Appointing an individual to serve as an election commissioner

Appointing an individual to serve as an election commissioner
Wood v County of Cortland, 72 AD3d 1447

County Legislature has the authority to appoint an Election Commissioner where the mechanism for making such an appointment set out in Election Law § 3-204 did not result in an appointment.

Freedom of information requests related to disciplinary actions

Freedom of information requests related to disciplinary actions
Western Suffolk BOCES v Bay Shore UFSD, 250 A.D.2d 772

After the Bay Shore Union Free School District refused to honor Western Suffolk BOCES’ Freedom of Information [Section 87, Public Officers Law] request for the employment history of a teacher, BOCES won an order in State Supreme Court directing the District to provide it with certain documents, including some, but not all, material demanded by BOCES. Apparently some of the material demanded concerned disciplinary matters while other papers dealt with a “stipulation of settlement.”

The district, the teacher and BOCES all appealed. Although the district subsequently withdrew its appeal, the teacher continued his objection to the release of the material in the “sealed record” while BOCES pressed for those documents in the “sealed record on appeal” that the Supreme Court declined to have the district provide.

The Appellate Division modified the lower court’s order. It said that BOCES could not have certain pages in the “sealed record” that the lower court had ordered released and with respect to some other pages, the names of parents and students had to be redacted [obliterated] from the documents before BOCES could have them.

Specifically, the Appellate Division said that the lower court should not have directed the release of pages in the “sealed record” which recite or refer to unproven disciplinary charges. In contrast, the Appellate Division said that while BOCES was entitled to a copy of the “stipulation of settlement,” the names of the students and their parents mentioned in the stipulation should not be disclosed to BOCES.

Stipends that are not found to be “regular salary” or “summer session salary” excluded in determining educator’s final average salary

Stipends that are not found to be “regular salary” or “summer session salary” excluded in determining educator’s final average salary
O'Brien v New York State Teachers' Retirement System, 2010 NY Slip Op 51398(U), Decided on August 4, 2010, Supreme Court, Albany County, Judge Henry F. Zwack [Not selected for publication in the Official Reports]

Typically a schoolteacher has a 10-month professional obligation and school districts generally permit the educator to elect to receive his or her annual compensation over ten months in 21 periods or over twelve months in 26 payroll periods. In the event the educator elects to receive his or her annual salary in 26 payroll periods, the school district usually commences the 26 biweekly payroll mode for a person having a ten-month professional obligation [typically September 1 to the June 30 next following] in September. The individual actually would be underpaid for the period September through the following June 30 and payments received during July and August would constitute payment for past services already performed.*

In this CPLR Article 78 proceeding New York State Teacher's Retirement System [TRS] retiree Florence O’Brien contended that TRS improperly calculated her final average salary. She claimed that that TRS should have included the payments she had received in the 2006-07, 2007-08 and 2008-09 school years -- $4,000.00, $5,000.00 and $6,000.00 respectively --pursuant to the terms of a collective bargaining agreement.

The collective bargaining agreement provided for these stipends under what was called a "24-12" plan and O’Brien claimed that the stipends were for her work developing and teaching summer school programs.

TRS disagreed, arguing that "24-12" plan allows a teacher to receive his or her salary in 24 payments over 12 months, as opposed to only over the course of the academic year. In contrast, the collective bargaining agreement, said TRS, required participating teachers to "complete a total of 8 hours of work during each July and August." Accordingly, the System decided that such stipend payments “are not properly considered regular salary.”

TRS also noted that O’Brien’s work during the three relevant summers was not reported pursuant to the summer school salary schedule.**

Observing that “It is well established that when a court is reviewing an administrative determination, it ‘may not substitute its judgment for that of the agency making the determination but must determine whether the agency's decision has a rational basis and is not arbitrary and capricious,’” Judge Zwack ruled that the System’s determination that the stipends paid to O'Brien under the 24-12 plan was non-regular compensation was neither arbitrary nor capricious.

Significantly, the court noted that:

1. The stipend was in addition to base salary;

2. The payments under the 24-12 plan were not based on performance of teaching service and were fixed based upon a teacher's length of service;

3. The main purpose of the 24-12 plan appears to be to offer teachers an option to receive salary over the entire calendar year; and

4. That there was a separate arrangement for summer school teaching and compensation.

5. Accordingly, Judge Zwack sustained the Retirement System’s determination.

* If, on the other had, the district commenced its payroll for such personnel in July, such employees would be receiving payments during July and August for work yet to be performed during the following academic year, i.e., the following September-June school year period. In Guilderland CSD v Trombetta [Not selected for publication in the Official Reports] the court said that "Where a school district employee is paid more than the per diem value of his or her annual salary, and thereafter fails to complete the temporal period of work he or she is obligated to perform, there must be a per diem adjustment of salary paid, so as to equate salary paid with work performed, and a return to the school district of any overpayment computed on such basis."

** TRS conceded that “summer school compensation constitutes regular salary,” but concluded that the stipend payments claimed by O’Brien for the purposes of determining her “final average salary” were payments separate and distinct from summer school compensation.

The text of the decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51398.htm
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Amending local civil service commission rules

Amending local civil service commission rules
Formal Opinion of the Attorney General, 98-F3

The New York City Council “jurisdictionally reclassified” a number of city positions without first holding a public hearing concerning the change. New York City’s Director of Personnel advised the State Civil Service Commission that under the circumstances he believed that the State Commission had “no authority to disapprove the proposed changes and should simply note them in its records.”

The State Commission asked the Attorney General for his views concerning the State Commission’s authority under the circumstances. The Attorney General began his analysis by noting that in such matters the courts “have required strict compliance with Section 20.2,” citing Joyce v Ortiz, 108 AD2d 158.

Section 20 of the Civil Service Law sets out the procedures to be followed by a local civil service commission or personnel officer wishing to amend its “personnel rules.” It provides that such rules may be amended only after a public hearing and requires the approval of the State Civil Service Commission. Finally, to have the “force and effect of law,” the amendment must be filed with the Secretary of State to complete the process. Such rules, including the Rules promulgated by the State Commission itself, also provide for the enumeration of positions placed in the exempt, noncompetitive or labor classes by the local commission. All positions in the classified service are automatically in the competitive class unless placed in a different jurisdictional classification by the State Legislature or the State Civil Service Commission.

The key to resolving the issue turned on whether a municipal legislative body was to be equated to the State Legislature for the purposes of Section 20.2, because that Section provides an exception for the Legislature. Section 20.2 specifically indicates that no public hearing is required upon the adoption or modification of a rule required “by reason of a change in any statute in order to confirm the rule to the statute.”

The Attorney General concluded that exception set out in Section 20.2 for conforming to a change in the law “is best given effect by reading ‘statute’ as a reference to a State law, rather than a local enactment.” Accordingly, he advised the State Commission that a political subdivision of the state must comply with the notice, hearing and approval procedures set out in Section 20 if it wishes to amend its personnel rules, including adopting amendments establishing new titles in other than the competitive class and jurisdictionally reclassifying existing positions.

A disciplinary hearing determination cannot be annulled by the court if the record supports the determination

A disciplinary hearing determination cannot be annulled by the court if the record supports the determination
Marden v Town of Bedford, 249 A.D.2d 547

The Town of Bedford Supervisor asked the Town’s Chief of Police, David M. Marden, to provide him with a copy of a report concerning alleged police misconduct. When the chief failed to comply with the directive, a number disciplinary charges were served on him. Among these were charges that alleged that Marden failed to comply with a lawful order to provide the report on five occasions: February 12, 16, 23, 27 and 28. Found guilty of misconduct, Marden was dismissed from his position.

Marden appealed. The Appellate Division said that Marden could not be guilty of insubordination on February 12 and 16, because the report in question had not been completed until February 21. Accordingly, the finding of guilt concerning charges involving these dates were not supported by substantial evidence.

The Appellate Division sustained the findings of misconduct with respect to Marden’s refusal to comply with the Supervisor’s directives on February 23, 27 and 28.

The court said an administrative determination made after a hearing cannot be annulled unless it is shown that there is no substantial evidence in the record to support the determination. Here it was found that the hearing record supported the determination that Marden “willfully refused to comply with a proper directive to turn over the investigative report....”

As to the penalty imposed, dismissal, the Appellate Division held that the penalty satisfied the Pell standard [Pell v Board of Education, 34 NY2 222] as Marden’s dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness.