The controlling statute of limitations for filing an Article 78 petition challenging an administrative decision may be set out in another law

The controlling statute of limitations for filing an Article 78 petition challenging an administrative decision may be set out in another law
Hayes v City of NY Dept. of Citywide Admin. Servs., 2010 NY Slip Op 20289, Decided on July 20, 2010, Supreme Court, New York County, Judge Alexander W. Hunter

New York City Fire Captain Robert Hayes applied for and took the Promotion to Battalion Chief Examination No. 8511.

The Test Validation Board rating this examination initially advised the candidates that it proposed the correct answers to questions 15, 46, and 85 as A, A, and D, respectively, Hayes had selected these as correct answers to these questions. However, the final determination by the Test Validation Board allowed A, B, C, and D as correct answers for each of the three questions.

Hayes objected to the Board’s decision, contending that in allowing A, B, C, and D to be deemed correct answers for each of these questions rather allowing only alternate answers that were as good as or better than the proposed answers upon protest, the Board effectively deleted the three questions thereby exceeding its authority under Civil Service Law §50-a.*

Judge Hunter dismissed Hayes’ Article 78 petition seeking to vacate the Board’s final decision as untimely. Although Hayes had filed his petition within the “four month statute of limitations” typically applicable in challenging an administrative determination, in this instance §50-a required that such a petition had to be filed within thirty days “of service of the notice of availability of the determination of the test validation board upon the protesting candidate….”

In the words of the court, “Hayes was given notice of the validation board's determination on December 17, 2009 and did not file a petition under Article 78 until April 12, 2010, nearly four months later, and nearly three months after the 30-day requirement as set forth in Civil Service Law § 50-a. Therefore, this petition is outside of the statute of limitations and is hereby dismissed.”

As to Hayes’ argument that the time limits set out in §50-a did not apply in this instance, Judge Hunter explained that although “The purpose of an Article 78 proceeding, utilizing C.P.L.R. §7803[3] as this case does specifically, is to permit the aggrieved candidate an opportunity to argue why the determination of the administrative agency was ‘made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion .’ … This is precisely the issue at bar and within the scope of Civil Service Law §50-a.”

N.B. Exceptions to “the ususal” statutes of limitations are sometimes set out in law. For example, although an Article 75 petition seeking to confirm or vacate an arbitration award “must be filed ninety days after its delivery,” Education Law Section 3020-a(5) requires that an Article 75 petition challenging the arbitration award resulting from a Section 3020-a disciplinary hearing to be filed “Not later than ten days after receipt of the hearing officer's decision” in order to be timely.

* Civil Service Law §50-a authorizes “test validation boards” to determine the correct scoring of civil service examinations for positions in the competitive class within the jurisdiction of the New York City Department of Personnel and provides that “the test validation board shall make a determination whether the answers elected by the protesting candidates are as good as or better than the proposed key answers or whether the rating guide should be modified and shall give reasons therefor in an opinion in writing.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20289.htm

The disclosure of mediation discussions in violation of a confidentiality agreement may subject a party to sanctions

The disclosure of mediation discussions in violation of a confidentiality agreement may subject a party to sanctions

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Spoth v. M/Y Sandi Beaches, 2010 WL 2710525 (W.D.N.Y.July 7, 2010) (not available on internet), is an interesting case that discusses the possibility of sanctions if a party discloses confidences learned in court annexed mediation.

Scholars and lawyers may find this case of interest.

Mitchell H. Rubinstein

Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay

Individual terminated based on a defective disciplinary decision by the appointing authority entitled to reinstatement with back pay
Ernst v Saratoga County, Appellate Division, 251 A.D.2d 866

Saratoga County filed disciplinary charges against Donald P. Ernst, its director of data processing, alleging misconduct and incompetency based on complaints of sexual harassment filed by a number of women supervised by Ernst.

Ernst was found guilty of the charges and the County Board dismissed him from his position effective December 20, 1994. The Appellate Division, however, annulled the determination. The court said that one of the County’s officials [Sullivan] “improperly participated in the final determination” and there was no evidence “that the members of the Board had an opportunity to review the [disciplinary hearing] record” before making its decision. It returned the matter to the Board for a redetermination (Ernst v Saratoga County, 234 AD2d 764).

Each member of the Board then reviewed the hearing record and, without Sullivan’s participation, on February 25, 1997 voted to terminate Ernst retroactive to December 20, 1994. The Board also rejected Ernst’s claim for back salary for the period December 20, 1996 through February 25, 1997.

Ernst appealed, contending that:

1. The decision to terminate him was arbitrary and capricious; and

2. He was entitled to back salary.

The Appellate Division upheld the Board’s determination dismissing Ernst from his position, ruling that the record contained substantial evidence supporting the Board’s decision. In addition, the court concluded that the penalty imposed met the Pell standard [Pell v Board of Education, 34 NY2d 222] as it was “not shocking to one’s sense of fairness” in view of the offenses for which Ernst was found guilty.

The question of back salary and benefits, however, was another matters. Here the court decided that Ernst was entitled to back salary for the period from his initial termination in 1994 and his subsequent termination in 1997 “less any compensation derived from other employment during that period and any unemployment insurance benefits received for that period.”*

According to the ruling, “a proper termination cannot be extended retroactively to cover a prior period of termination annulled due to procedural failures.”

* NB: In 1985 Section 77 of the Civil Service Law was amended eliminating the deduction for “compensation derived from other employment” upon reinstatement by court order. The same is true with respect to reinstatements directed by a civil service commission pursuant to Section 76 of the Civil Service Law. In contrast, back pay issues are unlikely to arise in disciplinary actions brought pursuant to Section 3020-a of the Education Law as that statute provides that such disciplinary suspensions must be with pay unless (1) the individual has been convicted or entered a guilty plea in a criminal action involving drugs or the physical or sexual abuse of a minor or student or (2) a Taylor Law agreement permits disciplinary suspensions without pay upon the serving of Section 3020-a charges.

Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher

Commissioner of Education no longer has jurisdiction to determine the merits of disciplinary charges served on a tenured teacher
Appeal of Nicola A. DeMarco from action of the New York City Department of Education regarding disciplinary charges, Decisions of the Commissioner of Education, No. 15,850,

Nicola A. DeMarco, a tenured teacher employed by the New York City Department of Education [DOE], was served with disciplinary charges initiated by his principal at Louis Armstrong Middle School.

DeMarco demanded a hearing on the charges to be conducted by a three-member panel* pursuant to Education Law §3020-a, and also demanded dismissal of the charges on the ground that “disciplinary charges pursuant to §3020-a may not be initiated by a principal without review and approval by higher authority.”

DOE refused DeMarco’s demands on the grounds that it had adopted alternate disciplinary procedures as authorized by Education Law §3020(4);** its agreement with the United Federation of Teachers did not provide for three-member disciplinary panels; and … the authority to initiate disciplinary charges had been properly delegated to principals by the Community Superintendent of Community School District involved.

The Commission dismissed DeMarco’s appeal for lack of personal jurisdiction after finding that DeMarco had not served the only agent authorized to accept service of his appeal on behalf of the DOE, the Office of the Corporation Counsel.

In addition, the Commissioner said that DeMarco’s appeal had to be dismissed because, as Commissioner, he no longer had subject matter jurisdiction. Education Law §3020-a was substantially amended in 1994 and the Commissioner no longer had jurisdiction to review either final or nonfinal determinations by disciplinary hearing officers.

The amendment, said the Commissioner, “specifically gives the hearing officer authority to hear and decide all motions, including, but not limited to, motions to dismiss disciplinary charges, citing Education Law §3020-a[c][iii] and [iv].” Accordingly, concluded the Commissioner, DeMarco’s request that he dismiss the charges would require a review of the merits, which review was no longer within his jurisdiction.

* §3020-a.2(c) provides that in the event the disciplinary charges concern pedagogical incompetence or issues involving pedagogical judgment, the educator may elect to have the hearing conducted by either a single hearing officer or a three-member panel. All other charges are to be heard by a single hearing officer.

** As the Court of Appeals indicated in Antinore v State, 40 NY2d 6, a collective bargaining agreement may provide for alternatives to the statutory provisions provided such modifications are consistent with administrative due process.

The full text of the Commissioners decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume48/d15850.htm

Applying the Rule of Three when there are tied scores involved

Applying the Rule of Three when there are tied scores involved
Source: A Google Alert received by NYPPL

A "Google Alert" received by NYPPL via the Internet concerned applying the Rule of Three set out in §61.1 of the Civil Service Law based on the following facts:

“I scored a 100 on a New York State civil service promotional exam. There were 7 openings for supervisor. Five candidates scored a 100. One of the four declined the promotional opportunity. The promotions were given to two eligibles who scored 100, four eligibles who scored 95, and one eligible who scored a 90.

“I am familiar with the "rule of three" and have researched New York State Civil Law, NYS CSL 61.1 in particular. Every example that is given refers to a situation in which one promotional opportunity is available. For example, if one eligible scores 100, one eligible scores 95, and one eligible scores 90, and all the other candidates score lower than 90, the rule of three means that the eligible who scored the 90 can be given the promotion over the two eligibles who scored higher that he/she did.

“However, I did not come across an example of how the rule of three would work when more than one position is available.”

NYPPL’s response:*

Considering the application of the Rule of Three on a “step-by-step basis,” the Rule of Three “works” as follows:

1. As to the five candidates receiving a score of 100, as one has declined, the four remaining eligibles are certified. Two are appointed, resulting in five vacancies yet remaining to which appointments may be made.**

2. The next group of candidates eligible for selection for appointment would consist of the two remaining candidates scoring 100 plus the four eligibles that received a score of 95, a total of six eligibles. The four eligibles attaining a score of 95 are appointed, leaving one vacancy yet to fill.

3. The next group of candidates eligible for selection for appointment would consist of the two candidates with a score of 100 and the one [or more] eligibles attaining a score of 90. A candidate who received a score of 90 on the examination may be lawfully selected, thereby filling the last available vacancy, without offending the Rule of Three.

Another example:

Ten candidates received scores of 100 while four achieved scores of 95 and one candidate had a score of 90. Again, one of the candidates attaining a score of 100 declines, leaving nine candidates with scores of 100 interested in being appointed. With seven vacancies available for appointment, the appointing authority may fill all, some or none of the vacancies but only the nine interested candidates attaining scores of 100 are "reachable" for appointment. Candidates receiving a score of less than 100 are not included on the list certified for appointment and thus are not part of the candidate pool. Why? Because once six appointments are made from among the nine eligibles attaining a score of 100, three eligibles remain available for selection to fill the seventh and last vacancy, thus triggering the Rule of Three.

If, however, a second eligible attaining a score of 100 were to decline the appointment, all four eligibles with a score of 95 would become eligible for appointment and they, together with the remaining eight eligibles have a score of 100, would constitute a pool of twelve individuals reachable for appointment and the appointing authority could select any seven of the twelve for the appointment.***

In other words, the number of candidates eligible for appointment at any particular point in time is a "moving target."

[NYPPL periodically post answers to selected general questions concerning public personnel law issues. Readers may e-mail their question to publications@nycap.rr.com]

* This analysis assumes that the "entire eligible list" consisted of ten eligibles: five candidates attaining a score of 100, four candidates attaining a score of 95 and one candidate attaining a score of 90. However, had there been more than one candidate attaining a score of 90, all the eligibles attaining a score of 90 would have been in the "candidate pool."

** N.B. An appointing authority is not required to use a mandatory eligible list and may, as a matter of discretion, elect not to fill the vacancy. On the other hand, an appointing authority may use a “non-mandatory” eligible list to fill a vacancy either on a permanent basis or on a provisional basis. However, if the appointing authority makes a provisional appointment “from a nonmandatory list,” the appointee may attain tenure in the position under certain circumstances [see Civil Service Law §65.4.] The seminal case that considered such an appointment situation is Matter of Roulette, 40 AD2d 611.

*** In some departments and agencies the appointing authority may elect, or pursuant to the terms of a collective bargaining agreement, be required to fill vacancies on the basis of the "Rule of the List" whereby individuals on an eligible list are appointed in the order of their rank or position on the list.