town Law §155

Town of Goshen v Town of Goshen Police Benevolent Assn., 2013 NY Slip Op 23365, Supreme Court, Orange County

In Matter of Town of Wallkill v Civil Serv. Employees Assn., Inc., 19 NY3d 1066 [2012] and Matter of Patrolmen's Benevolent Assn. of City of NY, Inc. v. New York State Pub. Empl. Relations Bd., 6 NY3d 563 [2006]. the Court of Appeals considered two companion appeals involving the effect of the Rockland County Police Act in one action and the New York City Charter and Administrative Code in the other case on the relevant municipality's authority over police discipline.

The Court of Appeals held that discipline of police officers "may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials." The Court of Appeals applied that holding in Town of Wallkill, and upheld the Town of Wallkill's local law making police discipline the subject of local authority rather than collective bargaining.

In response to disciplinary charges filed against a police officer pursuant the Town’s Local Law No. 1 of 2013, the Police Benevolent Association [PBA] demanded that the matter be submitted to arbitration.

The Town, cited the Town of Wallkill ruling in support of its initiating disciplinary action against a town police officer pursuant to the Town’s local law, asked Supreme Court to grant its petition to stay submitting the matter to arbitration based on the Town’s representation that it had, pursuant to the authority provided under Town Law §155, supplanted ”the disciplinary procedure laid out in Article 13 of the CBA [Collective Bargaining Agreement] with the disciplinary procedure set forth in Local Law No. 1 of 2013.”*

The court agreed, holding that Article 13 of the CBA is null and void and the procedures set forth in the Town's Local Law, not those of the CBA, govern police discipline in the Town and the Town's Local Law controls with respect to the disciplinary charges brought against police officers following enactment of the Local Law, provided those charges were timely brought.

The PBA then move to have the disciplinary charges filed against the police officer dismiss, contending that they were untimely, pointing out that Town Law §155 provides that disciplinary charges "shall not be brought more than sixty days after the time when the facts upon which such charges are based are known to the town board."

The PBA contend that the Town had knowledge of the facts underlying the charges more than 60 days prior to the charges being served on the police officer.**
 
In rebuttal the Town argued that the issue of timeliness of the disciplinary charges was not properly before the court. The Town also contended that, in any event, Local Law No.1 of 2013 "did not supplant the eighteen-month limitation period in the CBA agreement; it merely altered the process of noticing and hearing discipline, i.e., substituted a hearing officer for arbitrators and provided that the Town Board make the final determination."

The court agreed with the PBA, noting the statute of limitations set out in the Town Law §155 whereby disciplinary charges "shall not be brought more than sixty days after the time when the facts upon which such charges are based are known to the town board."

Here, said the court, “having successfully eliminated the arbitration provisions from the CBA, the Town cannot extend the principles that derive from arbitration agreements to its local law and decree that the question of timeliness is to be determined by the Town Board or a hearing officer selected by the Town Board. Thus, in the absence of an arbitration agreement on the issue, the timeliness of the Town's disciplinary charges is an issue for the Court to determine.

Accordingly, Supreme Court ruled that the Town’s action in bringing disciplinary action against the police officer was untimely.

* Supreme Court noted that “The Town used the Town of Wallkill's local law as a model for [its] Local Law No. 1 of 2013 and the two [local] laws are virtually identical.”

** According to the decision, the police officer had been served with the Notice of Discipline more than 120 days after the Town Board had knowledge of the facts underlying its bringing the disciplinary action.

The decision is posted on the Internet at:http://www.nycourts.gov/reporter/3dseries/2013/2013_23365.htm
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Seniority for the purposes of layoff of a Unified Court System employee is determined solely on the basis of his or her permanent service with the System

Seniority for the purposes of layoff of a Unified Court System employee is determined solely on the basis of his or her permanent service with the System
2013 NY Slip Op 07135, Appellate Division First Department

A Senior Law Librarian[Librarian] was laid off as part of a workforce reduction by the Unified Court System [UCS]. USC had determined that Librarian did not qualify for the "legal and secretarial employees providing services directly to judges" exception to the reduction. 

In response to Librarian’s petition challenging USC’s determination, the Appellate Division ruled that USC’s decision was based its interpretation of its own guidelines and “was not arbitrary and capricious, or irrational." The court explained that Librarian’s title, Senior Law Librarian, did not place him in the category of personnel directly assigned to, and serving at the pleasure of, the judges.

USC had determined Librarian’s seniority “based solely upon his years of service for the UCS” in accordance with rules promulgated by the Chief Judge and set out in 22 NYCRR 25.30[a].

22 NYCRR 25.30[a] provides that personnel are to be laid off "in inverse order of original appointment on a permanent basis in the classified service of the [UCS]." The decision notes that the Judiciary Law § 211(1)(d)'s directive that the administrative standards imposed by the Chief Judge "be consistent with the civil service law," requires only that they be guided, not governed, by it.”

The Appellate Division concluded that  22 NYCRR 25.30's provision that personnel be reduced "in inverse order of original appointment on a permanent basis in the classified service of the [UCS]" is consistent with Civil Service Law §80(1)'s requirement that employees be given a preference based upon the length of their service and that its enactment was within the judiciary's authority of self-governance in administrative matters.

Civil Service Law §80.1 provide, in pertinent part, that “Where, because of economy, consolidation or abolition of functions, curtailment of activities or otherwise, positions in the competitive class are abolished or reduced in rank or salary grade, suspension or demotion, as the case may be, among incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs, subject to the provisions of subdivision seven of section eighty-five of this chapter; provided, however, that the date of original appointment of any such incumbent who was transferred to such governmental jurisdiction from another governmental jurisdiction upon the transfer of functions shall be the date of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction from which such transfer was made.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07135.htm

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Part II of a confidential report concerning allegations of discrimination, harassment and intimidation of Schoharie County employees posted on the Internet by the County

Part II of a confidential report concerning allegations of discrimination, harassment and intimidation of Schoharie County employees posted on the Internet by the County

Part II of the Confidential Report*dated October 24, 2013 concerning allegations of discrimination, harassment and intimidation of Schoharie County employees submitted by Mark J. Fitzmaurice, Esq., of the law firm of Fitzmaurice and Welsh, White Plains, New York, to the Schoharie County Board of Supervisors has been posted on the County's web site at: http://www.schohariecounty-ny.gov/CountyWebSite/DocumentIndexing/430100000000/3661.pdf

Part I of the report prepared by Mr. Fitmaurice entitled “Confidential Final Report Concerning Discrimination, Harassment and Intimidation in the County Workplace" submitted to the Schoharie County Board of Supervisors was earlier posted by the County on the County's Internet site at 

http://www.schohariecounty-ny.gov/CountyWebSite/countyreport.html.

* Parts of Part II of the report have been redacted.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 2, 2013

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending November 2, 2013

Click on text highlighted in color  to access the full report

DiNapoli: Fire Company President Stole $34,000S

The former president of C. H. Evans Hook and Ladder Fire Company No. 3, located in the city of Hudson, misused the company’s debit card to make personal purchases totaling approximately $34,000, according to an audit released November 1, 2013 by State Comptroller Thomas P. DiNapoli. The former president, Joseph Morrison Jr., pleaded guilty on October 29, 2013 in Columbia County Court to the charge of Grand Larceny in the third degree, a class D felony.

DiNapoli Reaches Agreement with TD Ameritrade to Expand Protections Against Discrimination

TD Ameritrade Holding Corporation, one of America’s largest online brokerage firms, has agreed to amend its equal employment opportunity policy to explicitly prohibit discrimination based on sexual orientation or gender identity nationwide, New York State Comptroller Thomas P. DiNapoli announced November 1, 2013..

DiNapoli: State Fiscal Picture Stable

State spending was nearly $860 million lower than expected through the first half of the fiscal year while tax collections were just shy of projections, according to the Mid-Year Update and September cash reportreleased Wednesday by New York State Comptroller Thomas P. DiNapoli. Still, threats of another federal government shutdown and battle over the federal debt ceiling, as well as the continued slow pace of economic growth, could make it harder for the state to remain in line with its financial plan.

Comptroller DiNapoli Releases School Audits

On Wednesday, October 26, 2013 New York State Comptroller Thomas P. DiNapoli announced his office completed audits of:

the Albany Community Charter School;

the Elba Central School District;

the Health Sciences Charter School;

the King Center Charter School; and

the Oyster Bay–East Norwich Central School District.
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Moreland Commission to Investigate Public Corruption update

Moreland Commission to Investigate Public Corruption update

The Moreland Commission to Investigate Public Corruption hearing, held on October 29, 2013 in New York City, heard testimony focusing on campaign finance reform.

A 4 hour video of the hearing is posted on the Internet at:

http://www.youtube.com/watch?v=GUSPXRXADyY

Videos of previous hearings of the Commission are available on the Internet as follows:

The Moreland Commission to Investigate Public Corruption hearing, held on September 17th, 2013 in New York City, heard testimony focusing on federal and state criminal laws and the adequacy of existing state laws, rules and regulations involving misconduct by public officials.

A 3 ½  hour video of the hearing is posted on U-tube at:

http://www.youtube.com/watch?v=LP1GeOYKRas

The Moreland Commission to Investigate Public Corruption hearing, held on September 24, 2013, in Albany, New York, heard testimony focusing on campaign finance, outside income of state elected officials and political party housekeeping accounts.

A 2 ½ hour video of the hearing is posted on U-tube at:
http://www.youtube.com/watch?v=iLEhNUVdQaU

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Terminated employee must satisfy four tests in order to establish a prima facie case of unlawful discrimination because of his or her age

Terminated employee must satisfy four tests in order to establish a prima facie case of unlawful discrimination because of his or her age

2013 NY Slip Op 06991, Appellate Division, First Department

The school principal [Principal] alleged that during the relevant period of her employment by the New York City Department of Education -- the 2010-2011 school year -- she was 54 years old and served as the principal of a school she had founded.  

Principal had received satisfactory performance reviews for two years but alleged that she had been subjected to unfair and excessive scrutiny and reprimands during the 2010 to 2011 academic year, including an investigation into allegations of misconduct.

Terminated from her position in June 2011, Principal sued, contending that she had suffered unlawful discrimination because of her age. Supreme Court granted her employer's motion to dismiss Principal’s complaint as against it, which ruling was unanimously affirmed by the Appellate Division.

The Appellate Division said that although Principal had established three of the four elements necessary to establish a prima faciecase of age discrimination by showing that:

[1] Principal was a member of a protected class, being 54 years of age at the time of the alleged discrimination

[2] that Principal was qualified for the position by reason of having received satisfactory performance ratings during the relevant time period; and

[3] Principal had been subjected to an adverse employment action – termination;

Principal had failed to establish the fourth element required -- that she was either terminated or treated differently under circumstances giving rise to an inference of age discrimination.

While Principal argued that she was treated adversely under the State law or less well under the City Human Rights Law, the Appellate Division said that Principal did not make any concrete factual allegations in support of that claim other than that Principal was 54 years old. Such an allegation, said the court, was but “mere legal conclusions, and did not suffice to make out the [required] fourth element of [Principal's unlawful discrimination] claim."

Another element in this action concerned Principal's claim of being employed in a “hostile work environment.” However, in the words of the Appellate Division, Principal's “failure to adequately plead discriminatory animus is similarly fatal to [any] claims of hostile work environment and violation of the New York State Constitution's equal protection and antidiscrimination provisions.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06991.htm
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The State Senate Republican Campaign Committee seeks to quash a Moreland Commission subpoena asking for its “housekeeping account” records

The State Senate Republican Campaign Committee seeks to quash a Moreland Commission subpoena asking for its “housekeeping account” records

The State Senate Republican Campaign Committee has filed a motion in New York State Supreme, New York County,*asking the court to quash the Moreland Commission’s September 20, 2013 subpoena duces tecum for records pertaining to its "housekeeping account." In addition, the Committee is seeking a “protective order directing that the Committee need not respond to the subpoena’s remaining demands.”**

According to the Committee’s Memorandum of Law in Support of Petition to Quash and for a Protective Order filed October 29, 2013, “Its 'housekeeping account' is a segregated account comprising 'monies received and expenditures made … to maintain a permanent headquarters and staff and carry on ordinary activities which are not for the express purpose of promoting the candidacy of specific candidates.'”

In response, on October 30, 2013 the Moreland Commission Co-Chairs Kathleen Rice, Esq., Milton Williams, Jr., Esq. and William Fitzpatrick, Esq. issued the following statement:

"In addition to Executive Law 6 and the Executive order, the Moreland Commission has full legal authority, as Deputy Attorneys General, granted by the Attorney General, under Executive Law 63(8) to proceed with this investigation. We had hoped the Senate Republicans would willingly cooperate and they did not. We will prevail in court."

*  New York State Senate Republican Campaign Committee, Petitioner v Commission To Investigate Public Corruption, Respondent, Supreme Court, New York County, Index Number 159965/2013. The Senate Republican Campaign Committee’s October 29, 2013 response, together with a copy of its Memorandum of Law, is posted on the Internet at:

 http://polhudson.lohudblogs.com/2013/10/30/senate-gop-seeks-to-quash-moreland-commission-subpoena-for-records/

** The Committee's Memorandum of Law alleges: "the Committee made a targeted production of documents that responded to the Subpoena’s demands 1 and 3."

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Attempt to defeat the accuracy of a polygraph test results in removal of the candidate’s name from the eligible list

Attempt to defeat the accuracy of a polygraph test results in removal of the candidate’s name from the eligible list
2013 NY Slip Op 06682, Appellate Division, Second Department

The name of an individual [Candidate] seeking appointment as a Suffolk County Police Officer was removed from the eligible list certified for such employment.

Candidate filed a petition pursuant to CPLR Article 78 seeking a court order restoring his name to the eligible list. Supreme Court dismissed Candidate’s petition and the Appellate Division affirmed its ruling.

According to the Appellate Division’s decision, Candidate’s name was removed from the eligible list based on the opinions of several experts who reviewed the results of Candidate’s pre-employment polygraph [lie detector] examination. These experts concluded that Candidate had “deliberately engaged in the use of countermeasures in an attempt to improperly influence the results of the examination.”

The Appellate Division held that the employer reliance on the opinions of these experts was neither irrational nor arbitrary.

Further, said the court, Candidate failed to present any evidence demonstrating that the determination to remove his name from the eligible list lacked a rational basis or was arbitrary and capricious. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06682.htm
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Seeking reimbursement for attorney fees incurred by an employee in the course of judicial and quasi-judicial actions taken against the individua

Seeking reimbursement for attorney fees incurred by an employee in the course of judicial and quasi-judicial actions taken against the individual
2013 NY Slip Op 06910, Appellate Division, Third Department

This decision by the Appellate Division addresses a number of issues that arose in connection with the employee and his attorney seeking reimbursement for attorney fees incurred in the course of defending administrative disciplinary charges and federal and state civil and criminal action in which the employee was a party.

The elements considered by the court included claims and defenses based on an alleged unilateral contract; promissory estoppel; unjust enrichment; quantum meruit and fraud and the impact, if any, of the terms and conditions set out in the collective bargaining agreement between the employee’s union and his employer providing for the employer's reimbursing an employee for legal fees incurred by an employee in defending himself or herself in such judicial and quasi-judicial actions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06910.htm

Suspension without pay while disciplinary action is pending

Suspension without pay while disciplinary action is pending
2013 NY Slip Op 06769, Appellate Division, Third Department

One of the issues addressed by the Appellate Division was a question involving the suspension without pay of an individual served with disciplinary charges pursuant to Civil Service Law §75.

Noting that in order to avoid unreasonable delay in moving forward with pending charges, Civil Service Law §75(3) authorizes suspension of pay during a disciplinary proceeding for only 30 days. Where the disciplinary action has not been resolved within this 30-day period, the accused is entitled to be reinstated to the payroll and receive his or her regular compensation until an administrative determination regarding the disciplinary charges by the appointing authority has been made.

The Appellate Division, citing Gerber v New York City Hous. Auth., 42 NY2d 162, said this 30-day limitation does not apply in the event of delays attributable solely to the charged employee or where such payment has been clearly waived by such employee.

Courts have approved the placement of an individual on leaves without pay for periods equal in length to any adjournment in the hearing process requested by the employee. See, for example, DeMarco v City of Albany 75 AD2d 674 and Amkraut v Hults, 21 AD2d 260.

For other exceptions due to collective bargaining agreements or for other reasons, see Winkler v Kingston Housing Authority, 259 A.D. 2d 819 and Robinson v New York City Transit Authority, 226 AD2d 467.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06769.htm
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Supplemental Military Leave Benefits

Supplemental Military Leave Benefits

Source: New York State Register, Dated October 30, 2013

The New York State Civil Service Commission has extended supplemental military leave benefits available to employees in the classified service of the State as the employer pursuant to 4 NYCRR §§21.15 and 28-1.17 through December 31, 2013. 
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An improper appointment to a tenure area may adversely affect the rights of an educator in the event of a layoff

An improper appointment to a tenure area may adversely affect the rights of an educator in the event of a layoff

Appeal of Jennifer Cronk, Decisions of the Commissioner of Education, Decision No. 16,568

Jennifer Cronk was certified to teach grades K-6 and English grades 7-12. On August 29, 2000, she was assigned to teach computer programming in the school district’s middle school and high school and effective September 1, 2000 the district appointed Cronk to a three-year probationary position in the English tenure area.

Cronk was granted tenure in the English tenure area on June 17, 2003, effective August 31, 2003. In May 2011, the district notified Cronk that it was abolishing two full-time positions in the grades 7-12 English tenure area and that her services would be terminated on June 30, 2011.

Cronk, contending that she was not the least senior teacher in the English 7-12 tenure area and thus she had been “illegally excessed,” appealed to the Commissioner of Education.  In support of her claim, Cronk said that had provided instructional support services as described in Part 30 of the Rules of the Board of Regents for the 2000-2001 through the 2010-2011 school years and asked the Commissioner to declare that she had accrued seniority in the tenure area of grades 7-12 English, commencing on September 1, 2000.

The school district, in rebuttal, argued that Cronk “has not met her burden of establishing that she served in the English grades 7-12 tenure area for these school years” and that its decision to terminate her was not arbitrary and capricious because she had never taught English and had only taught computer programming classes and was therefore had been improperly assigned to the English grades 7-12 tenure area.

The school district raised also raised a procedural issue, claiming that Cronk had failed to name and serve necessary parties – other educators that might be adversely affected were the Commissioner to grant her appeal.

The Commissioner agreed with the school district’s position regarding Cronk’s failure to name necessary parties, citing a number of earlier rulings concerning this issue including Appeal of Murray, 48 Ed Dept Rep 517. The Commissioner explained that a necessary party “must be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense."

Cronk had filed her appeal on June 23, 2011 by service of a notice and petition but failed to name two other teachers in the district in the English 7-12 tenure area who might be affected by a determination in this appeal nor were these two teachers served with a copy of Cronk’s petition.* Having failed to properly join the two teachers, the Commissioner ruled that Cronk’s appeal must be dismissed.

However, said the Commissioner, “Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits” explaining that. Education Law §3013(2) provides that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” Section 30-1.1(f) of the Rules of the Board of Regents defines seniority as follows: “Seniority means length of service in a designated tenure area ....”

Addressing the merits of Cronk’s appeal, notwithstanding its dismissal on procedural ground, the Commissioner said that the principal issue in this appeal is whether Cronk was the least senior teacher in the English 7-12 tenure area. In general, seniority may be accrued in a given tenure area only if the service of the teacher in such area constitutes 40% or more of the total time spent in the performance of instructional duties (8 NYCRR §30-1.1 [f] and [g]).

It was undisputed that Cronk did not teach English in grades 7-12 in the 2000-2001 through 2010-2011 school years. Although she alleged that she had provided instructional support services during that period and therefore is entitled to receive credit toward tenure and seniority in the English 7-12 tenure area pursuant to section 30-.2(b)(1) of the Rules of the Board of Regents, the Commissioner said that on the record before him he found that Cronk did not demonstrate that she devoted at least 40% of her work time to instruction in English and/or instructional support services.

Rather, said the Commissioner, the record indicated that during the 2000-2001 through 2010-2011 school years, Cronk was assigned full-time to teach computer programming to students in the middle and high school grade levels. Further, in an appeal to the Commissioner, a 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.” Here, said the Commissioner, Cronk failed to submit any lesson plans or any other evidence to demonstrate that she spent more than 40% of her time in the English 7-12 tenure area and/or performing instructional support services during any of these school years.

Accordingly, the Commissioner decided that Cronk “never served in the English 7-12 tenure area.”

Significantly the Commissioner noted that the prohibition contained in §30-1.9 of the Rules of the Board of Regents against assigning a professional educator to devote asubstantial portion of his or her time in a tenure area other than that in which he or she has acquired tenure without his or her consent did not apply in this instance. From the inception of her employment by the board Cronk never devoted a substantial portion of her time within the 7-12 English tenure area and therefore was not a professional educator entitled to the protection of §30-1.9. Accordingly, Cronk could not now claim on that basis that she is not the least senior teacher in the English 7-12 tenure area.

Further, although the record indicates that Cronk was assigned to teach computer programming and therefore did appear to have spent a substantial portion of her time in the career and technical education tenure area, she had not raised that issue in this appeal nor sought reinstatement to a position in that tenure area.

However, said the Commissioner, “Even if she had, because she was never in probationary status in that tenure area §30-1.9 does not apply and, in any case, reinstatement with back pay to a position for which she is not qualified would be unlawful (see Education Law §§3001, 3009).”

The Commissioner then said that “Although I am constrained to dismiss this appeal, I note that when [Cronk] commenced her employment with the district, [the school board] lacked the authority to offer her a tenured position as an English 7-12 teacher” and reminded the board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.”

* N.B.Cronk “neither sought nor received permission to join any additional parties as respondents subsequent to commencement of her appeal on June 23, 2011” but, instead, on July 22, 2011, unilaterally attempted to add both teachers as respondents to the appeal by serving them with of an amended notice and petition. This, said the Commissioner, was improper, since under §275.1 of the Commissioner’s Regulations, after an appeal is commenced parties may not be joined except by leave or direction of the Commissioner

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16568.pdf
.