Employer may recover tuition costs after teacher did not return from a paid sabbatical leave

Employer may recover tuition costs after teacher did not return from a paid sabbatical leave

Trumansburg Central School District v. Chalone¸ 87 A.D.2d 921

In the Trumansburg Central School District case the Appellate Division agreed that the District could recover the salary paid to an employee during a sabbatical leave when the employee failed to return as agreed.

In a similar situation, the State Comptroller ruled that a Village may adopt a resolution requiring employees who are sent to schools for specialized training at the Village’s expense in order to qualify for a promotion to reimburse the Village for the cost of such training if they resign within a specified period of time (Op. St. Comp. 82-4).           

Stopping the hearing creates a problem

Stopping the hearing creates a problem

Swanteson v. City School District of the City of New York, 88 A.D.2d 907

A person serving as a hearing officer may be tempted to terminate or “shorten” a hearing because one or more of the participants becomes unruly or abusive.

A hearing officer did stop the hearing before the employee had an opportunity to make a “statement” specifically permitted by the controlling rules of procedure because of “personal vituperation and ... abrasive behavior, despite repeated warnings.”

The hearing officer then sustained the employee’s unsatisfactory service rating, which was later affirmed by the Chancellor of the Board of Education.

Swanteson sued, arguing that the Board had failed to follow its own procedures.

The Appellate Division agreed and reversing a lower Court, holding that the failure to provide Swanteson with the “Review Format” was an abuse of the chairperson’s discretionary powers to make necessary “adjustments” in the format and insure an “expeditious and non-repetitious presentation ... denied (Swanteson) a substantial right.”

The matter was then sent back to the District with instructions that Swanteson “be given the opportunity to exercise his right to make a presentation and statement on his own behalf as provided in the Review Format.”

The termination of a hearing because of “disruptive behavior” apparently will not be considered a reasonable and proper exercise of discretion.

Tenured employee alleged to have violated the jurisdictions residence requirement is entitled to administrative due process prior to his or her dismissal from the position

Tenured employee alleged to have violated the jurisdictions residence requirement is entitled to administrative due process prior to his or her dismissal from the position

Matter of Tanner, 88 A.D.2d 661

An employee was absent for four months from her job. When she attempted to return, she was told her employment was terminated.

Two weeks later she was served with charges of misconduct pursuant to Section 75 of the Civil Service Law. No hearing was held, however, as the employee was notified she had violated a county ordinance which prohibited a county employee from residing outside the county.

Tanner was also told she was not entitled to a hearing on the question her violation of the residency requirement. When she sued the Appellate Division said that Nassau County was required to reinstate her to her former postion and, further, ordered the County to pay Tanner more than three years of back salary (less other earnings).

The Appellate Division explained that although a municipality may require employees to live within the boundaries of the jurisdiction (see, for example, Section 30, Public Officers Law), it may not, without a hearing pursuant to Section 75 of the Civil Service Law (or its contract equivalent), terminate a tenured employee who violates the residency requirement,

A formal rule or regulation describing the alleged act of misconduct is not required in order to file disciplinary charges against an employee

A formal rule or regulation describing the alleged act of misconduct is not required in order to file disciplinary charges against an employee

Matter of Matter of Foster v Aurelius Fire District, 2011 NY Slip Op 09483, Appellate Division, Fourth Department

Kevin Foster commenced a CPLR Article 78 proceeding challenging the determination finding him guilty of misconduct based upon actions constituting insubordination and failure to follow the chain of command. The penalty imposed: suspension and then reinstatement subject to a probationary period.

When Supreme Court transferred, the Appellate Division addressed the merits of Foster’s arguments “in the interest of judicial economy.”*

As to the merits of the issues raised by Foster, the Appellate Division rejected his argument that the charge against him should have been dismissed because it failed to specify any rule, regulation, policy or bylaw that he violated.

Noting that Forster had conceded at the administrative hearing that he was aware of Fire District's policies with respect to the chain of command, the court said that record establishes that Foster “deliberately circumvented that chain of command to undermine the authority of his superior officer.”

Citing Murphy v County of Ulster, 218 AD2d 832, leave to appeal denied 87 NY2d 804, the Appellate Division held that under the facts of this case Foster’s contention that “a specific act or misdeed must be embodied in a formal rule or regulation before it may serve as a basis for disciplinary action is unavailing."

The court also rejected Foster’s claim that the penalty imposed, which includes suspension followed by a probationary period, is "so disproportionate to the offense as to

* The Appellate Division commented that as Foster did not raise a substantial evidence issue, Supreme Court erred in transferring the proceeding to it.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09483.htm

Independent contractor denied retirement system credit

Independent contractor denied retirement system credit

Senapole v. Field, 88 A.D.2d 1012

The Town of Colonie designated a person to serve as “clerk of the works” for a Town building project. When he was denied retirement credit (he was a member of the Employees Retirement System in connection with previous State employment) he sued the Town.

The Appellate Division held that as the “owner’s representative” Senapole served as an independent contractor and therefore he was not an employee of the Town.

Noting that Senapole had no superior who supervised his work, reported to the Town Supervisor regarding the progress of the project, and that he was not on the Town’s payroll (Senapole was paid by “voucher”), the Court concluded that he was not an employee for the purposes of the Retirement and Social Security Law.