Failure to satisfy all required procedural elements in an appeal to the Commissioner of Education is fatal to the Commissioner having jurisdiction to consider the matter

Failure to satisfy all required procedural elements in an appeal to the Commissioner of Education is fatal to the Commissioner having jurisdiction to consider the matter

Appeal of Brian M. Kelty seeking the removal of district clerk Concetta Carr, Decisions of the Commissioner of Education, Decision #16,325

Alleging numerous irregularities in the conduct of the election of various candidates seeking to become members of the school board, Candidate Brian M. Kelty claimed that any discrepancy in the recording of votes was due to district clerk’s incompetence and/or the mechanical failure of the voting machines.*  

The Commissioner dismissed the appeal, noting that Kelty had failed to join necessary parties; i.e., any  party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.

In this instance the annulment of the election results as demanded by Kelty would affect the four winning candidates. Accordingly, they are necessary parties to the appeal.

Also, said the Commissioner, “although Carr was served with the petition in her capacity as respondent’s district clerk, she was not named as a respondent in either the notice of petition or the petition itself.” The Commissioner explained:

1. Mere service of the petition does not accomplish joinder of the respondent. 

2. The notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office.

3. A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.

In light of this, said the Commissioner, “I need not consider the parties’ remaining contentions” and dismissed Kelty’s appeal.

* Kelty also challenged “the impartiality” of the district clerk and several trustees on the board because their names appeared on another candidate's petition and alleging that this constituted “improper electioneering.”

The decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume51/d16325.html

Both the New York City’s Conflicts of Interest Law and §§3020 and 3020-a of the Education Law apply to a New York City educator

Both the New York City’s Conflicts of Interest Law and §§3020 and 3020-a of the Education Law apply to a New York City educator

Rosenblum v New York City Conflicts of Interest Bd., 2012 NY Slip Op 00854, Court of Appeals

The Court of Appeals held that the Conflicts of Interest Board of the City of New York (COIB) is authorized to enforce the Conflicts of Interest Law set out in the New York City Charter §§2600-2607, with respect to a public servant who is also subject to disciplinary action pursuant to §§3020 and 3020-a of the Education Law.*

Accordingly, said the court, the Appellate Division had improperly barred the City's Office of Administrative Trials and Hearings (OATH) from proceeding with an administrative trial against a tenured educator employed in the City's public school system.

COBI alleged that the educator had violated §2604(b)(3) of the Conflicts of Interest Law, which prohibits a public servant from "us[ing] or attempt[ing] to use his or her position as a public servant to obtain any . . . private or personal advantage, direct or indirect, for the public servant or any person or firm associated with the public servant.” It served the educator with a copy of its petition asking OATH to find that the educator had, in fact, “violated the law and to impose a $10,000 fine (the maximum allowed at the time) and grant such further relief as might be just and proper.”

The educator asked OATH to dismiss COBI’s petition, contending that “Education Law §§3020, 3020-a and 2590-j (7),** as supplemented by the collective bargaining agreement between the New York City Department of Education and his union, the Council of Supervisors and Administrators, Local 1, AFSA, AFL-CIO (CSA), was the exclusive method for disciplining a tenured pedagogue.”
 

Noting that §2603(h)(2) of the Conflicts of Interest Law requires COBI to refer an alleged ethics violation to the public servant's employing agency before holding a hearing, and for that agency to consult with COBI before making a final decision, the court said “This certainly makes sense as the employing agency may not otherwise be aware of the circumstances underlying the alleged ethics violation and is free to pursue a wider range of penalties for misconduct than [COBI,]”

However, said the court, this requirement does not mean the COBI is precluded from proceeding if the agency decides not to pursue disciplinary charges against the public servant for an ethics violation. Further, noted the court, §2603(h)(6) of the Conflicts of Interest Law specifically provides that COBI “is not prevented from acting where the employing agency, in fact, decides to terminate or otherwise discipline a public servant.”

As COBI, explained the court, may still act when the employing agency has imposed discipline, there is no basis for interpreting the Conflicts of Interest Law as forbidding COBI from acting where the agency has elected not to pursue disciplinary action, especially since such a decision does not connote vindication.

* The court decided that the Conflicts of Interest Law was not inconsistent with §§3020 and 3020-a of the Education Law and did not address the educator’s argument that “in the event of a conflict” §§3020 and 3020-a would necessarily trump the Conflicts of Interest Law.

** Presumably the same would be true with respect to individuals subject to disciplinary action pursuant to §75 of the Civil Service Law or disciplinary procedures negotiated pursuant to Civil Service Law §76.4, as the court noted that over 90% of the City's workforce “is entitled to the civil service protections afforded by §3020-a or similar provisions of State law.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00854.htm

More on the liquidation of leave credits upon separation from service

More on the liquidation of leave credits upon separation from service

As a follow-up to a NYPPL posting replying to an inquiry concerning the liquidation of leave accruals upon separation,* a reader asks: Is an employee terminated for cause entitled to payment of accrued vacation leave credits?

Among the decisions in NYPPL’s files addressing this issue is Rubinstein v Simpson, 109 AD2d 885.

In Rubinstein the Appellate Division said no, explaining that in the absence of a statutory or contractual right to such payment, the employer does not owe the dismissed individual  any payment for his or her unused vacation leave accruals upon his or her termination for cause.

The State's Attendance Rules for the Classified Service (4 NYCRR 30.1), which apply to employees of the State as the employer, provides that "No employee who is removed from State service as a result of disciplinary action, or who resigns after charges of incompetence or misconduct have been served, shall be entitled to vacation credits...."

A number of municipal civil service commissions have adopted a similar rule. According to Rubinstein, such a rule is not necessary. Unless there is some statutory or contractual right to such payment, the employer may lawfully refuse to liquidate the dismissed employee's leave accruals.

However, under certain circumstances such payment to an individual terminated from service is required. For example, when an employee was earlier refused permission to use leave credits “because of the demands of work” and was later terminated, the Appellate Division ruled that the employee was entitled to payment for his unused leave accruals. (See Clift v City of Syracuse, 45 AD2d 596.)

* See http://www.publicpersonnellaw.blogspot.com/2012/02/liquidation-of-leave-credits-upon.html

Governor Cuomo and NYSCOPBA President Donn Rowe announce a tentative contract agreement between the State and NYSCOPBA law enforcement unit members

Governor Cuomo and NYSCOPBA President Donn Rowe announce a tentative contract agreement between the State and NYSCOPBA law enforcement unit members

Source: Office of the Governor

On February 9, 2012 Governor Andrew M. Cuomo and New York State Correctional Officers and Police Benevolent Association (NYSCOPBA) President Donn Rowe announced a tentative contract agreement between the State and NYSCOPBA law enforcement negotiating units members. This tentative agreement is subject to ratification by unit members. 

NYSCOPBA represents over 26,000 New York State employees in the Security Services Unit. The Governor said that the tentative agreement applies to law enforcement members "who are not eligible for arbitration."*

The tentative contract includes zero percent wage increases for 2011-2013 and ensures protections against layoffs, and offers health benefits commensurate with other state bargaining units. The contract provides for a 2% increase in both 2014 and 2015, 9 days of deficit reduction leave, and adjustments to the health insurance premium.

Among the proposed agreement, which follows the pattern of contracts negotiated over the past year, are the following:

1. A zero percent wage increases for 2011-2013, a 2% increase in both 2014 and 2015 plus 3% and 4% wage increases for 2009-2010; same pattern as other units. These increases were previously reserved for in the state financial plan.

2. A $1,000 retention bonus paid out $775 in the third year and $225 in the fourth year.

3. Deficit Reduction Leave of five days this fiscal year and four days next fiscal year.

4. Employees will be repaid the value of 4 days in equal installments starting at the end of the contract term.

5. Retroactive payments that are scheduled to be paid in two installments next fiscal year.

6. A two percent increase in ratio of the State/Employee health insurance premium contributions by employees Grade 9 employees and below, making the employees’ share 12% of the cost of individual coverage and 27% of the cost for dependent coverage; and a six percent increase in the ratio of the State/Employee health insurance premium contributions for employees Grade 10 and above, making such employees’ share 16% of the cost of individual coverage and 31% of the cost of dependent coverage.

7. A health insurance plan opt-out so officers can opt-out through a spouse/partner to a non-State health plan.

8. A labor/management committee to review all leave taken by officers, including annual, personal, sick, workers compensation, and the manner of such use. Recommendations will be made to the President of NYSCOPBA and the GOER Director for implementation.

9. Officers will receive broad layoff protection. [Workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation.]

* Presumably referring to the provisions set out in Civil Service Law §209.4.

Employee terminated after being found guilty of falsification of her time and attendance records

Employee terminated after being found guilty of falsification of her time and attendance records

Aiken v City of New York, 2012 NY Slip Op 00824, Appellate Division, First Department

The Appellate Division affirmed a post-hearing arbitration award finding that the employee was guilty of three of the specifications charged, and that the Department of Education (DOE) had just cause for terminating her from her position. The court said that the evidence supported the arbitrator's finding that the employee, whose duties included entering data into DOE computers reporting the hours worked by staff, had [1] entered hours in the system for herself in excess of the hours she was permitted to work, without authorization; [2] did not work those additional hours; and [3] following her reassignment, she improperly reentered the computer system and changed the fraudulent numbers.

The court said that although the employee denied any knowledge of the limit to hours she was permitted to work without approval, this claim was refuted by the testimony of the school principal, the employee’s union representative and a letter  that the she had signed.

As to the penalty imposed, dismissal, the Appellate Division said that termination “was in accord with due process and was justified by [the employee’s] actions, particularly where [she] refused to accept any responsibility for her actions and asserted her innocence in the face of the overwhelming evidence to the contrary “

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00824.htm