The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable

The Commissioner of Education will not render an advisory opinion on an issue before it becomes justiciable

Decisions of the Commissioner of Education # 16,313.

Pursuant to the authority set out in Education Law §2568,* a employee of the New York City Department of Education [H.C.A.] was directed to report for a medical examination.

Contending that, among other things, the order directing H.C.A. to report for the medical examination constituted retaliation against H.C.A as the result of the filing an EEOC complaint against the Department alleging sexual harassment and retaliation, the employee appealed to the Commissioner of Education. 

The Department, however, asked the Commissioner to dismiss H.C.A’s appeal as moot “ because it had canceled and had removed the request for the examination from H.C.A’s personnel file.

The Commissioner, commenting that only matters in actual controversy will be considered and no decision will be promulgated involving a situation that longer exist or which subsequent events “have laid to rest,” granted the Department’s motion to dismiss.

As the only relief H.C.A requested “was interim relief and removal of the medical evaluation request from her personnel files,” which the Department represented it had already done in its answer to H.C.A ‘s appeal, the Commissioner dismissed H.C.A‘s appeal as moot but commented that H.C.A. has the right to commence an appeal with a request for interim relief in the event Department took such action in the future.

* §2568, which authorizes the Superintendent of schools to require medical examination of certain employees of certain boards of education, provides, in pertinent part: The superintendent of schools of a city having a population of one million or more shall be empowered to require any person employed by the board of education of such city to submit to a medical examination by a physician or school medical inspector of the board, in order to determine the mental or physical capacity of such person to perform his duties, whenever it has been recommended in a report in writing that such examination should be made.

Unpaid deferred salary increases not included in determining a retirement allowance

Unpaid deferred salary increases not included in determining a retirement allowance

Kivo v. Levitt, 67 AD2d 464

The salary increase negotiated by the employee’s union to Kivo. Instead the payment was deferred under the New York State Financial Emergency Act for the City of New York. The employee then retired. 

When the amount of the deferred salary increase was not included in the calculation of the employee’s final average salary for retirement purposes, Kivo sued.

The Appellate Division ruled that a public employer may not agree through a collective bargaining agreement to give retirement benefits that are contrary to state law.

The Retirement and Social Security Law provided that deferred or suspended wages, the payment of which depended upon the occurrence of some future event, are not includable for the purposes of calculating final average salary for retirement.

The Court of Appeals, in affirming the Appellate Division [see 50 N.Y.2d 1017], expressed no opinion as to the result had the deferred payments actually been made to Kivo prior to her retirement “for this question is not presented by the facts of this case”.

This suggests that had Kivo actually received the payment, even as a lump sum, before retirement, the court would have permitted the amount received to have included in the calculation of final average salary.

Residence in a jurisdiction as a qualification for appointment

Residence in a jurisdiction as a qualification for appointment

Op St Comp 80-11

The State Comptroller has issued an opinion indicating that an employee of a municipal Department of Sanitation may not be required to reside in the municipality.

The Comptroller noted a section of the Public Officers Law that excepted sanitation workers from automatic removal from their position if they cease to be a resident of the municipality.

Failure to admit having a criminal conviction results in removal from state job

Failure to admit having a criminal conviction results in removal from state job

An arbitrator held that the State acted properly when it removed an employee form his position upon discovery that he had failed to report his earlier conviction on the application form for his job.

The employee had indicated that he had never been convicted when in fact he had been convicted of a number of crimes.

The Civil Service Law (Section 50.4) provides for the removal of an employee found to have falsified his application form. In such cases the law requires that the employee be given an opportunity to explain the matter before being removed from the position.

It appears that the reason for the employee’s removal was the falsification of the information on the application form, not the fact that he had earlier been convicted.

Generally the employee or applicant having a criminal conviction in his record may not be barred from employment unless the offense is found to be job related and has a potential for a breech of faith or a related problem.

For example, conviction for illegal possession of a drug might be a basis for disqualifying a person seeking a position in a pharmacy where controlled substances and drugs are typically available for dispensing but probably would not be relevant in connection with a clerical position in an office.

Transfer of leave credits between jurisdictions may be permitted

Transfer of leave credits between jurisdictions may be permitted

Op St Comp 79-610

The State Comptroller has issued an opinion in which he states that a town may permit employees who transfer to the town from another municipal employer to bring all or some of their annual and sick leave credits with them.

Such a procedure may be authorized by a local law, provision of the controlling collective bargaining agreement or a resolution.