Appeal seeking removal of interim school superintendent from that position survives his or her appointment as the school district’s superintendent of schools

Appeal seeking removal of interim school superintendent from that position survives his or her appointment as the school district’s superintendent of schools

Application of Sally Stephenson seeking the removal of the Hamburg Central School District’s Interim Superintendent of Schools and President of its Board of Education, Decisions of the Commissioner of Education, Decision No. 16,330

In two separate applications, Sally Stephenson asked the Commissioner of Education to remove the Hamburg Central School District’s interim superintendent and the School District’s board president. Both appeals were consolidated for decision.

One of the issues concerned the interim superintendent’s assertions that Stephenson’s application for his removal must be denied as moot because he is no longer the interim superintendent. 

Although the Commissioner stated that he would “only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest,” he ruled that such was not the case here.

Noting that it was correct that the interim superintendent was no longer employed by the School Board as its interim superintendent, the Commissioner said that he had appointed to the position of superintendent of schools and thus is a school officer as defined in Education Law §306. Accordingly, said the Commissioner, Stephenson’s application would not be denied on this ground.

Ultimately the Commissioner dismissed both applications after finding that they had not been properly served and for other procedural reasons.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16330.html

A body electing to go into executive session must indicate the precise reasons for its so doing and not merely recite the statutory categories for doing so

A body electing to go into executive session must indicate the precise reasons for its so doing and not merely recite the statutory categories for doing so

Zehner v Board of Educ. of Jordan-Elbridge Cent. School Dist., 91 AD3d 1349

The basic rule is that every meeting of a public body shall be open to the general public, except that an executive session of such body may be called and business transacted thereat in accordance with Section 105 of the Public Officers Law.

An executive session is not open to the general public, but the subjects that may be discussed in such a session are limited by §105 of the Open Meetings Law.* Those set out the statute include matters involving public safety, proposed, pending or current litigation, collective bargaining, and matters concerning the appointment or employment status of a particular person.

In this instance, said the Appellate Division, Supreme Court properly determined that the School Board violated the Open Meetings Law on three occasions when it merely recited the statutory categories for going into executive session without setting forth a precise reason or reasons for doing so.

Citing Daily Gazette Co. v Town Bd., Town of Cobleskill, 111 Misc 2d 303, the Appellate Division said that §105 of the Open Meetings Law is to be strictly construed and that the “real purpose of an executive session will be carefully scrutinized.” This, court explained, was to make certain that the mandate of the Open Meetings Law would not be thwarted “by thinly veiled references to the areas delineated thereunder."

Noting that §107(5) of the Open Meetings Law provides that "costs and reasonable attorney fees may be awarded by the court, in its discretion, to the successful party," the Appellate Division said that it did not perceive any abuse of Supreme Court's discretion in awarding attorney fees to Zehner.

* Section 105 of the Public Officers Law provides that “A public body may conduct an executive session for the below enumerated purposes only, provided, however, that no action by formal vote shall be taken to appropriate public moneys:

 a. matters which will imperil the public safety if disclosed;

 b. any matter which may disclose the identity of a law enforcement agent or informer;

 c. information relating to current or future investigation or prosecution of a criminal offense which would imperil effective law enforcement if disclosed;

 d. discussions regarding proposed, pending or current litigation;

 e. collective negotiations pursuant to article fourteen of the civil service law;

 f. the medical, financial, credit or employment history of a particular person or corporation, or matters leading to the appointment, employment, promotion, demotion, discipline, suspension, dismissal or removal of a particular person or corporation;

 g. the preparation, grading or administration of examinations; and

 h. the proposed acquisition, sale or lease of real property or the proposed acquisition of securities, or sale or exchange of securities held by such public body, but only when publicity would substantially affect the value thereof.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00623.htm

Applying an employer’s anti-fraternization policy

Applying an employer’s anti-fraternization policy

Source: Portland [Maine] Press Herald news report

OATH Administrative Law Judge John B. Spooner sustained charges that a correction officer engaged in undue familiarity with an ex-inmate and made false statements about the relationship and recommended that the correction officer be dismissed. [See http://www.publicpersonnellaw.blogspot.com/2012/02/hearing-officer-recommends-correction.html ]

The arbitrator in another “prohibited association” case came to a different conclusion and ruled that a State of Maine Bureau of Insurance insurance examiner who married a woman who worked for an insurance company should not have been terminated from his position.

According to Portland [Maine] Press Herald, the examiner told his supervisor that “he might want to date” a woman that he had noticed while performing an audit of an insurance company. His supervisor told the examiner not to socialize with the woman while he was conducting the audit. The examiner complied with his superior’s instruction but after completing the audit the examiner contacted the woman and ultimately they married.

When his supervisor directed the examiner to conduct another audit of the insurance company he declined, contending that it constitute a conflict of interest for him to do so. Ultimately Anne Head, commissioner of the Maine Department of Financial and Professional Regulation wrote the examiner, stating that "Your marriage to an insurance company manager represents a conflict of interest. As a result of this determination, your employment with the Bureau of Insurance will cease."

The arbitrator ruled that “the State did not have grounds to fire [the insurance examiner] simply because he got married.” The arbitrator found that there was no evidence that “the bureau considered any alternatives to termination, in terms of assignment of other duties.” Ruling that the examiner should not have terminated from his employment by the Bureau, the arbitrator directed that the examiner be reinstated to his former position with back pay.

Failure to exhaust administrative remedy held a bar to seeking judicial relief

Failure to exhaust administrative remedy held a bar to seeking judicial relief
Holzman v Commission on Judicial. Conduct, 2012 NY Slip Op 01577, Appellate Division, First Department

Surrogate Court Judge Lee L. Holzman sought a stay of disciplinary proceedings brought against him by the Commission on Judicial Conduct pending the resolution of the criminal prosecution of a witness to the disciplinary proceedings.

Supreme Court denied issuing the stay and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division said that the denial of the petition and dismissal of the proceeding was warranted because Judge Holzman had failed to exhaust the administrative remedy available to him pursuant to Judiciary Law §44(7).*

Further, said the court, Judge Holzman “has not demonstrated that doing so would be futile or that irreparable harm would occur absent judicial intervention,” commenting that the "possibility of reputational harm" claimed by Judge Holzman “does not constitute irreparable injury warranting the relief sought by him.”

* The history to date of these proceedings is posted on the Internet at:

http://www.cjc.ny.gov/Pending.Proceedings/Holzman.htm

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2012/2012_01577.htm

Confusion regarding date of return from FMLA leave decided against the employer

Confusion regarding date of return from FMLA leave decided against the employer

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Carl Thom worked as a molder for American Standard for 36 years before his discharge on June 17m 2005.  Prior to his discharge, Thom requested and was approved FMLA leave for the period April 27, 2005 through June 27, 2005 for shoulder surgery.  Because his shoulder healed more quickly than anticipated, Thom submitted medical documentation indicating that he could return to work on "light duty" on May 31, and set June 13 as the date Thom could return to full duty.  American Standard denied Thom's request to return to work earlier than approved, albeit on light duty as against company policy.  Thom did not return to work on June 13.

When contacted the next day, Thom explained that he did not return to work because he was experiencing increased shoulder pain, but would return on June 27, the end date of his approved leave.  American Standard discharged Thom for unexcused absences from June 13-17.

Thom sued alleging that his discharge violated the FMLA.  The district court awarded partial summary judgment in favor of Thom on his FMLA interference claim.  Thom argued that American Standard failed to adequately notify him of its method for calculating FMLA leave because it did not notify him in writing or otherwise that company policy was to use a "rolling" method of leave rather than the calendar method. 

Under the rolling period method, the 12 weeks of leave is calculated "backward from the date an employee uses any FMLA leave.  Under this method, Thom's FMLA leave would have expired on June 13.  Under the calendar year method, Thom's leave would have extended through July 14.  The only written document Thom received from the company stated that his leave would expire on June 27.  American Standard firs notified Thom that it had accelerated his return-to-work date on June 14, a day after it had elapsed.  American Standard first notified Thom that it used the "rolling period" method for calculating the 12-month FMLA leave year after Thom filed his lawsuit.

American Standard argued that it had always used the "rolling period" method of calculating FMLA leave, and that Thom should have known this fact.  It further argued that Thom was on constructive notice through its union that the company used the rolling" method.   

The Sixth Circuit held that, even if notice to the union of the employer's method for calculating the FMLA leave-year can be imputed to an employee, that is not the case where, as here, American Standard officially approved Thom's leave through June 27- 10 work days in excess of what would have been permitted by the "rolling" method.  In short, the Court opined that "actual notice of a particular return-to-work date trumps constructive notice of another." The Sixth Circuit affirmed the decision of the district court that American Standard interfered with Thom's FMLA rights.  The Court also affirmed the award of $104,354.85 in back pay, and an equal amount in attorney fees and costs.

Mr. Bosland comments: Employer's can choose one of four methods for determining the 12-month period in which the 12 or 26 weeks of must be taken: (1) calendar; (2) other fixed leave year; (3) rolling back method; and (4) measured forward method.  See 29 CFR 825.200.  Employers are also required to notify the employee of the applicable method for calculating the 12-month leave year as part of the rights and responsibilities notice.  29 CFR 825.300(c)(1).  The case reminds employers that they need to clearly notify their employees of the FMLA leave year method they have selected.  

 The case is interesting as it leaves open the possibility of imputing notice to the union of the leave year method selected to the employee. Arguably, the DOL's requirement that employer's include notice of the method of leave year calculation in the rights and responsibilities notice should foreclose the viability of such constructive notice.  Employer's would be well advised to publish clear notice of the FMLA leave year method they have selected to all employees and avoid the much riskier constructive notice argument altogether.   

  

The decision, Thom v. American Standard, Case No. 09-3507/3508  (6th cir. January 20, 2012), is posted on the Internet at: http://www.ca6.uscourts.gov/opinions.pdf/12a0016p-06.pdf

The Sixth Circuit covers Kentucky, Tennessee, Ohio, and Michigan.