An Article 78 challenge to a school board's tenure determination must be initiated within four months of the determination becoming “final and binding” upon the aggrieved party

An Article 78 challenge to a school board's tenure determination must be initiated within four months of the determination becoming “final and binding” upon the aggrieved party

Garofano v Board of Educ. of Ramapo Cent. Sch. Dist., 2016 NY Slip Op 03506, Appellate Division, Second Department

The Ramapo Central School District appointed Paul D. Garofano as a foreign language teacher effective September 1, 2004. Garofano’s appointment was subject to his satisfactorily completing a three-year probationary period. However, throughout his employment with the district, Garofano’s "job title" was Instructional Technology Facilitator and he was granted tenure in the tenure area of "Instructional Technology" effective September 1, 2007.

"Instructional Technology," however, is a “nonexistent tenure area” under the Rules of the Board of Regents.*

On January 31, 2013, Garofano was informed that the Board of Education had become aware that it had appointed him to a "nonexistent tenure area" and, during a special meeting held on January 30, 2013, the Board had adopted a resolution changing his tenure area to the tenure area of School Media Specialist (Educational Communications), retroactive to September 1, 2007.

In adopting the resolution the Board noted that its basis for assigning Garofano to the School Media Specialist (Educational Communications) tenure area was because had a valid Educational Technology Specialist Initial Certificate from the New York State Education Department at the time he was granted tenure in the “nonexistent tenure area.” In addition, the Board's resolution noted that Garofano did not consent to his retroactive assignment to the School Media Specialist (Educational Communications) tenure area and contended that he should be assigned to the Elementary Education tenure area instead.

Four months later the Board voted to abolish a number of positions, including at least one position in the School Media Specialist (Educational Communications) tenure area. As Garofano was the least senior teacher of that tenure area, his employment was terminated, effective June 30, 2013.**

About September 19, 2013, Garofano filed an Article 78 petition challenging [1] the Board’s January 30, 2013, determination reassigning him to the tenure area of School Media Specialist (Educational Communications) rather than Elementary Education and [2] his subsequent termination. 

Supreme Court dismissed Garofano’s petition as time-barred, which ruling was affirmed by the Appellate Division.

The Appellate Division explained that a CPLR Article 78 review must be filed within four months of the date when the administrative determination to be reviewed became final and binding upon the aggrieved party and a determination becomes "final and binding" when two requirements are met: [1] the completeness (finality) of the determination, and [2] the exhaustion of administrative remedies. 

In the works of the court, Garofano did not commence this proceeding until September 19, 2013, nearly eight months after the Board adopted its January 30, 2013 resolution reassigning him to the tenure area of School Media Specialist (Educational Communications).

Notwithstanding Garofano argument to the contrary, the Appellate Division ruled that the Board’s action in reassigning Garofano to the tenure area of School Media Specialist (Educational Communications) did not become "effective" at a later date, nor did the [Garofano] first become aggrieved by the action upon his termination on June 30, 2013. The court said that the Board's action was complete and became effective immediately, on January 30, 2013.

Accordingly, the Supreme Court properly determined that the proceeding was barred by the statute of limitations.

* 8 NYCRR 30-1.8(b) provides for tenure areas of: (4) school media specialist; (5) school media specialist (library); and (6) school media specialist (educational communications)

** Presumably Garofano’s name was placed on the preferred list for School Media Specialist (Educational Communications) created as the result of the layoff.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_03506.htm
[Motion for leave to appeal denied]

____________________

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html

____________________

Worker Classification: Employee or Independent Contractor?

Worker Classification: Employee or Independent Contractor?

An Internal Revenue Service Webcast

This Webcast will be online on Thursday, May 12, 2016 at 2 p.m.(Eastern)

The link to register for this Free Webcast is at:

https://www.webcaster4.com/Webcast/Page/925/14635

This same link will be used to log on to the Webcast on May 12, 2016.

Learn about:

Why this matters

Recognize Control Factors

Benefits of Voluntary Compliance

How the Form SS-8 can help

Resources:

Government Workers: Employees or Independent Contractors?
Overview of the issue at https://www.irs.gov/Government-Entities/Federal,-State-&-Local-Governments/Government-Workers-Employees-or-Independent-Contractors

Independent Contractor - Self-Employed or Employee? 

Details regarding the issue at https://www.irs.gov/Businesses/Small-Businesses-&-Self-Employed/Independent-Contractor-Self-Employed-or-Employee

Evaluating claims of mitigating circumstances in considering challenges to the disciplinary penalty imposed by the appointing authority

Evaluating claims of mitigating circumstances in considering challenges to the disciplinary penalty imposed by the appointing authority
Gomez v Kelly, 2016 NY Slip Op 03582, Appellate Division, First Department [Gomez II]

Manuel Gomez, a New York City Police Officer, was found guilty of disciplinary charges that alleged he brandished his gun during the course of a violent off-duty domestic dispute, pointed the firearm at the civilians who were attempting to assist the victim, failed to comply with the responding police officers' instructions, and resisted being handcuffed. The penalty imposed by the New York City Commissioner of Police in Gomez II: termination of Gomez’s employment as a police officer.

Gomez appealed but the Appellate Division dismissed his petition explaining that the finding that he was guilty of the disciplinary charges in Gomez II was supported by substantial evidence, including testimony of civilian witnesses and police officers.  The court said that “[t]here exists no basis to disturb the credibility determinations of the Hearing Officer” and sustained the penalty imposed by the Commissioner, dismissal from the New York City Police Department.

In an effort to “mitigate” the penalty imposed, dismissal, Gomez argued that termination was excessive in light of his excellent service record in the department and in the military. The Appellate Divisions said that this argument was unavailing in light of his disciplinary history, citing Gomez v Kelly, 55 AD3d 305, reversed 12 NY3d 883 [Gomez I].

In Gomez I the Appellate Division said that substantial evidence supported the findings that Gomez violated [1] his commanding officer's order to terminate his involvement in a criminal investigation; [2] failed to take possession of drugs during a police department integrity test; [3] failed to voucher his helmet, mace and shield before leaving for active military duty; [4] retrieved his service handgun before the official date of his discharge from active military duty; and [5] failed to report a domestic incident to the department. The court also noted that “[t]here is no basis to disturb the hearing officer's rejection of [Gomez’s] explanations for these actions.”

The Appellate Division, however, held that the penalty imposed by the Commissioner, a one-year “dismissal probation” and a 30-day forfeiture of annual leave credits, was “excessive in light of the mitigating circumstances, i.e., [Gomez’s] several tours of active military duty, including a year in Afghanistan for which he was decorated, and the substantial pay lost in connection with his military service.”

The Commissioner appealed and the Court of Appeals reversed the Appellate Division’s ruling, explaining that it could not conclude that “the penalty . . . imposed by the Commissioner shocks the judicial conscience.”

The decision in Gomez I is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2008/2008_07181.htm

The decision in Gomez II is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2016/2016_03582.htm

 _____________________ 

 A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

 _____________________