When seeking relief in the nature of mandamus, the individual must make the demand and await the agency’s refusal before filing an Article 78 petition

When seeking relief in the nature of mandamus, the individual must make the demand and await the agency’s refusal before filing an Article 78 petition
Donoghue v New York City Dept. of Educ., 2011 NY Slip Op 00425, Appellate Division, First Department

Dismissing an Article 78 petition seeking one form of relief does not necessarily mean that that portion of the petition seeking other relief must be dismissed as well.

Janice A. Donoghue, a teacher employed by the New York City Department of Education, asked to be granted tenure as an earth science teacher as of September 1, 2005. When the New York City Department of Education failed to act, Donoghue filed an Article 78 petition. Although Supreme Court granted the Department’s motion to dismiss her petition, the Appellate Division reversed the lower court ruling “on the law and in the exercise of discretion.” And reinstated the petition.

Nor, said the court, is Donoghue’s appeal “moot,” since Donoghue has not obtained all of the relief she sought.

The Appellate Division explained that an Article 78 is not limited to review of administrative determinations since a court also has subject matter jurisdiction to review a body's or officer's failure to act.

The decision indicates that although Donoghue had asked the Department to retroactively grant her tenure in earth science, the Department had failed to act on her request.

Addressing the question “Is Donoghue’s action barred by the statute of limitations?”-- the Appellate Division said that Donoghue’s Article 78 petition was in the nature of a prayer for “mandamus relief.”

In such an action the petitioner is required to make a demand and await a refusal before the matter is ripe for possible litigation. Significantly, statute of limitations does not commence to run “until the refusal" is served on the individual or his or her attorney.*

Thus, said the court, “[i]f there is no refusal, the limitations period does not begin to run.”

Considering another procedural issue, the Appellate Division noted that Donohue’s request was not made within the four-months required. However the court, in an “exercise” of its discretion determined that the proceeding was not barred by laches because "[i]f a petition and answer ‘can be construed as the necessary demand and refusal’ [Donoghue’s] pre-petition demand should not be deemed untimely.”

* As a general rule, when an individual is represented by an attorney, delivery of the papers to the attorney is viewed as service on the individual. In such situations the attorney is deemed the individual's agent [see Bianca v Frank, 43 NY2d 168].

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00425.htm

Firefighter’s status as an employee determines that Workers’ Compensation Law rather than Volunteer Firefighters’ Benefits Law benefits are to be paid

Firefighter’s status as an employee determines that Workers’ Compensation Law rather than Volunteer Firefighters’ Benefits Law benefits are to be paid
Matter of Falkouski v City of Rensselaer Fire Dept., 2011 NY Slip Op 00446, Appellate Division, Third Department

A City of Rensselaer part-time paid assistant fire chief also served as a member of a City of Rensselaer volunteer fire company. He died after suffering a ruptured cerebral aneurysm while at a fire.

His surviving spouse, Susan Falkouski, filed claims under both the Workers' Compensation Law and the Volunteer Firefighters' Benefit Law.



Although a Workers' Compensation Law Judge found that the fassistant cheif’s death was causally related to his volunteer firefighter duties, the Workers' Compensation Board reversed, finding that he had died while working in his capacity as an assistant fire chief.

Accordingly the Board ruled that the Workers' Compensation Law, rather than the Volunteer Firefighters’ Benefit Law, controlled insofar as Mrs. Falkouski’s claims for benefits were concerned.

Mrs. Falkouski’s late husband, as an assistant fire chief, received biweekly pay and took on responsibilities beyond those of a volunteer firefighter such as carrying a City-supplied pager and he was obligated to respond to all fires. Further, said the court, “there was evidence that his duties as assistant fire chief required him to supervise volunteer fire companies responding to the scene of a fire, he wore a different color hat indicating his supervisory role and he was acting in such capacity at the time of the subject fire.”

Under these circumstances, the Appellate Division sustained the Board’s determination, ruling that substantial evidence supports the Board's determination that, at the time of his death, Mrs. Falkouski’s late husband was engaged in work as an employee in his paid position as an assistant fire chief.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00446.htm

The State Commissioner of Education lacks jurisdiction to consider an appeal involving the non-renewal of the charter of a Charter School

The State Commissioner of Education lacks jurisdiction to consider an appeal involving the non-renewal of the charter of a Charter School
Appeal of Ross Global Academy Charter School regarding the nonrenewal of its charter. Decisions of the Commissioner of Education, Decision #16,194

The New York City Chancellor of Education, as a charter entity pursuant to Education Law §2851(3)(a), entered into a proposed charter agreement with Ross Global Academy Charter School [RGACS] for the operation of a charter school for five years. The proposed charter agreement was submitted to the New York State Board of Regents, which approved and issued it in January 2006.

In 2010, RGACS submitted an application to the Chancellor for the renewal of its charter for an additional five years, but was advised by the Chancellor’s staff in December 2010 that its charter would not be renewed by the Chancellor beyond the end of the 2010-2011 school year.

RGACS appealed, contending that the Chancellor and his staff [1] failed to follow appropriate policies and procedures in making the nonrenewal decision; [2] that it was treated differently than other allegedly “similarly situated” charter school; and [3] that its charter should be renewed.

The Commissioner dismissed RGACS’ appeal “for lack of jurisdiction.” The Commissioner said that Education Law §2852(6) provides that, “[n]otwithstanding any provision of law to the contrary,” the denial of an application for a charter school by a charter entity “is final and shall not be reviewable in any court or by any administrative body.”

The Commissioner explained that as the appeal submitted by RGACS is an administrative proceeding that challenges the denial of an application for a charter school, he lacks jurisdiction to consider it “Because the legislature has proscribed administrative review….”

The Commissioner rejected RGACS’ argument that Education Law §2852(6) is not applicable because it applies only to the denial of an initial charter application and not, as here, to an application for the renewal of an existing charter school, noting that “Education Law §2851(4) provides, in pertinent part, that “[c]harters may be renewed, upon application, for a term of up to five years in accordance with the provisions of this article for the issuance of such charters pursuant to section twenty-eight hundred fifty-two of this article”

As to RGACS’ claim that the Regents was the ultimate authority with respect to ruling on its application for renewal, the Commissioner said that “it is the charter entity (in this case, the Chancellor) that has the ultimate authority to deny an application for a charter school’s renewal.”* The Commissioner said that the Board of Regents "does not have the ability" to reject or veto a “recommendation” of another charter entity or modify a proposed charter submitted by such entity, citing Bd. of Educ. of the Roosevelt UFSD., et al. v. Bd. of Trustees of the State University of New York, et al., 282 AD2d 166).

* The Commissioner noted that although the Chancellor’s staff prepared a report and submitted it to the Board of Regents in this matter with a “recommendation” that RGACS’ charter not be renewed beyond the 2010-2011 school year, this submission was not required by law and is without consequence to the chartering process.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16194.htm

Family Medical Leave Act and the Doctrine of Eleventh Amendment Immunity

Family Medical Leave Act and the Doctrine of Eleventh Amendment Immunity
Lambert v NYS Office of Mental Health, USDC, EDNY, Judge Gleeson, 97-CV-1347

Efforts by state employees to challenge alleged violations of federal civil rights and other laws have be rejected by federal courts under the doctrine of Eleventh Amendment Immunity. In the Lambert case, a federal district court dismissed claims alleging that the State’s Office of Mental Health [OMH] violated the Family Medical Leave Act on the basis of Eleventh Amendment Immunity.

Patricia Lambert had requested leave pursuant to the Family and Medical Leave Act of 1993 [FMLA], 29 USC Section 2601 on December 16, 1994. She provided medical documentation in support of her request.

While her FMLA request was pending, she used sick leave, personal time, and vacation time to cover her absences from work. OMH, Lambert claimed, (1) found her to be her eligible for FMLA benefits on February 1995 but (2) terminated her in March 1995.

The court never reached the merits of Lambert’s allegations, holding that [s]ince Lambert’s FMLA claim against the Office of Mental Health is predicated on a request for leave involving her own health condition (in contrast, for example, to a request for leave for the birth of a child), it is barred by the Eleventh Amendment.

The court cited Hale v Mann, 219 F.3d 61, 67, decided by the U.S. Court of Appeals, Second Circuit, as authority for its determination.

In Hale the Circuit Court said that FMLA’s abrogation of states’ sovereign immunity to suits regarding employees’ own health conditions exceeded Congress’s power under the Fourteenth Amendment.

Judge Gleeson also commented that Lambert’s FMLA claim against the individual defendants was inappropriate, noting a decision by the Eleventh Circuit holding that individual state officers are not employers within the meaning of the FMLA [Wascura v Carver, 169 F.3d 683].

Limiting the selection of arbitrators

Limiting the selection of arbitrators
Suffolk County PBA v Suffolk County, 273 AD2d 222

Suffolk County adopted a resolution [Resolution 377-1998] barring arbitrators who have served in labor disputes involving Nassau County within the preceding three years to serve in disputes under collective bargaining agreements voluntarily submitted to arbitration or in binding arbitration.

Suffolk County PBA challenged the resolution, contending that it violated both the terms of a collective bargaining agreement [CBA] between it and the county and the Taylor Law. State Supreme Court Judge Jack J. Cannavo, agreed and ruled that the resolution was invalid.

The county appealed and the Appellate Division overturned the lower court’s decision. The Appellate Division held that the CBA and the Suffolk County Administrative Code, which was substantially equivalent to the Taylor Law, both contained binding arbitration provisions permitting Suffolk County to select arbitrators at its own discretion.

Pointing out that the county could exercise its discretion in selecting arbitrators, the Appellate Division declared that the PBA lacks standing to assert that the resolution is arbitrary or capricious, or that the Suffolk County Legislature did not possess the authority to determine how Suffolk County should select its arbitrators.

The court also commented that in contrast to the PBA’s contention, the resolution did not prohibit an arbitrator from making comparisons between Nassau and Suffolk County to determine arbitration issues.