Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character

Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character
Matter of Mudge v Huxley, 2010 NY Slip Op 09311, Decided on December 16, 2010, Appellate Division, Third Department

Randy Mudge, a certified as a teacher and school administrator, requested a hearing in response to a notice from the State Department of Education that a substantial question existed with respect to his moral character.

The hearing panel determined that Mudge “lacked the good moral character necessary to be a teacher in New York State” and recommended suspension of his certificates for one year.

Mudge appealed and although the Commissioner* “modified the findings of the panel," she sustained the one-year suspension of his certificates. Mudge then filed a petition in Supreme Court challenging the Commissioner’s decision.

The Appellate Division said that its review of the Commissioner’s ruling “in this context is limited to whether it is arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion.”**

According to the decision by the Appellate Division, Mudge admitted that he had had sexual intercourse with two former students. Finding a “pattern of behavior in affording the girls preferential treatment while they were students, including the pre-graduation trips to “Mets games,” [the Commissioner] concluded that Mudge had groomed them for a sexual relationship while they were students and then, shortly after they graduated, exploited the relationships that he had cultivated.”

The Appellate Division rejected Mudge’s argument that the Commissioner’s conclusion regarding “grooming of the students prior to graduation is irrational.”

Although Mudge argued that each of the various factors considered by the Commissioner is innocent by itself, and his character is unassailable, the court said that it could not agree. It said that “Given the evidence of [Mudge’s] pattern of behavior with both girls, [the Commissioner’s] determination that [Mudge] was engaged in grooming and that he lacks the requisite moral character to be a teacher in this state is supported by a rational basis.

The Appellate Division then confirmed the Commissioner’s determination and dismissed Mudge’s appeal.

* Interim Commissioner of Education Carole F. Huxley

** The Appellate Division noted that Supreme Court’s transfer of Mudge’s appeal to it “was improper because the appropriate standard of review is not whether the determination is supported by substantial evidence,” it said that it would retain the proceeding and resolve the issues “in the interest of judicial economy.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09311.htm

Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancy

Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancy
Matter of O'Connor v New York State Civ. Serv. Commn., 2010 NY Slip Op 09324, Appellate Division, Third Department,

After posting a vacancy for the position of Supervising Hearing Officer [SHO], the Office of Temporary Disability and Assistance [OTDA] elected to reinstate Frank Gottlieb, a recently retired former SHO at OTDA. Gottlieb had submitted a request to be reinstated to the position of SHO.

Vincent J. O'Connor, a hearing officer, was one of about a dozen applicants, including Gottlieb, being considered for the position. After Gottlieb was reinstated to the position, O’Connor asked the Department of Civil Service to revoke Gottlieb's appointment. The Department denied O’Connor’s application.

O’Connor then appealed the Department’s decision to the State Civil Service Commission. The Commission affirmed the Department's determination and O’Connor filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Commission’s decision.

Supreme Court dismissed O’Connor’s petition, which action the Appellate Division affirmed.

The court said that O’Connor contended that “OTDA has acted improperly for many years because, instead of using competitive examinations, individuals are placed in SHO positions by the transfer method authorized in Civil Service Law §52(6).”*

However, the Appellate Division observed, that issue was not properly before us in this appeal as the appointment to which O’Connor had objected was not the result of a “transfer” but rather the reinstatement of a former, albeit, retired former SHO.** The decision points out that 4 NYCRR 5.4 permits the "[r]einstatement within one year, without examination” of a former employee.

After finding that the Commission did not act in an arbitrary or capricious manner in rejecting O’Connor’s request to have Gottlieb's reinstatement revoked, the court noted that the issue, in fact, was moot as Gottlieb “reportedly left the SHO position during the time this appeal was pending.”

* The terms "transfer," “reassignment” and “reinstatement” are unique personnel transaction in the public service. The term “transfer” is used to describe a change of employment where the employee leaves the jurisdiction of one appointing authority and enters the jurisdiction of another, different, appointing authority. In contrast, the term "reassignment" is used to describe personnel changes by the appointing authority within the same department or agency or within the jurisdiction of the same appointing authority. Except where there is a "transfer of function," transfers required the approval of both appointing authorities and the consent of the individual to be transferred [see 70.1, Civil Service Law] while a "reassignment" may be made without the agreement or consent of the employee concerned absent a provision in a collective bargaining agreement to the contrary. “Reinstatement” involves the reemployment of an individual who, after leaving public service, seeks to return to his or her former, or similar, position with his or her seniority as otherwise provided by law for such purposes layoff and eligibly for fringe certain benefits in his or her new position.

** Although of significant relevance, the decision does not address the impact of Civil Service Law §150 nor Retirement and Social Security Law §210 et seq. insofar as the compensation to be paid Gottlieb upon his reinstatement is concerned.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09324.htm

Statute of limitations - duty of fair representation

Statute of limitations - duty of fair representation
Matter of Mankowski, 33 PERB 3032

Daniel M. Mankowski charged that the Public Employees Federation [PEF] violated it duty of fair representation when it failed to represent him in certain grievances he filed against his former employer, the State of New York.

PERB affirmed its administrative law judge’s dismissal of Mankowski’s petition as untimely, noting that he had filed it more than four months after his last contact with PEF.