Age requirements and eligibility for taking a test

Age requirements and eligibility for taking a test
Beloten v Diamons, 276 AD2d 438

The Beloten case involves a relatively novel issue: age qualification for appointment to positions in the competitive class.

The case arose after New York City issued an announcement for an examination for firefighter allowing only emergency medical technicians and paramedics [EMTs] not more than 29 years old as of the beginning of the application period to take the examination.

Scott R. Beloten and a number of other EMTs took and passed the written test. However they were disqualified and not permitted to take the physical agility portion of the examination because of age: all were more than 29 years of age at the beginning of the application period.*

Beloten objected, contending that the upper age limit for firefighters applies only to candidates for that position taking an open competitive exam, and that to apply the age limit to candidates taking a promotional exam, as [the City] did, would violate Section 54 of the Civil Service Law and anti-discrimination statutes.

The Appellate Division said that two provisions of the Civil Service Law were relevant in resolving this case: Sections 52(1) and 54.

Section 54 allows civil service authorities to adopt reasonable age requirements with respect to open-competitive, entry level positions. Section 52(1) provides for the filling of vacancies by promotion of persons holding positions in lower grades that are in direct line of promotion or, under certain circumstances, from lower grades in related or collateral lines of promotion.

Reading Sections 52(8) and 54 together, the court concluded that age requirements for purposes of taking a promotional exam are prohibited when the promotion would be from a grade that is in direct line, and permitted when the promotion would be from a grade that is in a related or collateral line.

The Appellate Division rejected the theory that this was a promotion situation for the EMTs, ruling that because the position of firefighter is an entry-level position in that there is no direct lower position to be promoted from, the only way a person could become a firefighter was to sit for an open competitive examination.**

Deciding that EMT applicants for the position of firefighter were more akin to entry-level applicants taking an open exam for that position than to a firefighter taking a closed promotion examination for a higher level title, the court ruled that:

... notwithstanding that the exam petitioners took was not open, in that participation was limited to current Fire Department employees having certain emergency medical titles, we conclude that Civil Service Law Section 54 did not apply to prohibit an age requirement, and that Civil Service Law Section 52(8) did apply to require that petitioners satisfy the eligibility requirements for taking the entry-level exam for firefighter, including the requirement in Administrative Code Section 15-103 that they not be more than 29 years old.

* Presumably none of the plaintiffs was eligible for an adjustment to his or her chronological age pursuant to the provisions of Section 243.10-a of the Military Law.

** The EMTs conceded that the examination announcement indicated that their positions were in a collateral, not direct, line of promotion to the position of firefighter.

DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS

DiNAPOLI WARNS OF A SWEEPSTAKES SCAM USING FAKE STATE CHECKS
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli today warned of a sweepstakes scam involving fraudulent checks that appear to have been issued by New York State.

“These days many people could use some extra cash; this particular scam is especially shameful because it’s occurring during the holiday season at a time when people can be particularly vulnerable,” DiNapoli said.

“People need to remember that what sounds too good to be true all too often is. No legitimate check from the State of New York would ever be used as part of a mystery shopper program. If you receive one of these fraudulent checks, please report it to the police.”

The fraud works this way: scammers send potential victims a letter telling them that they won hundreds of thousands of dollars in a sweepstakes prize from a “USA Mega” drawing that allegedly took place in August. A company calling itself Alpha Finance Services claims to have been assigned to inform winners of their prize and to pay them off accordingly.

The company’s supposed address is located in Nova Scotia, Canada.

The letter asks individuals to contact a claims agent during daytime hours between Monday and Saturday to “activate” a phony check that has been mailed to them. The "check" included in the letter is counterfeit but looks like a New York State check.

This check allegedly would cover the recipient’s tax liability that is attached to the prize winning.

To activate the phony check, the recipient is directed to send thousands of dollars of their own money to the agent. It even “cautions” recipients of the letter not to act on the notice until they have contacted this claims agent “to avoid cases of misappropriation and mishandling of prize monies.”

Anyone with questions or concerns about this scam should contact local law enforcement officials or the New York State Comptroller’s office toll free at 1-888-OCS-4555.

In an appeal to the Commissioner of Education the petitioner has the burden of proof and must establish his or her right to the relief requested

In an appeal to the Commissioner of Education the petitioner has the burden of proof and must establish his or her right to the relief requested
Appeal of Wornum seeking the removal of the Superintendent of the Westbury Union Free School District, Decisions of the Commissioner of Education, Decision #16,166

Larry D. Wornum, than a member of the School Board, asked the Commissioner of Education to remove Constance R. Clark-Snead from her position of Superintendent of the Westbury Union Free School. The Commissioner denied Wornum’s application.

Wornum alleged that that Clark-Snead had engaged in a pattern of “bad acts” including misleading the School Board on a number of occasions, authorizing School District expenditures without board approval; filing an appeal with the Commissioner of Education without School Board approval; and violating the State's Freedom of Information Law and its Open Meetings Law.

As to Wornum's "application in chief," a member of a board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

However, in an appeal to the Commissioner, the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief is placed on the petitioner.

The Commissioner initially addressed a number of procedural issue and determined that:

[1] certain documents submitted by Wornum were not verified as required by 8 NYCRR §275.5(a);

[2] there was no “proof of service’ which precluded his considering such submissions;

[3] he lacked jurisdiction to consider FOIL matters as Public Officers Law §§89 and 107 vest exclusive jurisdiction over complaints alleging violations of FOIL and the Open Meetings Law in State Supreme Court; and

[4] that Wornum’s appeal to the Commissioner was untimely filed with respect to a number of his allegations.

As to Wornum’s surviving allegation – Clark-Snead misled him as to her efforts to secure space for district pre-kindergarten classes – the Commissioner determined that Wornum's allegations "were conclusory" and that Wornum did not provide any documentary evidence to support his charge. Thus, said the Commissioner, Wornum “failed to meet his burden of proof and his claims must be dismissed.”

The Commissioner then addressed Clark-Snead’s request for a Certificate of Good Faith* pursuant to Education Law §3811(1)(c).

Noting that “it is appropriate to issue such Certification unless it is established on the record that [Clark-Snead] had acted in bad faith,” The Commissioner said that as there had been no such finding, Clark-Sneed was entitled to a certificate of good faith.

* A Certificate of Good Faith permit certain school districts or BOCES to reimburse individuals for legal fees and expenses, and where appropriate, damages for which the individual was held liable, incurred in the course of his or her participating in, or resulting from, the individual's appearing in a judicial or quasi-judicial proceeding, including those incurred in, or resulting from, a proceeding before the Commissioner of Education, pursuant to being instructed by a resolution adopted "at a district meeting to defend any action brought against them."

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16166.htm


Other recent decisions of the Commissioner of Education:

Appeal of ARK COMMUNITY CHARTER SCHOOL from action of the Board of Education of the City School District of the City of Troy regarding nursing services. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16169.htm

Appeal of SUSAN ROTH from action of the Board of Education of the South Country Central School District, Montauk Bus Transportation, LLC and Coastal Charter Service Corp. regarding transportation contracts. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16171.htm

Appeal of N.C., on behalf of her daughter V.C., from action of the New York City Department of Education regarding immunization. Posted at:
http://www.counsel.nysed.gov/Decisions/volume50/d16172.htm

Exhausting of Taylor Law contract remedies

Exhausting of Taylor Law contract remedies
Kaufmann v Rochester CSD, App. Div., Fourth Dept., 275 AD2d 890

The Rochester Board of Education attempted to have Susan K. Kaufmann’s lawsuit dismissed on the theory that Kaufmann had not exhausted her administrative remedies because she did not file a contract grievance concerning her complaint.

The Appellate Division, Fourth Department, quickly disposed of the district’s argument by pointing out that Kaufmann did not allege that the district had violated her rights under the collective bargaining agreement but rather she alleged that the district had violated her rights under Section 2585(2) of the Education Law.

Accordingly, said the court, Kaufmann was not required to file a grievance under the collective bargaining agreement concerning her complaint.

Education Law Section 2585(2) addresses situations involving the abolishment of one position and the creation of another position having similar duties and provides that the individual encumbering the abolished position shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been of faithful, competent service in the office or position he has filled.
NYPPL