Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideas

Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideas

Personnel administrators and other professionals serving with State and municipal departments and agencies interested in exchanging ideas and in discussing selected court and administrative decisions and related matters affecting public employers and employees in New York State are invited to become members of iZoca* and join the Public Personnel Administrators group.

The initial PPA posting is at: http://www.izoca.com/groups/public-personnel-administrators/discussions/33670

iZoca allows members to connect with both their communities and their groups. The platform provides members an opportuntiy to share information and exchange ideas.

In addition, iZoca provides powerful group features that help keep you informed and engaged with all your group activities. Once your free account is created, you will be able to join Public Personnel Administrators and other groups, or even start your own membership group in addition to those already available.

To become a member of the Public Personnel Administrators group, go to:

http://www.izoca.com/join/groups/public-personnel-administrators

* The name iZoca is derived from the Spanish word “zocalo” which is referred to as a square or plaza in Mexico where people congregate. iZoca was founded in 2007 and is located in New York's Tech Valley Region.

Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character

Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character
Matter of Mudge v Huxley, 2010 NY Slip Op 09311, Decided on December 16, 2010, Appellate Division, Third Department

Randy Mudge, a certified as a teacher and school administrator, requested a hearing in response to a notice from the State Department of Education that a substantial question existed with respect to his moral character.

The hearing panel determined that Mudge “lacked the good moral character necessary to be a teacher in New York State” and recommended suspension of his certificates for one year.

Mudge appealed and although the Commissioner* “modified the findings of the panel," she sustained the one-year suspension of his certificates. Mudge then filed a petition in Supreme Court challenging the Commissioner’s decision.

The Appellate Division said that its review of the Commissioner’s ruling “in this context is limited to whether it is arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion.”**

According to the decision by the Appellate Division, Mudge admitted that he had had sexual intercourse with two former students. Finding a “pattern of behavior in affording the girls preferential treatment while they were students, including the pre-graduation trips to “Mets games,” [the Commissioner] concluded that Mudge had groomed them for a sexual relationship while they were students and then, shortly after they graduated, exploited the relationships that he had cultivated.”

The Appellate Division rejected Mudge’s argument that the Commissioner’s conclusion regarding “grooming of the students prior to graduation is irrational.”

Although Mudge argued that each of the various factors considered by the Commissioner is innocent by itself, and his character is unassailable, the court said that it could not agree. It said that “Given the evidence of [Mudge’s] pattern of behavior with both girls, [the Commissioner’s] determination that [Mudge] was engaged in grooming and that he lacks the requisite moral character to be a teacher in this state is supported by a rational basis.

The Appellate Division then confirmed the Commissioner’s determination and dismissed Mudge’s appeal.

* Interim Commissioner of Education Carole F. Huxley

** The Appellate Division noted that Supreme Court’s transfer of Mudge’s appeal to it “was improper because the appropriate standard of review is not whether the determination is supported by substantial evidence,” it said that it would retain the proceeding and resolve the issues “in the interest of judicial economy.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09311.htm

Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancy

Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancy
Matter of O'Connor v New York State Civ. Serv. Commn., 2010 NY Slip Op 09324, Appellate Division, Third Department,

After posting a vacancy for the position of Supervising Hearing Officer [SHO], the Office of Temporary Disability and Assistance [OTDA] elected to reinstate Frank Gottlieb, a recently retired former SHO at OTDA. Gottlieb had submitted a request to be reinstated to the position of SHO.

Vincent J. O'Connor, a hearing officer, was one of about a dozen applicants, including Gottlieb, being considered for the position. After Gottlieb was reinstated to the position, O’Connor asked the Department of Civil Service to revoke Gottlieb's appointment. The Department denied O’Connor’s application.

O’Connor then appealed the Department’s decision to the State Civil Service Commission. The Commission affirmed the Department's determination and O’Connor filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Commission’s decision.

Supreme Court dismissed O’Connor’s petition, which action the Appellate Division affirmed.

The court said that O’Connor contended that “OTDA has acted improperly for many years because, instead of using competitive examinations, individuals are placed in SHO positions by the transfer method authorized in Civil Service Law §52(6).”*

However, the Appellate Division observed, that issue was not properly before us in this appeal as the appointment to which O’Connor had objected was not the result of a “transfer” but rather the reinstatement of a former, albeit, retired former SHO.** The decision points out that 4 NYCRR 5.4 permits the "[r]einstatement within one year, without examination” of a former employee.

After finding that the Commission did not act in an arbitrary or capricious manner in rejecting O’Connor’s request to have Gottlieb's reinstatement revoked, the court noted that the issue, in fact, was moot as Gottlieb “reportedly left the SHO position during the time this appeal was pending.”

* The terms "transfer," “reassignment” and “reinstatement” are unique personnel transaction in the public service. The term “transfer” is used to describe a change of employment where the employee leaves the jurisdiction of one appointing authority and enters the jurisdiction of another, different, appointing authority. In contrast, the term "reassignment" is used to describe personnel changes by the appointing authority within the same department or agency or within the jurisdiction of the same appointing authority. Except where there is a "transfer of function," transfers required the approval of both appointing authorities and the consent of the individual to be transferred [see 70.1, Civil Service Law] while a "reassignment" may be made without the agreement or consent of the employee concerned absent a provision in a collective bargaining agreement to the contrary. “Reinstatement” involves the reemployment of an individual who, after leaving public service, seeks to return to his or her former, or similar, position with his or her seniority as otherwise provided by law for such purposes layoff and eligibly for fringe certain benefits in his or her new position.

** Although of significant relevance, the decision does not address the impact of Civil Service Law §150 nor Retirement and Social Security Law §210 et seq. insofar as the compensation to be paid Gottlieb upon his reinstatement is concerned.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09324.htm

Statute of limitations - duty of fair representation

Statute of limitations - duty of fair representation
Matter of Mankowski, 33 PERB 3032

Daniel M. Mankowski charged that the Public Employees Federation [PEF] violated it duty of fair representation when it failed to represent him in certain grievances he filed against his former employer, the State of New York.

PERB affirmed its administrative law judge’s dismissal of Mankowski’s petition as untimely, noting that he had filed it more than four months after his last contact with PEF.

Determining the minimum period of probation

Determining the minimum period of probation
Challandes v Shew, 275 A.D.2d 369


In most cases a permanent appointment to a position in the classified service is subject to a probationary period. Typically the probationary period is set in terms of a minimum period and a maximum period.*

Also, if a probationer enters military duty within the meaning of Section 243 of the Military Law, the time of his or her absence shall be credited as satisfactory service during such probationary term.

The basic rule: unless otherwise provided by a collective bargaining agreement, a probationer may be dismissed at any time, for any reason [other than for an unlawful or discriminatory purpose], or for no reason, after completing his or her minimum probationary period and prior to the end of his or her maximum period of probation.

In other words, a probationary employee may be terminated without a statement of any reason for the termination and without a per-termination hearing, provided the dismissal (1) was not made in bad faith; (2) did not constitute a violation of statutory or decisional law; and (3) was not based on any unconstitutional or illegal reasons.

If the appointing authority wishes to dismiss a probationer before he or she completes his or her minimum probationary period** formal disciplinary action must be initiated. The decision by the Appellate Division in the Challandes case demonstrates this.

The Village of Ossining appointed Joyce Challandes as a permanent Data Entry Operator, subject to her satisfactorily completing her probationary period. A few days later the Village Manager revoked the appointment.

Challandes sued, claiming that her termination was unlawful. A State Supreme Court justice agreed and directed Ossining to reinstate her to the position with all back salary and the other benefits that she would have received had her appointment not been revoked.

The Village appealed, only to have the lower court’s determination affirmed by the Appellate Division.

Under Westchester County’s Civil Service Rule 11.1(a)(1), said the court, Challandes had to serve a minimum of 12 weeks before she could be removed at the discretion of the appointing authority. Any earlier termination would have to be based on her having to be found guilty of charges of incompetence or misconduct pursuant to Civil Service Law Section 75. As Challandes was not served with disciplinary charges and no Section 75 hearing was conducted, the court ruled that Challandes’ removal was unlawful.

It is well settled that if a probationary employee is continued in service beyond the last day of the maximum probationary period and was not given a timely notice that he or she was to terminated at the end the probationary period or that his or her probationary period has been extended beyond the maximum period, the employee becomes tenured in the position and thereafter may only be removed for cause after notice and hearing. This is usually referred to as attaining “tenure by estoppel.”

Although tenure by estoppel is most frequently encounter in connection with claims of tenure advanced by probationary teachers who have been terminated, it is possible for employees holding positions in the competitive class to attain tenure by estoppel.

For example, if a provisional employee in a competitive class position becomes eligible for permanent appointment to the position and he or she is continued in the position as a provisional employee, he or she is afforded permanent appointment to the position. The leading case on this point: Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611.

Suppose, however, a provision employee is given his or her notice of termination on the last day of the employee’s probationary period and the employee is continued on the payroll beyond the last day his or her probationary period. This, courts have ruled, constitutes a timely notice of termination as the last day of service need not coincide with the last day of the probationary period.

As the Appellate Division held in Mendez v Valenti, 101 AD2d 612, so long as the termination is effective within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.

Stated another way, the appointing authority has until the last day of the individual’s probationary period to decide whether to retain the employee, extend the employee’s probationary period, or to terminate the employee from his or her position. Although the effective of the employee’s removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before the end of his or her probationary period.

* An example of a permanent appointment in the classified service that is not subject to a probationary period: reinstatement from a preferred list. However, an individual who was laid off before completing his or her probationary period is required to complete his or her term of probation upon reinstatement from the preferred list.

** If no minimum probationary period is specified and the appointment is simply made subject to the satisfactory completion of the probationary period the only window of opportunity for termination without initiating disciplinary action occurs at the end of the probationary period.