Administrative Law Judge rules that the Civil Service Law does not give the employer the authority to discipline an employee for alleged misconduct that occurred before he or she was employed

Administrative Law Judge rules that the Civil Service Law does not give the employer the authority to discipline an employee for alleged misconduct that occurred before he or she was employed

OATH Administrative Law Judge Faye Lewis, citing Umlauf v. Safir, 286 A.D.2d 267, noted that it was error for the employer to attempt to terminate an employee for alleged pre-hiring misconduct as the authority with respect to such alleged pre-hiring conduct is “statutorily vested in the head of the New York City Department of … Citywide Administrative Services” pursuant to Civil Service Law §50(4).

§50(4) permits the “appropriate municipal commission” to “investigate the qualifications of an eligible after he [or she] has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... may revoke such eligible’s certification and appointment and direct that his [or her] employment be terminated.”

Other issues considered by Judge Lewis in making her determination included the applicability of §160.50 of the Criminal Procedure Law to the admissibility of certain exhibits in the course of the administrative disciplinary action; the crimes exception to the statute of limitations set out in §75 of the Civil Service Law; and the admissibility of certain statements that the employee made to NYC Department of Investigation personnel that the employee’s attorney contended were obtained in violation of the employee’s constitutional rights.

Ultimately Judge Lewis found the employee guilty of other disciplinary charges and recommended the penalty of dismissal “despite [the individual’s] lack of prior disciplinary history.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2571.pdf

State Department of Education’s advisory addressing changes in Education Law §3020-a effective April 1, 2012

State Department of Education’s advisory addressing changes in Education Law §3020-a effective April 1, 2012 

Source: SDE Office of Teaching Initiatives

As part of its 2011 legislative agenda, the Board of Regents sought a number of modifications to the tenured teacher hearing process set forth in Education Law §3020-a to address spiraling costs and the extraordinary length of time to conduct hearings. This legislation was introduced in the Assembly and Senate.* The Governor’s proposed 2012-13 State Budget included some of these reforms and the State Budget as adopted by the Legislature included a number of important programmatic and fiscal reforms.

The purpose of this memorandum is to clarify and provide guidance on the major changes set forth in Education Law §3020-a.  The Department is reviewing these changes and will make conforming amendments to the regulations to implement the law.  The Department will also be updating TEACH (a web-based data information system) to allow for greater access to case information and relevant dates.  During this transitional period, the Department thanks all affected parties in advance for their patience and cooperation as we work together to ensure successful implementation of the new Education Law §3020-a reform measures.

    

Below is a summary of the major Education Law §3020-a revisions.  For specific guidance, please refer to the actual statutory language, a copy of which is posted on the Internet at:

Education Law §3020-a Changes (Effective April 1, 2012) .

Effective Date

The change set forth in the amendments to Education Law §3020-a take place immediately and apply to all charges against tenured educators filed with the clerk or secretary of the school district or employing board on or after April 1, 2012. 

All affected parties should be aware of this effective date and are strongly advised to carefully review these changes and how they may affect any cases currently in progress or those that are anticipated.

The parties are strongly encouraged to develop the necessary tracking systems to ensure that responsibilities are carried out in a timely and professional manner, so that no party is unduly penalized by the very stringent timelines set forth in the statute.

Prohibition on Introduction of Evidence After 125 days

A significant change is the prohibition on the introduction of evidence more than 125 days after the filing of charges unless there are extraordinary circumstances beyond control of the parties set forth in Education Law §3020-a(3)(c)(vii).  Proceedings under §3020-a have traditionally taken far too long to resolve and this provision is designed to ensure timely resolution by prohibiting the introduction of evidence beyond a certain point in the proceeding.  This means that once the charges are filed, all parties should work expeditiously and cooperatively to complete the case in a timely manner so that cases are resolved within the statutory timeline of 125 days after the filing of charges. 

After 125 days no additional evidence shall be accepted unless there are extraordinary circumstances beyond control of the parties.  The “extraordinary circumstances” rule was meant to provide for that rare occasion when evidence truly could not be introduced in a timely manner.

The Department anticipates that modifications to TEACH will help the parties easily identify the relevant dates.  Until that time, arbitrators are expected to closely monitor the relevant dates and ensure adherence.

Department Selects Arbitrator When Parties Can Not Agree

The new amendments also modify the manner in which an arbitrator is selected if the parties fail to agree on an arbitrator selection within 15 days of receipt of the list.  Education Law §3020-a(3)(b)(iii) states that  “[i]f the employing board and the employee fail to agree on an arbitrator  to serve as a hearing officer from the list of potential hearing officers, or fail to notify the commissioner of a selection  within  such  fifteen day  time  period, the commissioner shall appoint a hearing officer from the list.”  This provision authorizes the Commissioner to select the arbitrator if the parties fail to agree by the 15th day.  It does not apply to NYC where there is an alternative procedure. 

Historically, the Department only intervened when notified of the failure to agree, however, the amended language does not require the Commissioner to wait until notification of the failure to agree.  The Commissioner will be authorized to select an arbitrator if no selection is affirmatively made by the 15th day. 

To ensure that all parties get proper notice of the list, the Department will continue its current practice of emailing the list of potential arbitrators to the school attorney and the employee attorney, if one has been designated by the employee.  Where no attorney is provided by the employee, the list will be sent directly to the employee. 

A hearing officer selection will be considered timely, if it is emailed to the dedicated tenure email box (TENURE@mail.nysed.gov) by the close of business on 15th calendar day. 

To minimize any potential delays that may occur at the school district level, the American Arbitration Association (“AAA”) has agreed to directly bill the school district for the production of the arbitrator list.  Schools are strongly encouraged to send the charges to the Department immediately without a check to AAA and make payment arrangements directly with AAA after the compilation of the list. AAA will take payment in the form of check or credit card for the $150 fee. 

Department Can Establish Maximum Arbitrator Rates and Study Hours

An amendment to Education Law §3020-a(3)(b)(i)(B) requires the Commissioner to establish a schedule for “maximum rates of compensation of hearing officers based on customary and reasonable fees for service as an arbitrator and provide for limitations on the number of study hours that may be claimed” (emphasis added).  The purpose of this amendment was to give the Commissioner the authority to control costs. 

Over the next several weeks, the Department will be conducting an analysis to determine both the appropriate rates and the maximum number of study hours for these types of proceedings.  Once the analysis is complete, the Commissioner will be establishing guidelines for arbitrator fees and study hours. 

All new arbitrator appointments will be contingent upon accepting the new maximum fee and study hour rates established by the Commissioner.

It is anticipated that the new TEACH modifications will incorporate changes in the manner in which arbitrator invoices are filed with the Department, to permit online filing to ensure accuracy, and improve the time it takes to process payments.

Department Can Exclude Arbitrators For Untimeliness

Pursuant to Education Law §3020-a(3)(c)(i)(B) the Department is authorized to monitor and investigate a hearing officer’s compliance with the timelines set forth in the statute. 

The Commissioner may exclude any hearing officer who has a record of continued failure to commence and conclude hearings within the timelines prescribed in the statute.

The Department anticipates that modifications to TEACH will help the parties easily identify the relevant dates.  Until that time, the Department will monitor manually. 

New Technology for Recording Hearings is Allowed

Education Law §3020-a(3)(c)(i)(D) continues the requirement that an accurate “record” of the proceedings be kept at the expense of the Department and furnished upon request to the employee and the board of education.  The statutory changes, however, permit the Department to take advantage of any new technology to transcribe or record the hearings in an accurate, reliable, efficient and cost effective manner. 

The Department will explore other cost-effective alternatives to recording and producing transcripts for these proceedings, however, there will be no immediate change to the manner in which these hearings are recorded.

Appropriation For New Cases

In order to ensure that the new reforms are successful, the law provides that any claims for cases in which charges were filed after April 1, 2012 be paid first out of the funds appropriated for the 2012-13 fiscal year pursuant to Education Law §3020-a(3)(b)(i)(A).  Total spending for 2012-13 is limited to $3.8 million.

This amendment will ensure that the Department is able to make timely payments for services rendered for new cases under the new system during 2012-13.  Thus arbitrators who accept cases under the new system with the new time constraints will be reimbursed for their services in a timely manner.  Any funds remaining will be used to pay for claims on cases that had charges filed prior to April 1, 2012. 

One Year limitation on Claims

Education Law §3020-a(3)(d) imposes a one-year limitation, following the final disposition of the hearing, for the submission of claims for reimbursement for services rendered.  The purpose of this amendment was to encourage timely submission of claims so that accurate budget assumptions can be made and claims can be paid for in a reasonable time. 

New Forms   The Education Law §3020-a forms are in the process of being updated.  It is imperative that schools use the updated forms for any cases commenced under the new system because they will reflect the new changes and provide critical information necessary to expedite the administrative steps for opening of cases and the appointment of the hearing officer.  It is anticipated that the new forms will be available within a week.  Please refer to: Teacher Tenure Hearing (3020a) for further information.

Questions

If you have any questions please contact Deborah A. Marriott, Director, Office of School Personnel Review and Accountability at 518-474-3021 or send an email to her attention at TENURE@mail.nysed.gov.

* See Chapter 57 of the Laws of 2012 for the text of the bill.

The changes are posted on the Internet at:

Education Law §3020-a Changes (Effective April 1, 2012)  =================== The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.  =======================

Disciplinary penalty imposed based, in part, the hearing officer’s reliance on an altered videotape of incident rejected

Disciplinary penalty imposed based, in part, the hearing officer’s reliance on an altered videotape of incident rejected

Principe v New York City Dept. of Educ. 94 AD3d 43

Found guilty of certain disciplinary charges, the employee appealed the termination of his employment by the New York City Department of Education. The Appellate Division granted his petition, agreeing with the holding by the Supreme Court that under the circumstances imposing the penalty of dismissal was excessive.

The Appellate Division said that it also agreed with Supreme Court’s view that “by discrediting [the teacher’s] entire testimony, the Hearing Officer failed to consider all the circumstances, including the disciplinary histories of the students involved, the context of the threatening environment in which the two incidents took place and that, at the time of the two incidents, [the teacher] was, as he testified, ‘only fulfilling [the] demands’ of his position as dean of discipline.”

Further, said the court, it appeared that the hearing officer gave “an inordinate amount of credit” to a portion of a video recording that had been altered from its original format so that it appeared frame by frame at one second intervals rather than its original format of a continuous video recorded in real time. The Appellate Division commented that this alteration to the videotape made what actually transpired during that incident unclear and equivocal.

While the Appellate Division said that it accepted the findings of the Hearing Officer's,* it agreed with Supreme Court that the evidence in this case demonstrates that the educator’s actions were not premeditated. Given all of the circumstances, including the educator’s “spotless record as a teacher for five years and his promotion to dean two years prior to the incidents at issue,” the Appellate Division decided that the penalty excessive and shocking to [its] sense of fairness, citing the Pell Doctrine [Pell v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].

Noting that “lesser sanctions are available that would deter [the teacher] from engaging in this conduct in the future, the Appellate Division remanded the matter to the Hearing Officer for the imposition of a lesser penalty consistent with its decision.**

*

** Justices Friedman and Richter dissented in a memorandum by Justice Richter,

The decision is posted on the Internet at:

.http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02560.htm

Employee’s dismissal overturned after court finds that the penalty of termination was so disproportionate as to be shocking to one's sense of fairness

Employee’s dismissal overturned after court finds that the penalty of termination was so disproportionate as to be shocking to one's sense of fairness
James v Hoosick Falls Cent. School Dist., 2012 NY Slip Op 02374, Appellate Division, Third Department

The Board of Education of the Hoosick Falls Central School District terminated Dennis James’ employment.after he was found guilty of disciplinary charges filed against him pursuant to Civil Service Law §75 flowing from his alleged involvement in an off-duty domestic dispute. The District's Superintendent of Schools, Kenneth A. Facin, became concerned about James’ continued presence at the school after he learned of the alleged incident and initiated the disciplinary action.

The Hearing Officer determined that James and his girlfriend had a physical altercation during which James’ girlfriend was injure and "considering the severity of the resultant injuries, nature of [James’] conduct, and the public backlash,” recommended that James be dismissed from his position. The Board adopted the Hearing Officer's findings and terminated James.

One of the first issues addressed by the Appellate Division was James’ argument that “the Hearing Officer erred in basing his determination upon substantial evidence rather than a preponderance of the evidence.”

The Appellate Division rejected this theory, citing Rosenthal v Hartnett, 36 NY2d 269. The court noted that “Although Civil Service Law §75 does not articulate a specific level of proof for the hearing level (a gap frequently filled by a provision of collective bargaining agreements), the substantial evidence standard that is generally applicable to administrative determinations applies to disciplinary matters involving public employees under the statute.

As to James’ contention that the Hearing Officer admitted into evidence a written statement prepared by an individual who did not appear at the hearing, the court said that §75(2) provides that "[c]ompliance with technical rules of evidence shall not be required" and it is settled that hearsay may be considered at hearings conducted under the statute.”

Finding that substantial evidence supported the Hearing Officer's determination, the Appellate Division said that it would defer to the Hearing Officer's credibility determinations and, “accepting those determinations, the record contains ample evidence of James’ actions to sustain the two charges.”

However, the court found merit in James’ assertion that the penalty was inconsistent with the Pell Doctrine,*arguing that “termination was so disproportionate as to be shocking to one's sense of fairness,” pointing out that James:

[1] had been employed by the District for 20 years without any prior incidents of misconduct;

[2] the misconduct in question occurred off premises; 

[3] the misconduct did not involve anyone associated with the school;

[4] James “did not hold a high profile job at the school;”

[5] the District pursued the disciplinary charges out of concern for the safety of the school, but it was conceded that no member of the school’s staff had indicated a concern about working with James; and

[6] there was no proof introduced indicating that the students at the school were in any danger because of James’ presence.

The Appellate Division said that “under these circumstances, termination is unduly disproportionate” and remitted the matter to the School District “for imposition of a less severe penalty.”

* Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02374.htm

===================

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

 =======================

Payments for vacation credit upon retirement or resignation must be authorized by formal resolution by the governing body

Payments for vacation credit upon retirement or resignation must be authorized by formal resolution by the governing body

Decisions of the Commissioner of Education, Decision #11173

A board of education resolution appointing its school superintendent included a clause stating that the superintendent would "continue to receive and be eligible for all contractual benefits accrued over his years of service with the District."

When the superintendent resigned he expected to be paid for his accumulated but unused vacation credit and had submitted his resignation "subject to (his) vacation pay." The Commissioner of Education, however, ruled that this was not sufficient to overcome the need for the type of formal resolution required by §92 of the General Municipal Law.*

After holding that paying prior administrators for unused vacation could not be relied upon to support such a payment, the Commissioner concluded that the Board's resolution appointing the superintendent "is not the type of resolution contemplated by §92" as is was not "an act clearly declarative of the will of the Board...to pay any administrator cash in lieu of unused vacation." The Commissioner also ruled that the superintendent had not proved the existence of an "oral contract" to provide for such a payment.

Typically §92 is strictly construed as it expresses a statutory exception to the prohibition against gifts of public monies set out in Article VII, §7 of the State Constitution. Accordingly, the resolution authorizing expenditure such as those to "liquidate" vacation credits**must be clear and unequivocal.

Where a contract, such as one resulting from Taylor Law negotiations, provides for such payments, the prevailing view is that such payments are lawful.

* §92.1 of the General Municipal Law, in pertinent part, provides that “Notwithstanding any other provision of law, any such governing board or mayor may also in like manner provide for cash payment of the monetary value of accumulated and unused vacation time or time allowances granted in lieu of overtime compensation standing to the credit of its officers and employees at the time of their separation from the service, or in case of death in service, to be paid to their beneficiaries.”

** N.B. §92.1, however, is silent with respect to the liquidation of “unused sick leave” upon separation from service or in the case of death while in service.