In an appeal to the Commissioner of Education the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief

In this appeal to the Commissioner of Education the Petitioner [Doe]* sought the removal of a member of the Board of Education of School District [Respondent], alleging that the Respondent violated Doe's right to gainful employment and his right as a public employee to “engage in political discourse” on several occasions, including during [a] board meeting.  Doe "generally claims that Respondent "has harassed him since he was elected president of a local branch of the National Association for the Advancement of Colored People in 2015 and referenced several incidents between July 2018 and the spring of 2019 which allegedly demonstrate [Respondent's] disparate treatment of African American employees.:

In addition, Doe argued that Respondent “intentionally and wrongfully” divulged confidential information learned in an executive session [of the Board] while the executive session was ongoing."  

For relief, petitioner requests that respondent be removed as a trustee.  Petitioner also requests that respondent be ordered to comply with board policies, the New York State Constitution, and her oath of office. 

Addressing a number of procedural issues, the Commissioner opined:

1. Most of Doe's claims "must be dismissed as untimely", explaining that an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown, citing 8 NYCRR §275.16.

2. An appeal to the Commissioner pursuant to Education Law §310—or, in this instance, Education Law §306—is not an appropriate forum to adjudicate claims of unlawful employment discrimination and retaliation and such claims “are more appropriately resolved by a fair employment practice agency or a court of competent jurisdiction,” citing Appeal of Moss and Sealy, 60 Ed Dept Rep, Decision No. 18,001.

Turning to the merits of Doe's appeal, the Commissioner said a member of a board of education, as a public officer, takes an oath of office to uphold the law and faithfully discharge his or her duties and a board member must not “disclose confidential information acquired by him [or her] in the course of his [or her] official duties or use such information to further his [or her] personal interests." Further, noted the Commissioner, "It is well settled that a board member's disclosure of confidential information in violation of General Municipal Law §805-a (1) (b) may constitute grounds for such board member's removal from office pursuant to Education Law §306, citing Application of Bd. of Educ. of the City Sch. Dist. of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147 and other Decisions of the Commissioner of Education.

That said, the Commissioner noted that in a removal application or an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief. Doe, said the Commissioner, did not meet his burden of proving that Respondent disclosed confidential information learned in the course of her duties as a board member.

* Given the confidential nature of the Part 83 referral [Moral Character Actions] described herein, Petitioner has been assigned a pseudonym, Doe.  [See Appeal of Doe, 56 Ed Dept Rep, Decision No. 17,109.]

Click HERE to access the opinion of the Commissioner.

Challenging Adverse Personnel Decisions -

A 766-page E-book focusing on appealing penalties imposed following disciplinary action, adverse performance ratings, probationary terminations and the denial of unemployment insurance benefits initiated by officers and employees of New York State as an employer and its political subdivisions. For more information about this electronic handbook click HERE.

Appealing a decision of the Workers' Compensation Board denying claimant's request to reopen or rehear a prior Board decision

The Appellate Division reversed a decision by the Workers' Compensation Board which denied the claimant's [Claimant] request to reopen or rehear a prior decision.

Whether to grant an application for reopening or rehearing in the interest of justice is a matter left to the Board's discretion and Appellate Division's review of that decision is limited to whether there was an abuse of that discretion by the Board. In this instance the court found that such discretion was abused by the Board.

The court explained, "Notably, while the Board is free to reject the opinion of an expert where it finds such to be unconvincing or incredible, it may not reject an uncontradicted opinion that is properly rendered." Because the only medical opinion before the Board clearly reflects that claimant suffered a 35% SLU of the left shoulder, the Appellate Division found that the Board's denial of the application to reopen the claim to modify the decision in the interest of justice was an abuse of discretion.

Click HERE to access the full text of the court's decision.

Former town tax collector pleads guilty to offering a false instrument for filing in connection with pension fraud scheme

On November 5, 2021, State Comptroller Thomas P. DiNapoli and Orange County District Attorney David M. Hoovler announced that the former Town of Bethel, Sullivan County, Tax Collector,  Debra Gabriel, pleaded guilty before Judge Peter Feinberg in the Town of Rockland Justice Court to Offering a False Instrument for Filing in the Second Degree, in connection with a scheme to defraud the New York State and Local Retirement System.  Gabriel, 62, had resigned her public office and retired in August 2020.

The case against Gabriel is being prosecuted by Orange County District Attorney David Hoovler, appointed to serve as Special Prosecutor and Orange County Assistants District Attorney Peter Fernandez, Matthew Healy and Pakiza Sajid.

At the time that she pleaded guilty, Gabriel admitted having submitted a false "Record of Activity" with the Town of Bethel for filing with the State Comptroller.  Records of Activity are documents in which certain appointed or elected officials must record a daily detail of their hours worked and duties and certify their accuracy. The information is used to calculate their service time for retirement benefits.

An investigation of Gabriel’s Records of Activity conducted by the New York State Comptroller’s Office and the New York State Police revealed that from April 1, 2009 to Aug.  31, 2019, she falsely claimed credit for full-time work for the Town of Bethel when her actual hours were far less. For example, in 2018 and 2019, she had a full-time job with a private healthcare company, while claiming to also have worked full-time as a Tax Collector for Bethel. Her false claims increased her service credit toward retirement by more than seven years, according to Comptroller DiNapoli.

Gabriel turned over a certified check in the amount of $6,377.46 to prosecutors from the Orange County District Attorney’s Office as restitution to the State of New York for the amount of pension benefits that she was overpaid.

“Ms. Gabriel, as tax collector, was responsible for overseeing the collection of revenue for the town while at the same time she regularly filed false statements with the New York State and Local Retirement System to commit fraud,” said Comptroller DiNapoli. “Now, thanks to my partnership with District Attorney Hoovler and the New York State Police, she has been convicted and repaid the money she stole.”

District Attorney Hoovler thanked the New York State Comptroller’s Office and New York State Police for their investigation and the arrest of the defendant.  

“I thank State Comptroller DiNapoli for all the work his office did in this investigation, as well as the New York State Police who aided in the investigation and arrested the defendant,” said District Attorney David M. Hoovler. “Thefts of public monies are always serious. One of the benefits of public service is the ability to obtain a pension. Those funds will simply not be available to those who earned them if fraudulent practices are tolerated.”