Concerning obtaining a court order in the nature of a writ of mandamus

In this CPLR Article 78 action the Appellate Division noted that "Mandamus* to compel performance [by a public officer or agency] is an extraordinary remedy that is available only in limited circumstances", citing Matter of Hene v Egan, 206 AD3d 734. The court explained "[M]andamus will lie against an administrative officer only to compel him or her to perform a legal duty". 

Citing Matter of Antwine v Evans, 219 AD3d 480, the Appellate Division said a petitioner seeking mandamus to compel a public official to act must "demonstrate a clear legal right to the relief sought".

The Appellate Division then affirmed Supreme Court's ruling granting the County's motion dismiss the Plaintiff's petition, noting that Plaintiff had failed to identify any legal duty incumbent on the County that would support issuing such a "writ". 

Further, opined the Appellate Division, the action the Plaintiff sought was not a purely ministerial act, but rather an expressly discretionary act, requiring notice, an administrative hearing, and a finding supported by substantial evidence of violation of the relevant provision or provisions of law, rule or regulation.

* Other such ancients writs include a writ of prohibition issued by a higher tribunal to a lower tribunal to "prohibit" adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of injunction - a judicial order preventing a public official from performing an act; the writ of certiorari, compelling a lower court to send the record of a case to the higher tribunal for review by the higher tribunal; and the writ of quo warranto [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of surviving ancient writs.

Click HERE to access the decision of the Appellate Division posted on the Internet.

Employer Contributions to the New York State and Local Retirement systems for 2025-2026 announced

On September 3, 2024, New York State Comptroller Thomas P. DiNapoli announced employer contributions rates for the New York State and Local Retirement System [NYSLRS] for State Fiscal Year [SFY] 2025-26. Employers’ average contribution rates will increase from 15.2% to 16.5% of payroll for the Employees’ Retirement System [ERS] and from 31.2% to 33.7% of payroll for the Police and Fire Retirement System [PFRS].

NYSLRS is made up of these two systems, which pay service and disability retirement benefits to state and local public employees and death benefits to their survivors. There are nearly 3,000 participating employers in ERS and PFRS, and more than 300 different retirement plan combinations. In the SFY that ended March 31, 2024, NYSLRS paid out nearly $16.2 billion in benefits.

“Despite global tensions and market volatility, our state’s pension fund remains one of the strongest and best funded in the nation,” DiNapoli said. “These rates – in addition to our prudent management and long-term strategy – will help ensure public employees and their families receive the benefits that they have earned.”

Employer rates for NYSLRS are determined based on investment performance and actuarial assumptions recommended by NYSLRS’s actuary, who is required to review the actuarial assumptions and issue an annual report. The recommendations are reviewed by the independent Actuarial Advisory Committee and approved by DiNapoli. In addition to investment performance, other factors that impacted rates included inflation, higher salaries, recent legislative changes (including reforms to tier 6) and member retirement rates.

In 2012, DiNapoli began providing employers with access to a two-year projection of their annual pension bills. Employers can use this projection in the preparation of their budgets. Projections of required contributions vary by employer depending on factors such as the types of retirement benefit plans adopted, salaries paid and the distribution of employees among the six membership tiers.

Payments based on the new rates are due by Feb. 1, 2026, but employers receive a discount if payment is made by Dec. 15, 2025.

The New York State Common Retirement Fund’s long-term assumed rate of return will remain at 5.9%. DiNapoli has been a leader in the trend of public pension funds lowering their assumed rates of return to better enable New York to weather volatile markets. The median investment return assumption for public pension funds was 7% in July 2024, according to the National Association of State Retirement Administrators. The Kentucky Employees Retirement System was the only state with an assumed rate of return lower than NYSLRS.

DiNapoli also announced that NYSLRS had a funded ratio of 93.2% as of March 31, 2024. NYSLRS is consistently ranked among the nation’s best funded retirement systems. A high funding ratio means NYSLRS has the funds available to pay out retirement benefits to its more than 1.2 million members, which includes over 710,000 current and former state and local government employees and more than 520,000 retirees and their beneficiaries.

Click HERE to access the Actuary's Annual Report posted on the Internet.

An analysis of an application submitted to the Commissioner of Education seeking the removal of a member of a board of education

Petitioner in this appeal to the New York State Commissioner of Education sought the removal of a member of a New York State school board, hereinafter referred to as “respondent”, from the school board. 

The decision of the Commissioner of Education, Decisions of the Commissioner of Education No. 18,474, is set out below:

"Petitioner’s child (“student”) attends respondent’s high school.  During a board meeting on March 13, 2023, respondent made several remarks concerning posters advertising the middles school’s Genders and Sexualities Alliance (“GSA”). 

"Respondent argued that the GSA could be “better named” because the word “sexualities” was salacious.  Respondent further opined that the board had a degree of authority to regulate student clubs, citing the “North American Man Boy Love Association” and the (hypothetical) “intersex student pole dancing instruction club” as examples.

"At subsequent board meetings on March 27 and April 19, 2023, members of the public made comments supporting, and denouncing, respondent’s statements.  The student spoke during the public comment portion of the April 19 board meeting, objecting to of respondent’s statements during the March 13 board meeting and sharing their personal experience as a member of the LGBTQIA+ community.

"As pertinent here, respondent made additional remarks during a September 11, 2023 board meeting.  During these remarks, respondent addressed the student by name.  This application ensued.

"Petitioner argues that respondent’s comments at the March 13 and September 11, 2023 board meetings warrant his removal from the board. 

"Respondent contends that the application should be dismissed as untimely.  Respondent also contends that petitioner’s allegations do not support the relief requested.

"First, I must address a procedural matter.  Following commencement of this application, petitioner submitted additional evidence in the form of legal costs incurred by the board in connection with the student’s Dignity for All Students Act (“Dignity Act”) complaint filed against respondent.  Additional affidavits, exhibits, and other supporting papers may be submitted only with the prior permission of the Commissioner (8 NYCRR 276.5).  While this provision permits the submission of additional evidence, it does not permit parties to raise new claims or defenses for which notice has not been provided (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).

"Similarly, additional submissions should not raise new issues or introduce new exhibits that are not relevant to the pleadings (Appeal of Casey-Tomasi, 57 Ed Dept Rep, Decision No. 17,301; Appeals of Gonzalez, 48 id. 405, Decision No. 15,898).  The board’s legal costs incurred in response to the student’s Dignity Act complaint are not relevant to the issues presented in this application.  As such, they will not be considered.

"The application must be denied as untimely.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The 30-day timeframe also applies to a removal application pursuant to Education Law § 306 (8 NYCRR 277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id. 383, Decision No. 15,892).  Petitioner did not commence the instant appeal until February 14, 2024, almost a year after the March 2023 meeting and more than five months after the September 2023 meeting.

"Petitioner asserts that the petition is timely because it was commenced within 30 days of the board’s denial of the student’s Dignity Act complaint concerning the above remarks.  This is an insufficient basis to excuse petitioner’s delay in commencing the removal proceeding (see Appeal of Carlson, 63 Ed Dept Rep, Decision No. 18,304; Application of S.D., 60 id., Decision No. 18,009; Appeal of D.B., 59 id., Decision No. 17,807).  “It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring an appeal to the Commissioner” (Appeal of J.B., 62 Ed Dept Rep, Decision No. 18,245).  Respondent’s statements were made during public meetings, which provided petitioner with constructive notice thereof (Appeal of L.N. et al., 61 Ed Dept Rep, Decision No. 18,105).[1]  Accordingly, the application must be denied.

"Although the application must be denied as untimely, respondent’s March 2023 remarks—particularly his invocation of a pedophile advocacy organization while discussing the propriety of the GSA—were unnecessarily inflammatory.  His argument that the word “sexualities” is provocative is unsupported by the record.  Respondent’s own code of conduct uses the phrases “sex” and “sexual orientation” several times—as does as a plain language summary thereof designed for elementary school students.[2]  I remind respondent that board members may not “us[e] a pretext of inappropriateness or obscenity” to disparage “lesbian, gay, bisexual, transgender, nonbinary and gender expansive people ...” (Appeal of Moms for Liberty of Wayne County and Marchitell, 63 Ed Dept Rep, Decision No. 18,402).

"Additionally, respondent prolonged the instant controversy by defending his remarks over the next several months.  Board members take an oath of office to uphold the law and faithfully discharge their duties (NY Const, art XIII, § 1; Public Officers Law § 10; Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315).  This includes the “duty to proceed with constructive discussions aimed at achieving the best possible governance of the school district” (Appeal of Williams, 61 Ed Dept Rep, Decision No. 18,116).  The time spent addressing respondent’s remarks and the ensuing controversy was far from constructive.  I admonish respondent to avoid such digressions in the future.

"In light of this disposition, I need not address the parties’ remaining arguments.

"THE APPLICATION IS DENIED."

Footnotes:

[1] Alternatively, petitioner demonstrated his actual knowledge of the March and September 2023 comments at meetings of the board on March 27, 2023 and September 25, 2023, respectively. 

[2] Mohonasen Central School District, “Districtwide Code of Conduct,” available at https://www.mohonasen.org/about-us/policies-and-procedures/districtwide-code-of-conduct/(link is external)  and “Code of Conduct Plain Language Summary for Elementary School Students,” available at https://www.mohonasen.org/code-of-conduct-plain-language-summary-for-elementary-students/(link is external) (last accessed Aug. 2, 2024).

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