An appointing authority has broad discretion in determining if an omission in the probationer’s application form is material to his or her qualifications for the position

An appointing authority has broad discretion in determining if an omission in the probationer’s application form is material to his or her qualifications for the position

The Appellate Division unanimously affirmed a Supreme Court ruling that dismissed a probationary police officer’s challenge to his termination during his probationary period.

The court said that the appointing authority was “entitled to discharge a probationary police officer ‘for almost any reason, or for no reason at all' as long as it is not in bad faith or for an improper or impermissible reason," citing Duncan v Kelly, 9 NY3d 1024.

The probationer alleged that he was terminated because of his “inadvertent” failure to disclose the psychological treatment he underwent at the age of six. The Appellate Division held that even if the probationer was "ignorant or unaware of or oblivious to his personal history,” the appointing authority was entitled, given the broad discretion vested in it, to deem "such omissions a[s] material to his qualifications."

Citing Talamo v Murphy, 38 NY2d 637, the decision notes that even assuming the truth of the probationer's allegations, his petition failed to allege any facts that would, if proven to be true, constituted a violation of "statute or policies established by decisional law."

As the probationer failed to allege facts supporting a conclusion that his termination was in bad faith, the Appellate Division ruled that “Given this failure, a hearing to resolve the truth of the facts alleged is unnecessary.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03516.htm

Reasons set out in the administrative determination held to trump alternative reasons advanced in the course of litigation

Reasons set out in the administrative determination held to trump alternative reasons advanced in the course of litigation

A candidate for appointment as a firefighter with the City of Buffalo challenged his disqualification for the appointment on the basis of his failing to meet the residence requirement set out in Rule 10 of the City's Classified Civil Service Rules.

Rule 10 requires the applicant to maintain residence for 90 days prior to the date of application or the date of appointment, as the case may be.*

In contrast, the examination announcement stated that applicants for the firefighter position must maintain continuous residence within the City from the date of application to the date of appointment,

Following oral argument, Supreme Court ruled that the City's determination that the candidate failed to comply with Rule 10 was arbitrary and capricious.

The Appellate Division sustained the lower courts ruling.

Noting that the City relied exclusively on Rule 10 of its Classified Civil Service Rules to disqualify the candidate for the firefighter appointment, the court explained that “Although counsel for the City referred during oral argument in Supreme Court to the more onerous residency requirement set forth in the examination announcement, the written notice of disqualification sent to petitioner cited only Rule 10, and the court's decision was based solely on the applicability of Rule 10.”

Further, said the Appellate Division, in its brief on appeal the City referred to Rule 10 and not the residency requirements of the examination announcement. Thus, as Supreme Court determined, the issue presented is whether the City's determination that the candidate failed to comply with Rule 10 was arbitrary and capricious.

Although the examination announcement stated that applicants must maintain continuous residence within the City from the date of application to the date of appointment, as noted the City did not rely on the notice set forth in the examination announcement to disqualify candidate. Thus the Appellate Division concluded that the City's determination to disqualify the applicant based on his purported failure to comply with Rule 10 was arbitrary and capricious.

* There was no dispute that the candidate was a City resident when he applied for the firefighter position and that he had been a City resident for at least 90 days without interruption prior to the date of his application.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_03346.htm

“New New York Education Reform Commission” established by Governor Cuomo

“New New York Education Reform Commission” established by Governor Cuomo

Governor Andrew M. Cuomo has established the New New York Education Reform Commission, bringing together nationally recognized education, community, and business leaders to recommend reforms to the state's education system in order to improve performance in the classroom so that all of New York's students are fully prepared for their futures. Richard (Dick) Parsons, Retired Chairman, Citigroup will serve as the Chair of the New NY Education Reform Commission

The Executive Order creating the Commission includes the following tasks:

1. Find ways to improve teacher recruitment and performance, including the teacher evaluation system;

2. Examine factors contributing to teacher recruitment and performance including: incentives to hire and retain high-quality teachers; improvements in the teacher evaluation system to ensure New York is implementing one of the strongest evaluation systems in the country;

3. Use teacher evaluations for decisions regarding promotion, hiring and termination as required in the teacher evaluation law; and teacher preparation, certification and education programs to ensure that teachers are properly trained to best educate our Students;

4. Improve student achievement;

5. Examine education funding, distribution and costs;

6. Increase parent and family engagement in education;

7. Examine state and local policies to increase parent and family engagement;

8. Examine the problem of high-need and low-wealth school communities;

9. Find the best use of technology in the classroom;

10. Identify the strategies for making the best use of technology in the classroom;

11. Examine New York's education system to ensure it meets the needs of students while respecting the taxpayer;

12. Examine potential strategies to reorganize the state's education system including district

consolidation and/or shared services; and comparing models from other states to achieve efficiencies and improved education outcomes.

Membership of the Commission includes:

Richard (Dick) Parsons, Retired Chairman, Citigroup, Chair of the New NY Education Reform Commission

Randi Weingarten, President, American Federation of Teachers, AFL-CIO

Geoffrey Canada, Founder & CEO, Harlem Children's Zone

Irma Zardoya, President & CEO, NYC Leadership Academy

Elizabeth Dickey, President, Bank Street College of Education

Mary Anne Schmitt-Carey, President, Say Yes to Education

Lisa Belzberg, Founder & Chair Emeritus, PENCIL

Michael Rebell, Co-Founder & Executive Director, Campaign for Educational Equity

Karen Hawley Miles, President & Executive Director, Education Resource Strategies

José Luis Rodríguez, Founder & CEO, Hispanic Information and Telecommunications Network, Inc.

Sara Mead, Associate Partner, Bellwether Education Partners

Eduardo Martí, Vice Chancellor of Community Colleges, CUNY

Thomas Kane, Professor of Education & Economics, Harvard Graduate School of Education

Jean Desravines,CEO, New Leaders

Michael Horn, Executive Director & Co-Founder, InnoSight Institute

Chancellor Nancy Zimpher, Chancellor, SUNY

Chancellor Matthew Goldstein, Chancellor, CUNY

John B. King, Jr., Commissioner, New York State Education Department

Senator John Flanagan, Chair, Senate Education Committee

Assembly Member Cathy Nolan, Chair, Assembly Education Committee

The Commission expected to submit preliminary recommendations to the Governor by December 1, 2012.

The Deputy Secretary for Education, the Assistant Deputy Secretary for Education, and the Assistant Deputy Secretary for Higher Education to the Governor.will serve as staff to the Commission.

The text of the Governor’s announcement is posted on the Internet at:

http://d2srrmjar534jf.cloudfront.net/6/c0/9/3828/press_rls.pdf

Filing an administrative appeal does not extend or toll the statute of limitations for filing a timely Article 78 petition

Filing an administrative appeal does not extend or toll the statute of limitations for filing a timely Article 78 petition

A former teacher asked Supreme Court to annul the determination of the New York City Department of Education (DOE) that terminated her employment.

The teacher had earlier allowed her teaching license to lapse and she was removed from payroll. She was subsequently advised to “secure another teaching position” and was to serve as a probationary employee.

Appointed as a probationary employee, she was found guilty of misconduct by the Special Commissioner of Investigation for the New York City School District and notified that her services as a probationary employee would be terminated and placed on the “Ineligible/lnquiry list due to inappropriate conduct.”

In response to her administrative appeal the teacher was ultimately advised of the decision to reaffirm the underlying decision to terminate her employment and the termination of her DOE license.

Supreme Court dismissed the teacher’s petition because she failed to file a timely notice of claim in accordance with Education Law §3813(1).

Although the teacher conceded that she had not filed the Notice of Claim within three

months of the termination of her probationary employment, she contented that it was unnecessary for her to do so. Justice Mills disagreed, holding that she was required to file the notice of claim within three months of her termination.

Turning to another procedural matter, Supreme Court held that the teacher’s Article 78 challenge to the termination of her probationary employment is also time-barred, having been filed some 18 months after she was terminated from her probationary appointment.

Pointing out that an Article 78 proceeding must be commenced “within four months after the determination to be reviewed becomes final and binding on the petitioner,” the court said that “An agency determination becomes final and binding when the aggrieved party received actual notice of  the determination” and is neither extended nor tolled by the individual’s seeking administrative relief.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2012/2012_31102.pdf

Individuals employed by a private entity under contract to operate a charter school are “public employees” for the purposes of the Taylor Law

Individuals employed by a private entity under contract to operate a charter school are “public employees” for the purposes of the Taylor Law

Buffalo United Charter School ("BUCS") and Brooklyn Excelsior Charter School ("BECS") were formed under Education Law Article 56, (the "Charter Schools Act", together with National Heritage Academies, Inc. (NHA) challenged PERB’s rulings regarding its jurisdiction over the employees providing services to these charter schools.

The Council of School of Supervisors and Administrators, Local 1, AFSA ("CSA") had petitioned PERB for certification as the collective bargaining representative for a unit of unrepresented assistant principals at BECS, while NYSUT/AFT, AFL-CIO (NYSUT) had petitioned PERB for certification as the collective bargaining representative of a unit of unrepresented instruction employees at BUCS.

In response to CSA’s a petition seeking to be certified as the collective bargaining representative of all assistant principals working for BECS, BECS and NHA filed an application with PERB seeking to have the assistant principals designated as "managerial" or "confidential" employees as those terms are defined in Civil Service Law §201(7)(a).

BUCS and BECS then advanced the theory that that PERB was prevented by its own joint public-private employment doctrine* from asserting jurisdiction over the cases and the employees at issue in view of the fact that both entities had contracts with NHA, a private, for-profit corporation, to operate the schools formed by BUCS and BECS.

These agreements, they claimed, provided that NHA was responsible for employing the staffs at BUCS and BECS. In addition, both also claim that PERB lacks jurisdiction because with respect to the employees of NHA the NLRA preempted the Taylor Law.**

PERB, on the other hand, argued that it had properly concluded that the Charter Schools Act "explicitly and implicitly makes (the Taylor Law) applicable to every New York charter school" and that PERB's "joint public-private employer relationship [doctrine] … has been superceded" by the Charter Schools Act.

According to PERB, its joint public-private employment doctrine was inconsistent with the Charter Schools Act and therefore explicitly superceded by §2854(1)(a) of the Education Law. Further, PERB contended that Education Law §2854(3)(a) provides that charter schools are public schools for purposes of the Act and that because the Legislature made no provision for an exception to this mandate, there is no authority permitting application of the joint public-private employment doctrine in this instance.

PERB also asserted that its conclusion that the Charter Schools Act does not authorize the designation of "managerial" and "confidential" employees is a proper legal conclusion and urged the Court to apply a deferential standard of review to PERB's conclusion in this regard.***

Finally, PERB argued that there is no unconstitutional impairment of the Management Agreements between NHA and its charter schools because even with PERB exercising jurisdiction over the charter school employees, NHA's role under the agreements was not materially diminished or impaired.

Justice Curran said that “The critical issue in this proceeding is whether the Charter Schools Act precludes PERB from following its own jurisprudence in applying the joint public-private employment doctrine.”

Concluding that “it is impossible to construe the joint public-private employment doctrine together with application of the Taylor Law via the provisions of the Charter Schools Act,” Justice Curran ruled that “the joint public-private employment doctrine is inconsistent with and contrary to the Charter Schools Act and therefore inapplicable to the petitioners in this action.

As to the question of “preemption” by NLRB, the court ruled that “given the unsettled federal law on this issue and the well researched analysis by PERB” it could not conclude as a matter of law that PERB's decision was arbitrary or clearly contrary to the law. Accordingly, Justice Curran determined that PERB's decision on the NLRB jurisdictional issue should not be annulled.

Turning to PERB’s decision that the specific provision of the Taylor Law authorizing a public employer to designate "managerial" or "confidential" employees the court concluded that “In applying the Taylor Law to charter schools, the Legislature did not employ any language precluding the designation of ‘managerial’ or ‘confidential’ employees.”

Accordingly, Justice Curran ruled that PERB's interpretation of Education Law §2854(3)(a) to mean that all charter schools' employees are public employees and therefore not "managerial" or "confidential," except for its chief executive officer, was overbroad and not supported by the language and structure of the Charter Schools Act.

The court then dismissed the petition filed by BECS. BECS and NHA except that with respect to PERB's ruling holding that assistant principals at BECS are neither "managerial" nor "confidential" employees. As to this determination by PERB the court annulled PERB’s decision and reinstated PERB’s Administrative Law Judge’s ruling on this point.

* PERB's joint public-private employment doctrine derives from New York Public Library v PERB (37 NY2d 752 [1975] where the Court of Appeals held: "[t]he Taylor Law applies only to employment which is unequivocally or substantially public.” In situations where the employment relationship involves joint public and private employers, PERB has declined jurisdiction on the premise that it has no jurisdiction unless each of the joint employers is itself a public employer.

** BUCS and BECS also argued that PERB erroneously found that the Charter Schools Act prevents the designation of the assistant principals at issue as "managerial" or "confidential." The assistant principals, according to petitioners, are members of the executive team at these charter schools and therefore PERB wrongly denied their "managerial" or "confidential" status.

*** PERB had earlier reversed its ALJ’s designating such individuals “managerial” or “confidential.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_22113.htm