School employees ask the Commissioner of Education to remove members of the same family simultaneously serving on a school board from the Board

School employees ask the Commissioner of Education to remove members of the same family simultaneously serving on a school board from the Board

Appeal of Kevin Reis and Joseph R. Argus from action of the Board of Education of the Taconic Hills Central School District regarding conflicts of interest, Decisions of the Commissioner of Education, Decision #16,335

In this appeal Taconic Hills CSD employees Kevin Reis and Joseph R. Argus filed an application with the Commissioner of Education seeking the removal of Donald McComb, Robert McComb and George Lagonia, Jr. as board members and the removal of Donald McComb and George Lagonia, Jr. as varsity coaches.

§2103.3 of the Education Law provides that “ Not more than one member of a family shall be a member of the same board of education in any school district”

Reis and Argus filed an appeal with the Commissioner of Education contending that Board incumbents Robert McComb, a member of the Taconic Hills CSD Board of Education since 2007, Lagonia and Donald McComb (the brother of Robert McComb) board members since 2008, were serving in such capacities in violation of §2103.3.

Further, Reis and Argus claimed that Lagonia and Donald McComb were appointed to varsity coaching positions by the Board, which they accepted as volunteers.

Essentially Reis and Argus argued that Donald McComb and George Lagonia were ineligible to simultaneously hold positions as members of the board, citing §2103.3, and as to their serving as coaches for the district, they also violated General Municipal Law §801.* As a remedy, they asked the Commissioner to remove the three board members from their positions as members of the board and that the commissioner remove Donald McComb and George Lagonia from their coaching positions.

The board raised a number of procedural defenses, contending that the appeal and application must be dismissed for failure to state a cause of action and for failure to comply with the notice requirements of 8 NYCRR §277.1(b; that the petition and application were not properly served, and that Reis lacks standing to file the application and appeal. 

The Commissioner did not consider the merits of the allegations made by Reis and Argus, holding that “To the extent petitioners seek the removal of the individual respondents from the board, the appeal must be dismissed for failure to comply with §277.1 of the Commissioner’s regulations.”

The Commissioner explained that §277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office.  In this case, petitioners failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310. 

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

In addition, the Commissioner said that “The appeal and application must also be dismissed for improper service upon the individual respondents and, as a consequence, for failure to join them as necessary parties,” pointing out that §275.8(a) of the Commissioner’s regulations requires that an appeal be commenced by personal service of a copy of the petition upon each named respondent or, “if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent’s residence with some person of suitable age and discretion, between six o’clock in the morning and nine o’clock in the evening, or as otherwise directed by the commissioner.”

Here, however, the Commissioner’s Office of Counsel did not authorize alternative service. Accordingly, said the Commissioner, no personal service was made on the individual respondents by means of the service attempted by Reis and Argus and thus they failed to obtain jurisdiction over them for this reason as well.

Turning to another issue, the request filed by the members of the board seeking “a certificate of good faith pursuant to Education Law §3811(1),” the Commissioner said that “Such certification is solely for the purpose of authorizing the board to indemnify the individual respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties as board members.”

Noting that it was appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith, the Commissioner said in this instance “there has been no finding that the individual respondents acted in bad faith,” and certified “solely for the purpose of Education Law §3811(1) that they are entitled to receive the requested certificate.”

* §801of the General Municipal Law prohibits public officers and employees having a “conflicts of interest” in performing of certain official duties.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16335.html

Call “911” for assistance when an individual assaulted a fellow worker did not constitute misconduct under the circumstance

Call “911” for assistance when an individual assaulted a fellow worker did not constitute misconduct under the circumstance

NYC Human Resources Administration, OATH Index #314/12

OATH Administrative Law Judge Ingrid M. Addison found that the employee's calling 911 following a client's physical assault of an HRA security officer did not constitute misconduct.

However, the employee’s shouting at his director within the earshot of clients was misconduct.

Because the entire incident was tense and highly charged, and employee acted out of concern for his colleagues, Judge Addison recommended that the employee be suspended without pay for two days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-314.pdf

Audits of various municipalities recently issued by the State Comptroller

Audits of various municipalities recently issued by the State Comptroller

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audit:. Click on the name of the jurisdiction to download the PDF file of the audit report.

Commack Fire District

Glens Falls City School District

Patchogue–Medford Union Free School District

Silver Creek Central School District

Town of Chateaugay

Town of Concord

Town of Ghent

Town of Hartland and

Town of Tuxedo

Employee’s claim that “I was pressured” into agreeing to a plea bargain in a criminal action in the course of an administrative disciplinary hearing rejected by administrative law judge

Employee’s claim that “I was pressured” into agreeing to a plea bargain in a criminal action in the course of an administrative disciplinary hearing rejected by administrative law judge

NYC Department of Sanitation v Bongiardina, OATH Index #1971/11

OATH Administrative Law Judge Faye Lewis recommended that a NYC Department of Sanitation employee who plead guilty in criminal court to the charge that he had accepted an unlawful gratuity in violation of Penal Law Section 200.35, a Class A misdemeanor.

The employee’s plea included a statement on the record that he accepted a gratuity while performing his job duties, a violation of the Department’s code of conduct and Mayor’s Executive Order 16. Executive Order 16 provides that any City employees “convicted of a crime* relating to their office or employment, involving moral turpitude or which bears upon their fitness or ability to perform their duties or responsibilities . . . absent compelling mitigating circumstances . . .” shall be dismissed for his or her position. Judge Lewis found that this plea conclusively established that the acts underlying the crime occurred.

The ALJ rejected the employee’s claim that he was pressured into agreeing to the plea bargain by his co-defendants, finding he could not show “any concrete reason for believing that the co-defendants would retaliate against him” if he failed to do so.

The Commissioner adopted the ALJ’s findings and noted that her decision was based on the evidence and precedents.

However, considering the employee’s good work record and his lesser role in the misconduct involving his co-workers, the Commissioner elected not to terminate his employment and imposed a 30 work-day suspension without pay and the loss of 4 weeks vacation as the disciplinary penalty.

* An individual who enters a pled of guilty in a court of law is deemed to have been convicted of the charge[s] filed against him or her.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1971.pdf

A request for reconsideration of an administrative determination neither extends nor enlarges the statute of limitation for filing a timely Article 78 petition

A request for reconsideration of an administrative determination neither extends nor enlarges the statute of limitation for filing a timely Article 78 petition
Baloy v Kelly, 2012 NY Slip Op 01134, Appellate Division, First Department

The New York City Police Commissioner refused to issue a "good guy" letter authorizing Romeo Baloy to carry firearms upon retirement from the New York Police Department,.

In a letter to Baloy’s wife in August 2006, the Department explained that Baloy’s application for the license was denied because, at the time of his retirement, he was on restrictive duty and ineligible to possess firearms.

Baloy subsequently filed a petiton pursuant to Article 78 of the Civil Practice Law and Rules seeking a court order compelling the Commissioner to issue such a letter to him.

Supreme Court dismissed Baloy’s petition, indicating that the Department’s letter to his wife was a "final and binding" determination and Baloy knew or should have known that he was "aggrieved" by it. Accordingly, the four-month statute of limitations began to run, at the latest, upon receipt of the letter.

The Appellate Division agreed, ruling that Supreme Court  “correctly found” that a letter dated April 24, 2009 from Baloy's attorney was a request for reconsideration of the agency's determination, and thus did not extend the statute of limitations.

Further, said the court, as the letter dated May 6, 2009 from the Department reiterated that Baloy did not obtain a “good guy letter” upon retirement because of his restricted duty status, it was not a "new determination" that would suffice to revive the statute of limitations.

In any event, the Appellate Division said that “The possibility of obtaining administrative relief had been exhausted when [Baloy] retired without a change in his restricted duty status.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01134.htm