The doctrine of collateral estoppel bars relitigating a complaint based on the same issues as earlier litigated

The doctrine of collateral estoppel bars relitigating a complaint based on the same issues as earlier litigated
Parker v Blauvelt Volunteer Fire Company, App. Div., 251 A.D.2d 389 [Affirmed on basis of collateral estoppel, 93 N.Y.2d 343]

It is a basic principle of law that an individual may not relitigate a claim that he or she had early presented to, and had been considered and decided by, the courts.

Kimball Parker was dismissed from his position as a volunteer firefighter with Blauvelt for insubordination following a disciplinary hearing conducted by the Orangetown Town Board.

Parker challenged his dismissal pursuant to Article 78 of the Civil Practice Law and Rules, seeking an order directing his reinstatement and monetary damages. As part of his Article 78 action Parker complained that his 42 USC 1983 civil rights had been violated.

His 42 USC 1983 civil rights action was dismissed without prejudice by a Supreme Court justice while his Article 78 appeal from his termination was transferred to the Appellate Division. The Appellate Division considered and rejected Parker’s Article 78 petition, confirming his dismissal from the fire company by the town board. [Parker v Blauvelt Volunteer Fire Company, 222 AD2d 437].

Parker then commenced a civil rights action, essentially raising the same issues previously considered in his Article 78 action. Blauvelt moved for summary judgment and the Appellate Division agreed on the grounds that the issues and facts raised by Parker were the same in both actions.

The court noted that Parker had a “full and fair opportunity to challenge and defend against them” and therefore, even if the remedy sought under 42 USC 1983 was different from those he had sought in his Article 78 action, further consideration of his 42 USC 1983 claims were barred by the doctrine of res judicata [a matter judicially acted upon] and collateral estoppel [there was a conclusive judgment in another action].

Having obtain the relief sought on the basis of one of several arguments further appeal is precluded as the individual is no longer an aggrieved party

Having obtain the relief sought on the basis of one of several arguments further appeal is precluded as the individual is no longer an aggrieved party
Hoover v DiNapoli, 2010 NY Slip Op 06127, Decided on July 15, 2010, Appellate Division, Third Department

David A. Hoover worked part time as a labor relations specialist for Erie 1 BOCES from February 1, 1988 through October 31, 1995 and obtained member service credit in the New York State and Local Employees' Retirement System in connection with that employment.

In April 2008, the State Comptroller announced new regulations for the Retirement System specifically defining how local governments and school districts should classify professional service providers as employees or independent contractors.

Hoover was told that under the new regulations, his member service credit for his work at BOCES between 1988 and 1995 was revoked as he had served with the BOCES as an independent contractor rather than an employee. Hoover filed an Article 78 petition seeking restoration of his member service credit contending that:

1. Rescinding such credit constituted “an improper retroactive application of the new regulations in violation of the NY Constitution;”

2. A violation of his due process rights; and

3. The Comptroller’s decision to invalidate his member service credit was arbitrary and capricious.

Supreme Court dismissed Hoover's state constitutional claims for failure to exhaust his administrative remedies, but, nevertheless issued a decision on the merits granting his petition on the basis of his due process claim. The court order provided that "the determination to revoke [Hoover's] service credit with Erie 1 BOCES for the years prior to 1995 is vacated and annulled."

Despite having prevailed in that he had obtained the remedy that he had sought, Hoover appealed the Supreme Court's judgment.

The Appellate Division dismissed his appeal, noted that having "obtained the full relief sought … annulment of the Comptroller's determination and reinstatement of his service credit," Hoover is no longer an aggrieved party. The fact that he had asserted multiple grounds upon which he contended that the relief he demanded could be granted, his having prevailed on the basis of one of the theories he advanced rendered consideration of his other arguments moot.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06127.htm

Appeals to the Commissioner must be filed within 30 days of the act or omission for which redress is sought absent the Commissioner excusing the delay

Appeals to the Commissioner must be filed within 30 days of the act or omission for which redress is sought absent the Commissioner excusing the delay
Appeal of Michael P. Thomas seeking the removal of High School Superintendent Francesca Pena, Decisions of the Commissioner of Education, Decision No. 16,090

On September 4, 2008, Michael P. Thomas a certified, tenured mathematics teacher in the New York City school district, asked Superintendent Francesca Pena to file charges against Principal David J. Jimenez for certain actions, including alleged retaliatory actions against Thomas for reporting the misuse of Title I funds and scoring irregularities on a Regents examination.

On or about November 20 2008, Pena advised Thomas that she had referred the matter to the Special Commissioner of Investigation for the New York City School District. In May 2009, Thomas wrote Pena requesting the results of the investigation, Pena did not respond to Thomas.

Thomas appealed to the Commissioner of Education seeking the removal of Pena for “neglect of duty,” contending that she had failed “to take all necessary steps to ensure the integrity of community district operations.” He also asked the Commissioner to remove other administrators “for allegedly falsifying the results of a Regents examination, retaliating against [him] for reporting such alleged scoring irregularities and the misuse of Title I funds.”

The Commissioner dismissed Thomas’ appeal as untimely.

The Commissioner said that Thomas asked that Pena investigate his allegations in 2008. After Pena informed him that she referred matter to SCI in November 2008, Thomas asked Pena for the results of the investigation in May 2009 and asked her to respond within 10 business days. Thomas argued on May 28, 2009, which he contended was the 10th business day after Pena had received his letter, the 30-day period available to him to commence his appeal began to run.

The Commissioner disagreed with Thomas’ argument. He said that Pena responded to Thomas in November 2008 “with respect to the actions complained of in this appeal.” Accordingly, said the Commissioner, Thomas’ May 2009 letter, ”like a request for reconsideration, does not extend the time within which an appeal must be commenced.”

The Commissioner explained 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. As the affidavits of service reflect that the petition was served on the several respondent administrators in 2009 and the events complained of occurred more than 30 days prior to those dates, the Commissioner ruled that appeal filed by Thomas was untimely.

The Commissioner’s decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume50/d16090.htm

Running for elected office could adversely affect individual’s continuation in his or her public employment

Running for elected office could adversely affect individual’s continuation in his or her public employment
Cusumano v Board of Commissioners, App. Div., 251 A.D.2d 404,

The Cusumano case shows that the decision of a public employee to run for public office may have an unexpected, and unintended, impact on his or her public employment.

In December the Franklin Square and Munson Fire Department held an election for members of its Board of Commissioners. Both Louis R. Cusumano and Theodore Braun submitted valid nominating petitions to run for a vacancy on the board and their names were placed on the ballot.

On the day of the election, Braun, a New York City police officer, asked the board to remove his name from the ballot. He said that he had learned that Section 1129 of the New York City Charter prohibited city police officers that accepted a nomination for elective office from continuing their employment with the city. The board refused to remove Braun’s name from the ballot. To further complicate matters, Braun was elected to the vacancy.

Cusumano sued, seeking an order directing that the election result be set aside, claiming that the board had “improperly failed” to honor Braun’s attempt to decline his nomination. Although a State Supreme Court justice granted Cusumano’s petition, the Appellate Division reversed that ruling.

The Appellate Division pointed out that while Section 176(7) of the Town Law allows a fire district resident to file a nominating petition, there is no provision in the Town Law authorizing the removal of a candidate’s name from the ballot once he or she has filed a lawful petition.

In addition, the court commented that as “Braun was properly nominated ... the fact that he subsequently learned that he could not continue his employment as a New York City police officer if he accepted the nomination did not disqualify him from running for office.”

Accordingly, the Court concluded that the relief Cusumano requested was not warranted because the board’s refusal to remove Braun’s name from the ballot “cannot be considered a failure to perform a duty enjoined upon it by law....”

The decision is silent as to the impact of Braun’s nomination for, and election to, the board on his employment as a New York City police officer.

Educator's ignoring repeated warnings not to engage in physical contact with students held justified termination

Educator's ignoring repeated warnings not to engage in physical contact with students held justified termination
Forte v Mills, Appellate Division, 250 A.D.2d 882

According to his supervisors at the Manhasset Union Free School District, physical educator teachers Garry Forte had a habit of poking female students in the back and occasionally “snapped their bra straps” during physical education class. After he failed to heed repeated warnings against engaging in physical contact with his students, he was served with disciplinary charges pursuant to Section 3020-a.

A Section 3020-a disciplinary hearing panel found Forte guilty of conduct unbecoming a teacher and insubordination. The panel recommended that Forte be dismissed from his position. The Commissioner of Education sustained the hearing panel’s determination and the penalty imposed.

Forte appealed the Commissioner’s determination. The Appellate Division rejected his appeal, finding that the determination (1) was neither arbitrary nor capricious; (2) was not affected by an error of law; and (3) had a rationale basis.

The decision points out that Forte admitted that he had been orally cautioned against touching students and that he continued to do so “as part of his motivational and instructional technique.” Based on the testimony of witnesses and Forte’s admission, the court said that it found no basis to overturn the Commissioner’s determination.

As to the penalty imposed, dismissal, the Appellate Division said that “dismissal is appropriate where a teacher, having been repeatedly warned against physical contact with students, fails to avoid such contact which, regardless of its purpose, may be interpreted by those students as sexually suggestive or harassing.”

In addition, the court pointed out that with Forte’s “wholly disregarding the progressive discipline imposed in the past,” the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.