Employee’s petition seeking to annul the termination of his or her probationary employment dismissed as untimely

Employee’s petition seeking to annul the termination of his or her probationary employment dismissed as untimely

Zarinfar v Board of Educ. of the City School Dist. of the City of NY, 2012 NY Slip Op 01753, Appellate Division, First Department

Supreme Court denied Majid Zarinfar’s petition seeking a court order annulling the NYC Department of Education’s decision terminating his employment as a probationary teacher and directing the Department to reinstate him to his position with back pay and interest.

The Appellate Division affirmed Supreme Court’s dismissing Zarinfar’s petition as untimely, noting that it had not been brought within four months of the effective date of his termination.

The court, citing Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, also commented that “Even if the petition was timely, we would find that it was properly dismissed [as Zarinfar] has failed to establish that the termination, which was based on unsatisfactory ratings and his failure to make recommended improvements, was for "a constitutionally impermissible purpose, violative of a statute, or done in bad faith."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01753.htm

New York Governor Cuomo announces agreements for the passage of an amendment to the Constitution and an enabling statutes to permanently reform the election redistricting process

New York Governor Cuomo announces agreements for the passage of an amendment to the Constitution and an enabling statute to permanently reform the election redistricting process

Source: Office of the Governor

On March 15, 2012 Governor Andrew M. Cuomo announced plans for the passage of a constitutional amendment and statutes that reforms the election redistricting process in New York State thereby "putting an end to the partisan and incumbent-protection Gerrymandering* that has plagued the process for over a century."


The Governor said that "This agreement will permanently reform the redistricting process in New York to once and for all end self-interested and partisan gerrymandering." The Legislature, Governor Cuomo reported, has agreed to pass “this historic constitutional amendment twice by a specified date, and passing a tough statute that mirrors the amendment” thus taking “a major step toward finally reforming the state's broken redistricting process.

The Office of the Governor reports that the agreement includes the following major components:


1. Constitutional Amendment: The Senate and the Assembly each agreed to introduce a resolution this session that will amend the state Constitution to establish a new redistricting process for both state legislative and congressional district lines. The separate statute discussed below requires the amendment to be passed a second time by both houses no later than January 30, 2013, at which point it will be placed on the ballot statewide for approval by the voters. The constitutional amendment will reform the redistricting process permanently beginning in the next cycle in 2020-22 as follows:

· The Independent Redistricting Commission. The constitutional amendment requires the appointment of an independent redistricting commission to draw the district lines, consisting of ten members: two appointees by each of the four legislative leaders and two appointees selected by at least five of those eight members. Neither of the latter two members shall have been enrolled members of either of the two major political parties in New York State in the last five years and at least one appointee made by either the assembly or senate minority leader must approve those two members. Accordingly, the commission's composition will ensure unprecedented and substantial roles in drawing the district lines for both the minority party conferences and for citizens who are not major party members.

The amendment further requires that the commission reflects "the diversity of the residents of this state with regard to race, ethnicity, gender, language, and geographic residence" and that the appointing authorities shall consult with organizations devoted to protecting the voting rights of minority and other voters concerning their appointments. The commission members must be registered voters in New York State, but shall not have been in the last three years (a) members of the state legislature or congress or a statewide official or the spouse of any of these elected officials, (b) a state officer or employee or legislative employee; (c) a registered lobbyist; or (d) a political party chairman. Together, these requirements will ensure that the commission's members are both independent, representative of the State's diverse communities, and sensitive to the critical importance to voters of fair and proper district lines.

· Commission Voting Rules to Ensure Independence and Curb Partisan Gerrymandering. To approve a districting plan, the independent redistricting commission requires the vote of at least seven of its ten members in support of the plan. If the speaker of the assembly and the temporary president of the senate are members of two different political parties, then the seven or more members who approve a plan must include at least one member appointed by the speaker of the assembly and one member appointed by the temporary president of the senate. If the speaker of the assembly and the temporary president of the senate are members of the same political party, then the seven or more members who approve a plan must include one member appointed by each of the four legislative leaders. This voting rule ensures that at least three members of the commission who were not appointed by the majority conferences in either house must approve a plan before it is sent to the legislature for a vote, a key barrier to partisan gerrymandering in the development of district maps.

· Commission Must Hold Extensive Public Hearings & Release Draft Plans with All Relevant Data Using Best Available Technology. To ensure greater transparency and public involvement, the amendment requires that the commission must hold numerous public hearings in specified cities and counties throughout the state and, prior to its first hearing, must make publicly available using the best available technology not only its draft plans but also all relevant data to facilitate public review and analysis of those plans, and the development of alternative plans. These provisions will create greater public transparency in the redistricting process and ensure that the commission's final districting plans reflect fully input from communities and individuals across the state.

· Iowa-Style Process for Legislature's Approval of Commission Plans Designed to Minimize Partisan Gerrymandering. After the commission's public hearings, the Legislature shall receive and approve or disapprove the commission's plans without amendment. If the commission's first plan is rejected, the commission must submit an amended plan, which must be voted upon by the legislature again without amendments. If the commission's second plan is also rejected upon such vote, each house may then amend that plan prior to approval except that such amendments must comply with the substantive principles set forth above and, pursuant to the statute being approved separately in conjunction with this resolution, cannot affect more than two percent of the population of any district in the commission's plan. This structure will provide strict restrictions on the legislature's changes to the commission's plans.

· Legislature's Voting Rules Designed to Protect Minority Conferences and Limit Gerrymandering. Special voting rules will govern each house's vote upon the independent redistricting commission's plans in order to protect the minority conferences in each house and ensure the integrity of the commission's plans by requiring approval by more than a majority of members under certain circumstances. If the Speaker of the Assembly and the Temporary President of the Senate are members of two different political parties, approval of a commission's redistricting plan shall require a vote in support of such approval by at least a majority of the members of each house. But if the Speaker and the Temporary President of the Senate are members of the same political party, then approval of a commission's redistricting plan shall require a vote in support of such approval by at least two-thirds of the members of each house. This rule will prevent in future decades the kind of one-party gerrymandering to suppress the minority party in a state that has plagued other states, like Texas, in the past.

· Substantive Criteria to Prohibit Partisan Gerrymandering and to Protect Minority Voting Rights and Communities of Interest. The commission's redistricting plans must be drawn according to principles that provide unprecedented restrictions on partisan gerrymandering, and new protections for the voting rights of racial and language minorities, and for existing communities of interest. In particular, the commission must consider whether district lines would result in the denial or abridgment of racial or language minority voting rights, no districts shall be drawn to have the purpose of, or result in, such denial or abridgement, and districts shall be drawn so that racial or language minority groups do not have less opportunity to participate in the political process than other members of the electorate and to elect representatives of their choice; districts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties; for the first time in the constitution, communities of interest must be considered in drawing district lines; districts shall contain as nearly as may be an equal number of inhabitants and any deviation in a district must be explained specifically by the commission; and districts shall be contiguous and as compact in form as practicable.

Together, these principles will provide for the first time strong and explicit restrictions on partisan gerrymandering, and protections in the constitution for minority communities beyond those contained in the federal Voting Rights Act which is facing increasing legal attacks in the courts.

· Judicial Review Provisions To Enforce Compliance With Independent Redistricting Process & Adherence to Substantive Principles. If the courts are called upon to review the district lines, this amendment requires that the court find such lines to be invalid in whole or in part if they are not in compliance with the procedural or substantive provisions of this article. Together with the other protections noted above, this provision will help to ensure that the district lines that are ultimately adopted reflect the independence, concern for minority voting rights, and attention to equal representation that the commission must provide.

2. Statute: The Senate and the Assembly each agreed to introduce a statute to be approved by both houses that mirrors the constitutional amendment in all respects except for two additional elements. As set forth in greater detail in the statute's effective date provisions, the statute is intended to ensure that, if the constitutional amendment is not passed for the second time in 2013 notwithstanding the public commitments by the two houses to do so, the statute will become effective and the redistricting process will be reformed by statute just as it would have been by constitutional amendment. These provisions further provide that if either house fails to pass the constitutional amendment a second time before January 30, 2013, then that house shall lose its appointments to the independent redistricting commission established by the statute and the governor will instead appoint those members. This provides a significant incentive for the legislature to honor their statutory commitment to pass the constitutional amendment a second time.


In addition, the statute further includes a restriction on any amendments made by the legislature to a districting plan submitted by the commission such that no amendment may affect more than two percent of the population of any district in such plan. This will ensure that the legislature's amendments may tweak, but cannot fundamentally alter the commission's district lines. It also provides more specific deadlines for each step of the redistricting process that are most appropriately placed in a statute rather than in the constitution. Critically, these additional provisions will be effective if the voters approve the constitutional amendment or if the statute instead becomes effective.

* Gerrymandering describes the effort to establish a political advantage for a particular party or group by manipulating geographic boundaries to create partisan or incumbent-protected districts. The practice was named after Massachusetts Governor Elbridge Gerry who, in 1812, signed a bill that rearranged Senate district lines to provide Jeffersonian Republicans with an advantage in the then upcoming Senatorial elections. 

Loss of employment by operation of law does not constitute an “adverse employment action” within the meaning of civil rights laws

Loss of employment by operation of law does not constitute an “adverse employment action” within the meaning of civil rights laws

Brown v. City of Syracuse, USCA, Second Circuit, Docket No. 10-0529-cv

Curtis Brown, an African-American former City of Syracuse police officer, was suspended with pay pending investigation of an incident and ultimately suspended without pay and terminated. *

Brown filed a civil rights complaint, contending that the City of Syracuse unlawfully discriminated against by treating him more severely than white officers who committed acts of an equal or more serious nature. 

The Circuit Court of Appeals, noting that Brown had subsequent guilty plea to certain criminal charge, ruled that he could not prove an “adverse employment action” for any of the measures taken by by the City after his guilty plea as his plea of guilty resulted in his automatic termination in accordance with New York Public Officers Law §30(1)(e).**.

Further, as a matter of law, the court ruled that Brown’s suspension with pay pending the investigation did not, under the circumstances, amount to an adverse employment action.

Citing Joseph v. Leavitt, 465 F.3d 87at 91, the Circuit Court explained that “administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action” as “an employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.”***

Brown also claimed discrimination because he was deprived of “professional courtesy” that police sometimes extend to their fellow officers.

The Circuit Court disagreed, holding that his claim “fails under the rationale of Diesel v. Town of Lewisboro, 232 F.3d 92 (2d Cir. 2000), which held that a police officer was not entitled to the ‘professional courtesy’ of having his fellow police officers look the other way or otherwise work on his behalf to mitigate criminal charges.”

The Court of Appeals, after considering Brown’s other arguments, found them without merit and affirmed the District Court’s granting the City of Syracuse’s motion for summary judgment.

* On December 7, 2005, a disciplinary arbitrator reviewed Brown’s termination and found “just cause” existed to terminate Brown effective July 5, 2000.

** Public Officers Law §30(1)(e) provides that a public office becomes vacant upon the incumbent’s conviction of “a crime involving a violation of his oath of office" and a plea of guilty is deemed a conviction. Police officers are “public officers” with in the meaning of §30(1)(e).

*** N.B. The court, however, cautioned that it has “noted that our rule is not an absolute one, and that a suspension with pay may, in some circumstances, rise to the level of an adverse employment action.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/d7c9b26b-cefe-4365-9338-fef7922cb934/2/doc/10-529_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d7c9b26b-cefe-4365-9338-fef7922cb934/2/hilite/

Termination recommended as the penalty to be imposed on employee found guilty of theft of employer’s funds

Termination recommended as the penalty to be imposed on employee found guilty of theft of employer’s funds

NYC Department of Education v Hendricks, OATH Index #153/12

A custodian engineer [custodian] employed by the New York City Department of Education was charged with theft of funds from the custodial bank account, and fraud.

OATH Administrative Law Judge Ingrid M. Addison sustained the charges based on testimony from the director of school facilities, who was the custodian’s supervisor, an investigator with the Special Commissioner of Investigation for the New York City School District, and documentary evidence which included copies of checks drawn against the custodial account which the custodian had issued to himself and others.

Judge Addison found that the evidence established that the employee withdrew over $17,000 from the custodial bank account for non-school expenses, including tuition fees for his children’s private school, life insurance premiums and a political contribution. The evidence revealed that the individual had forged endorsements on checks and accepted kickbacks from others he had hired.

The employee, said the ALJ, also violated the Chancellor’s regulations and the City Conflicts of Interest Law by hiring and supervising his sister. ALJ Addison noted that the funds the custodian stole were intended to enhance the learning environment of children by ensuring that the school was safe and clean.

Because a custodian has unfettered access to the custodial bank account solely for those uses, the position demands someone whose honesty is beyond reproach and who is extremely ethical. Accordingly, for the proven charges, ALJ Addison recommended that respondent be terminated from his employment.  

The decision is posted on the Internet at:   

http://archive.citylaw.org/oath/12_Cases/12-153.pdf

Revised APPR Provisions New York State Teacher and Principal Evaluation 2012-13

Revised APPR Provisions New York State Teacher and Principal Evaluation 2012-13

Source: New York State Department of Education 

A Summary of revised APPR provisions captioned "New York State Teacher and Principal Evaluation 2012-13 and Beyond", and reflecting the anticipated changes resulting from enacting amendments to Education Law §3012-c proposed in February 2012 in the Executive Budget and the "Settlement of Litigation," has been posted on the Internet at:

http://engageny.org/wp-content/uploads/2012/03/nys-evaluation-plans-guidance-memo.pdf


N.B.: The posting states that "To the extent that the language in this memo differs from the regulatory language ultimately adopted to conform to the statute, the language in the Regulation controls."