Educator claiming a preferred list should be used to fill a vacancy has the burden of demonstrating that the two positions are similar within the meaning of Education Law §3013

Educator claiming a preferred list should be used to fill a vacancy has the burden of demonstrating that the two positions are similar within the meaning of Education Law §3013

Matter of Michelle McDougall and the Schuylerville Central School District, Decisions of the Commissioner of Education, Decision 16505

Several positions were abolished by the school board due to budget reductions. The position encumbered by Michelle McDougall, a K-6 assistant principal, was among those abolished and her name was placed on a preferred list.

Ms. McDougall subsequently applied for a vacancy the position of K-12 Director of Curriculum, Instruction and Professional Development [Director] in response to a notice of vacancy posted by the school district. When another applicant was selected for the position, Ms. McDougall appealed the board’s action, contending that “the duties of her position as a K-6 assistant principal were substantially similar to the duties of the vacant Director position and pursuant to Education Law §3013, she was entitled to be reinstated to that position.*

The Commissioner of Education dismissed Ms. McDougall’s appeal on both procedural and substantive grounds.

As to the procedural issue, the Commissioner said that Ms. McDougall failed to “join necessary parties.” A party whose rights would be adversely affected by a determination of an appeal in favor of Ms. McDougall is a necessary party and must be joined as such.

Although Ms. McDougall had named “John/Jane Doe as a person to be subsequently named” in the caption, the Commissioner said that the record indicates that at the time Ms. McDougall commenced her appeal, an individual had been appointed by the board to the Director position. As that individual’s rights would be adversely affected if there was a decision in favor of Ms. McDougall as a result of her appeal and that individual had not been named or served with this appeal, the Commissioner said that he must dismiss the appeal for failure to join necessary parties.

However, said the Commissioner, Ms. McDougall's appeal would have been dismissed on the merits had it not been necessary to dismiss it because a necessary party had not been joined.

Noting that Ms. McDougall did not dispute board’s decision to abolish her position as K-6 assistant principal, the Commissioner rejected Ms. McDougall s contention that she was entitled to be reappointed to the Director position.

The Commissioner explained that although Education Law §3013(3)(a) governs the rights of a former employee to re-employment, it provides, in pertinent part, that in the event office or position is abolished … the person filling such position at the time of its abolishment … shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled ….”

Accordingly, in order for Ms. McDougall to be entitled to appointment to a vacant position from the preferred list, the vacant position must be similar to that of her former position. The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by Ms. McDougall in her former position.

Ms. McDougall has the burden of proving that a majority of the duties of the Director position are similar to those of her former position, assistant principal, K-6. Although, explained the Commissioner, the standard of what is similar is flexible and is not to be applied mechanically, the two positions must be in the same tenure area.

Ms. McDougall’s former position was in the K-6 assistant principal tenure area and the Director position is in the K-12 Director of Curriculum, Instruction and Professional Development tenure area, the Commissioner said that Ms. McDougall would have no rights under Education Law §2510(3)(a) to be appointed to the Director position if it is a different tenure area.

Ms. McDougall had the burden of establishing that the Director position is in the K-6 assistant principal tenure area. Finding that she had failed to meet her burden of establishing that the duties of the position of Director of Curriculum, Instruction and Professional Development are similar to those of a K-6 assistant principal, for purposes of Education Law §§2510(3) (a) and 3013(3) (a).

Further, the Commissioner noted that “it appears from the record that [Ms. McDougall] spent 75% of the time in her position as an assistant principal evaluating staff and disciplining students while less than 30% of the Director’s time will be spent on these functions.”

The Commissioner concluded that Ms. McDougall did not met her burden of proving that the duties of the two positions were similar within the meaning of Education Law §3013(3)(a) or that the two positions were in the same tenure area. Accordingly, the Commissioner ruled that Ms. McDougall was not entitled to appointment to the position of K-12 Director of Curriculum, Instruction and Professional Development from the preferred list.

* Civil Service Law §81 sets out the rights of employees in the classified service with respect to use of preferred lists for the purpose of reinstatement of employees laid-off from their position to the same or a similar position, or a position in a lower grade.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16505.pdf

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Terminated employee’s work-related dishonest constitutes disqualifying misconduct for the purposed of eligibiity for unemployment insurance benefits

Terminated employee’s work-related dishonest constitutes disqualifying misconduct for the purposed of eligibiity for unemployment insurance benefits

2013 NY Slip Op 05499, Appellate Division, Third Department

The claimant for unemployment insurance was terminated from her position because she [1] took a computer cord from the workplace without permission so that she could use it on her personal computer at home and [2] using the employer's company cellular phone for her personal use in violation of the employer's policy, causing the employer to incur additional charges for the excess minutes.

The Unemployment Insurance Appeal Board disqualified her from receiving benefits, holding that the claimant was terminated from her employment for disqualifying misconduct.

The Appellate Division sustained the Board’s determination, noting that "An employee's apparent dishonesty, including the theft of property, has been held to constitute misconduct disqualifying him or her from receiving unemployment.”

Under the circumstances, said the court, substantial evidence exists in the record supporting the Board's ruling that claimant's employment "ended under disqualifying circumstances."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05499.htm

A reprimand “to be expunged” from the employee’s personnel record if he or she does not repeat to offense within a specified period of time is not a penalty authorized by law

A reprimand “to be expunged” from the employee’s personnel record if he or she does not repeat to offense within a specified period of time is not a penalty authorized by law

Decisions of the Commissioner of Education, Decision 10933

A §3020-a disciplinary panel found a teacher guilty of insubordination as the result of her refusal to act as a chaperone at a school event. The penalty imposed by the panel: “… a reprimand, to be expunged from (the teacher’s personnel) records if for the next two years there are no further disciplinary problems of a similar nature”.

The District appealed the penalty imposed by the panel to the Commissioner of Education, contending that such a penalty was not authorized by §3020-a of the Education Law.

The Commissioner agreed, finding that although the penalty to be imposed, a reprimand, was authorized by §3020-a, the disciplinary panel lacked any authority to direct the District to later expunge the reprimand from the teacher’s file for “good behavior.” The Commissioner then exercised his authority to impose an appropriate disciplinary penalty on the employee and ruled that a reprimand would be appropriate under the circumstances.

The Attorney General has considered the question of an employer to remove a reprimand from an employee’s personnel file. In Opinion of the Attorney General 81-28, the Attorney General said that an appointing authority that wishes to clear the record of an employee who had in the past misbehaved but who has since performed well should have that option, observing that “public policy is not served by forever blighting the employee’s personnel file.”

Accordingly, although a §3020-a disciplinary panel may not direct the appointing authority to “remove” any reference to the penalty from the individual’s personnel file, the appointing authority, in the exercise of its discretion, may elect to do so.

Presumably the same rationale would be applied with respect to penalties set out in other statutes providing for initiating disciplinary action against an employee for alleged misconduct such as §75 of the Civil Service Law, §155 of the Town Law, §137 of the Second Class Cities Law and §8-804 of the Village Law.

However, no such limitation would apply with respect to penalties imposed by an arbitrator pursuant to a negotiated alternative to a statutory disciplinary procedure as the arbitrator is generally permitted to impose such penalty as he or she deems appropriate under the circumstances.

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