Standing to submit an appeal pursuant to Education Law §310 to the Commissioner of Education

The first issue considered in this appeal to the Commission of Education concerning the termination of a probationary teacher addressed a procedural matter: persons or entities having standing to file an Education Law §310 appeal for consideration by the Commissioner of Education. 

To the extent the petitioner [Educator] in this Education Law §310 appeal sought to advance claims on behalf of her co-teacher, the Commissioner ruled that such claims must be dismissed for lack of standing. Citing Appeal of Abitbol, 57 Ed Dept Rep, and other decisions of the Commissioner of Education, the Commissioner noted that an individual may not maintain a §310 appeal "unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights."  

In other words, only persons and entities who are directly affected by the act or omission being appealed have standing to bring the appeal. Accordingly, Educator could only ask the Commissioner to consider claims of being "retaliated against and harassed" that she, herself, alleges she had suffered.

Turning to the merits of Educator's appeal, the decision notes that Education Law §2573(1)(a), provides that the New York City Department of Education [DOE] may discontinue the services of a probationary teacher “at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith.”* Further, in an appeal to the Commissioner the 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.

The Commissioner dismissed Educator's appeal, explaining that:

1. Educator had neither alleged nor proven that her discontinuance of probationary employment was for a constitutionally impermissible reason or that it violated any statute; and

2. Although Educator attributed several inappropriate or inflammatory statements to her principal, Educator offered "no proof in support of these contentions beyond her own assertions."

Citing Matter of Hawkins v. Fariña, 171 AD3d 624, the Commissioner opined that Educator "failed to carry her burden of proving that [DOE] discontinued her probationary employment for a constitutionally impermissible purpose, in violation of a statute, or in bad faith.

* See Matter of Frasier v. Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763.

Click HERE to access this decision of the Commissioner of Education.

 

An employee found guilty of excessive absences may be terminated where such unreliability is shown to have a disruptive and burdensome impact on the employer

The Director of Security [Petitioner] employed by the School District [District] had repeatedly been warned, in person and in writing, that the number and frequency of his absences was unacceptably high in consideration of his position and that his failure to improve his attendance could lead to the termination of his employment.

Petitioner subsequently was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he was guilty of "excessive absenteeism". The parties had reached a tentative settlement of these disciplinary charges when Petitioner again absented himself from work without notice. Ultimately a §75 disciplinary hearing was conducted and the hearing officer found Petitioner guilty of "certain charges of incompetence and insubordination." The District adopted the hearing officer's findings and terminated Petitioner's employment.

Petitioner commenced a proceeding pursuant to CPLR Article 78 seeking judicial review the District's determination. The Appellate Division, however, sustained the District's decision, explaining that:

1. In employee disciplinary cases, judicial review of factual findings made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence;

2. Courts may not weigh the evidence or reject the choice made by an administrative agency where the evidence is conflicting and room for choice exists;

3. A municipal employee may be terminated for incompetence and misconduct due to excessive absences caused by physical incapacity after a disciplinary hearing; and

4. The fact that the employee may have had "a 'valid' reason for each one of the individual absences is irrelevant to the ultimate issue of whether his [or her] unreliability and its disruptive and burdensome effect on the employer rendered him [or her] incompetent to continue his [or her] employment."*

Finding substantial evidence in the record supporting the hearing officer's determination that the Petitioner was guilty of incompetence and insubordination as charged and that the record showed that Petitioner "had repeatedly been warned ... his absences was unacceptably high in light of his position as head of security for the district," the Appellate Division, citing Matter of Waldren v Town of Islip, 6 NY3d 735, opined that under the circumstances the penalty of termination was not so disproportionate to the offense as to be shocking to one's sense of fairness.

The Appellate Division then confirmed the District's determination and dismissed the Petitioner's appeal on the merits.

* In Wallis v. Sandy Creek Cent. School Dist. Bd. of Educ., 79 A.D.3d 1813, the  termination of the employee was upheld where the employee had received numerous warnings about her excessive absenteeism, her absentee rate was over 60% for a period of a year and one-half and she had been found to be insubordinate.

Click HERE to access the Appellate Division's decision in the instant appeal.

 

A former member of the New York City Council found to have accepted valuable gifts and services from an organization doing business with the City fined $15,000

The New York City Conflicts of Interest Board [COIB] adopted a report by New York City Office of Administrative Trials and Hearings Administrative Law Judge Kara J. Miller in which Judge Miller recommended imposing a fine of $15,000 on a former member [Respondent] of the New York City Council [Council].

ALJ Miller determined that Respondent had accepted valuable gifts and services on 18 occasions from a not-for-profit housing organization [NFP] doing business with the City of New York while serving as a member of the Council.

The NFP received $841,000 in discretionary funding from the Council which funding was sponsored by the Respondent. The ALJ held that some of these funds were used for trips and a dinner cruise around Manhattan for senior citizens living in the Respondent's district. The Respondent, while a Council member, and members of his family, participated in these trips and accepted free accommodations at a luxury resort as well as free tickets to a dinner cruise in violation of the City Conflicts of Interest Law.* The ALJ had determined that such attendance in these events did not serve a government purpose.

The COIB agreed with Judge Miller’s findings that the free hotel accommodations and dinner cruise tickets constituted valuable gifts and that Respondent's contention that his family members were serving as volunteers at the senior events was pretextual.

* The New York City Charter §2604(b)(5) states, in relevant part: “No public servant shall accept any valuable gift, as defined by rule of the board, from any person or firm which such public servant knows is or intends to become engaged in business dealings with the city,” while COIB Rule §1-01(a) defines a valuable gift to include “any gift to a public servant which has a value of $50.00 or more, whether in the form of money, service, loan, travel, entertainment, hospitality, thing or promise, or in any other form.”

Click HERE to access Judge Miller's findings and recommendation in this matter.