Early intervention counseling

Early intervention counseling

Tatum v Horn, 37 AD3d 285

Wayne Tatum appealed his dismissal from his position as a New York City correction office after being found guilty of a number of allegations of misconduct.

The Appellate Division ruled that the New York City Department of Correction presented ample evidence at Tatum’s disciplinary hearing proving allegations that he had violated numerous departmental rules.

Tatum had been charged with being AWOL on multiple occasions, failing to sign-out of the correctional facility to which he was assigned, failing to contact his superiors when required, and insubordination by failing to obey a supervisor’s order. 

In response to Tatum’s argument that the Department had not sent him to an “early intervention counseling program”, the court said that “Correction was not obliged to send him to its early intervention counseling program, a program that is discretionary, not mandatory.” In addition, the Appellate Division commented that “the value of such counseling would have been questionable in light of [Tatum’s] long disciplinary history."

In a similar case, Carroll v Perkle, 296 AD2d 755,  Leave to appeal denied 98 NY2d 764, one of the issues considered by the court concerned “intervention counseling programs.” 

The Appellate Division ruled that Carroll had been denied administrative due process because the Education Law Section 3020-a Hearing Panel failed to consider “mitigating circumstances” in determining the penalty. 

The Appellate Division said that the Hearing Panel failed to honor Carroll’s request that the Board of Education’s “lack of effort to correct his behavior,” be considered by the panel in determining the appropriate penalty to be imposed. §3020-a(4) of the Education Law provides that “At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including, but not limited to, remediation, peer intervention or an employee assistance plan.”

The decision is posted on the Internet at: 

http://nypublicpersonnellawarchives.blogspot.com/

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State Comptroller report concluded that the use of local development corporations out of control Source: Office of the State Comptroller

State Comptroller report concluded that the use of local development corporations out of control
Source: Office of the State Comptroller

Citing an on-going pattern of abuse, State Comptroller Thomas P. DiNapoli today proposed a package of reform proposals that would limit local governments’ use of local development corporations (LDCs) and other private entities such as limited liability companies (LLCs).

The suggested reforms would also give the State Comptroller direct audit authority over LDCs, LLCs and similar entities controlled by local governments.

LDCs were originally intended to allow New York's counties, cities, towns, and villages to utilize these entities for economic development purposes and to promote employment opportunities.  Because many activities undertaken by LDCs are exempt from taxation, they are used to construct or rehabilitate industrial or manufacturing plants or to    encourage such businesses to relocate or remain in a particular region.

However, said the Comptroller, current law includes loopholes that allow LDCs to be used for purposes beyond the original intention.

DiNapoli cited several instances in which the use of LDCs and LLCs unnecessarily drove up taxpayer costs, including the use of an LLC by the city of Rochester to purchase a ferry that ended up costing taxpayers nearly $20 million.

The Comptroller’s report, Municipal Use of Local Development Corporations and Other Private Entities is posted on the Internet at:
http://www.osc.state.ny.us/localgov/pubs/research/ldcreport.pdf

Other items from the Comptroller's press office available on the Internet include:

DiNapoli: 101 School Districts Request Surplus Certifications to Use Funds to Make Up State Aid Cuts

State Comptroller Thomas P. DiNapoli’s office today certified the amounts of excess Employee Benefits Accrued Liability Reserve funds (EBALR) held by 95 school districts across the state that can be used by the districts in the 2011-12 school year to make up for $190.6 million in state aid cuts. DiNapoli’s review found the districts’ excess EBALR funds total $148.2 million.


DiNapoli's Office Releases School Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: the Auburn Enlarged City School District; the Malone Central School District; the Schalmont Central School District; and, the Waterloo Central School District.


DiNapoli's Office Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: Village of Akron; the Town of Malta; the Village of Endicott; the Town of Trenton; the Smithtown Special Library District; the Village of Lancaster; the Village of Irvington; the Village of Centre Island; the Bellona Fire District; and an audit on Saving Money on Nursing Home Drug Purchases for various counties.


DiNapoli's Office Releases State Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: the Beacon City School District; Department of Health, Medicaid Payments for Diabetic Testing Supplies (Follow-Up) (2010-F-42) and, Department of Health, Inappropriate Payments for Vision Care Services Claimed by Dr. Horowitz (Follow-Up) (2010-F-47).
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Unfair labor practices - protected activities

Unfair labor practices - protected activities

CSEA Local 1000 v PERB, 267 AD2d 935

CSEA appealed a determination by the New York State Public Employment Relations Board [PERB] that the Holbrook Fire District did not commit an improper employer practice when it disciplined one of its employees, Jason Feinberg.

The district had filed eight charges against Feinberg, a firehouse attendant, alleging misconduct and, or, incompetence pursuant to Section 75 of the Civil Service Law.

Feinberg was alleged to have “permitted unauthorized personnel in his work area, participated in inappropriate activities during work hours, failed to timely complete certain work assignments and follow standard operating procedures in performing certain work-related activities.”

CSEA filed an improper employer practice charge against the district pursuant to Civil Service Law Section 209-a with PERB on behalf of Feinberg. CSEA contended that the district had filed disciplinary charges against Feinberg “in retaliation for his efforts at organizing a union.”

While CSEA’s charges were pending before PERB, the disciplinary hearing officer issued a report and recommendation finding Feinberg guilty of six of the charges. The penalty recommended by the hearing officer: Feinberg should be terminated from his employment. The District accepted the hearing officer’s findings and recommendations and dismissed Feinberg.

CSEA and the district stipulated that rather than holding a separate hearing, the record of the proceedings conducted in connection with the disciplinary charges would be used by PERB’s Administrative Law Judge (ALJ) in resolving the improper practice charge. Finding that other employees who had engaged in similar misconduct had not been disciplined by the district, the ALJ ruled that the district “had committed an improper practice by discharging Feinberg in retaliation for protected union activities.” PERB reversed its ALJ’s ruling.

PERB said that “the ALJ should have deferred to the findings of the hearing officer that the charges against Feinberg were brought by the District for proper business reasons and not to retaliate against him for his organizing activities”.

The Appellate Division initiated its review of CSEA’s appeal from PERB’s ruling by noting that “the relevant inquiry in a proceeding pursuant to Civil Service Law Section 75 is very different than that in an improper practice proceeding under Civil Service Law Section 209-a.” The court, citing City of Albany v Public Employment Relations Board, 43 NY2d 954, said:

1. In considering an appeal involving Section 75, the focus is upon whether there was cause for the employee’s dismissal.

2. In considering an appeal involving Section 209-a, the focus it is whether the employer‘s action was motivated by anti-union animus and “it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed.”

The Appellate Division said that PERB relied upon its policy of deference and the disciplinary hearing officer’s determination when it reversed ALJ’s determination.

However, said the court, its review of the decision in the Section 75 proceeding indicates that the disciplinary hearing officer “did not fully consider the dispositive issue in the improper practice proceeding, i.e., whether Feinberg’s firing was improperly motivated.” Accordingly, the Appellate Division said that “PERB’s deference to the [Section 75] Hearing Officer’s findings as the sole basis in resolving the improper practice charge was inappropriate.”

The Appellate Division annulled PERB’s determination and remanded the case to PERB “for an independent review of the ALJ’s decision of [CSEA’s] improper practice charge in light of all the evidence contained in the record of the Civil Service Section 75 proceeding.”

Extending the probationary period of an individual

Extending the probationary period of an individual

Appeal of Anne M. Christiano, Decisions of the Commissioner of Education, Commissioner’s decision No. 16,217

A “Juul Agreement” between an educator and his or her appointing authority extends the educator’s probationary period rather than terminate the educator at the end of his or her probationary period for not completing his or her probationary period satisfactorily. This is typically done in an effort to provide the educator with an opportunity to improve his or her performance and thereby become eligible for tenure in the position. Such an agreement, when “open, knowing and voluntary,” waives the educator’s right to claim tenure by estoppel.* At the end of the extended probationary period the school district may grant or deny tenure [see Juul v. Board of Educ. of Hempstead UFSD, 76 AD2d 837, affirmed, 55 N.Y.2d 648].**

Anne M. Christiano, then serving as a probationary principal, and the Johnstown City School District had entered into a Juul Agreement. At the end of the extended period of Christiano’s probation the superintendent recommended Christiano for tenure.  The school board, however, voted to reject the superintendent’s recommendation and denied Christiano tenure with the district.

Christiano, alleging that the board acted in bad faith and was arbitrary and capricious in denying her tenure, appealed to the Commissioner, asking that he overturn the school board’s tenure determination and that he remove those members of the board “who voted against granting her tenure.”

After addressing a number of procedural issues, the Commissioner said that with respect to the merits of Christiano’s claim regarding the denial of tenure, Education Law §3012(1)(b) provides that the service of a principal “may be discontinued at any time during the probationary period on the recommendation of the superintendent of schools, by a majority vote of the board of education.”  Further, said the Commissioner, “… a board of education has the unfettered right to terminate a probationary principal’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.”

In any event, in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. In this instance the Commissioner ruled that while there were positive comments in the record about her administrative abilities, Christiano had not alleged or established that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.

Accordingly, the Commissioner found that Christiano has failed to meet her burden of proof.

As to Christiano’s petition to remove certain members of the school board, the Commissioner said that she had failed to establish facts sufficient to warrant removal of the individually named board members pursuant to Education Law §306.  The Commissioner pointed out that “A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.”

Finding that Christiano had failed to establish that the individual members of the school board named in her appeal “intentionally acted with a wrongful purpose to disregard a lawful duty or violate a legal requirement,” the Commissioner ruled that she had failed to establish any ground for their removal under Education Law §306.

* A probationary employee may attain tenure by estoppel [sometimes referred to as “tenure by acquiescence”] when the appointing authority accepts the continued services of the individual, but fails to take the action required by law to either grant or deny the individual tenure prior to the expiration of the employee’s probationary term, [see McManus v Hempstead Union Free School District, 87 NY2d 183]. Continuation on the payroll for a brief period after the expiration of a probationary period for administrative convenience, such as to coincide with the end of a payroll period, does not automatically result in the individual attaining tenure by estoppel [Mendez v Valenti, 101 AD2d 612].

** A procedure is available to the appointing authority with respect to probationers in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides:. 4 NYCRR 4.5(b) (5)(ii), in pertinent part, permits an appointing authority to offer a probationer deemed not to have satisfactorily completed his or her probationary period an opportunity to serve a second probationary term “in which case the appointment may be made permanent at any time after completion of 12 weeks of service, or the employment [may be] terminated at any time after the completion of 8 weeks of service and on or before the completion of 26 weeks of service.” A similar rule has been adopted by many local civil service commissions.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume50/d16217.htm

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Petitioner alleging disparate treatment in violation of his or her Title VII civil rights has the initial burden of setting out a prima facie case of unlawful discrimination

Petitioner alleging disparate treatment in violation of his or her Title VII civil rights has the initial burden of setting out a prima facie case of unlawful discrimination

Wharff v State Univ. of New York, USCA, Second Circuit, 09-4534-cv

Wilfred Wharff alleged that SUNY refused to promote him from Lab Technologist to Assistant Supervisor because of his gender.

The Circuit Court said that Wharff’s disparate treatment claim pursuant to Title VII [42 USC § 2000e et seq.] was to be analyzed under the tripartite burden shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, whereby Wharff has the initial burden of establishing a prima facie case of unlawful discrimination.

Citing Malave v. Potter, 320 F.3d 321, the Circuit Court said that “To make out a prima facie case of disparate impact, a plaintiff must ‘(1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two.’

If he is able to do so, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for its actions.”

Finding that Wharff offered no evidence that SUNY applied its promotion procedures unfairly, that the collective bargaining agreement's sanctioning of the alternate hiring process was negotiated as a pretext for sex discrimination, or that the selection of alternatives was intentionally manipulated to accomplish such discrimination, the Court dismissed his appeal.

Further, said the court, “Even assuming that this establishes a prima facie case of discrimination, SUNY has offered a legitimate, nondiscriminatory reason for its promotion decisions that Wharff has failed to rebut.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/8255044e-0961-4619-a312-4a2d3aa9000d/1/doc/
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