Reinstated administrator entitled to back salary and benefits from the date of his termination until the date of his reassignment by the employer

Reinstated administrator entitled to back salary and benefits from the date of his termination until the date of his reassignment by the employer

Appeal of Ford from actions of the Board of Education of the City School District of the City of Troy, et. al., Decisions of the Commissioner of Education, Decision #16,443

The Commissioner sustained Tracy Ford’s challenge to his termination by the City School District of the City of Troy [Board] in part.

Ford, a certified School Administrator and Supervisor and School District Leader, was appointed to a position in the K-12 administrative tenure area as an Elementary School Principal effective September 17, 2007. This appointment was subject to Ford’s satisfactory completion of a probationary period and he was subsequently advised that he had been granted tenure in the title effective September 1, 2010.

On May 20, 2011, the Board notified Ford that his position was abolished and as he was the least senior employee in his tenure area he would be terminated effective June 30, 2011. Ford appealed, contending that he was improperly tenured in the elementary principal tenure area instead of the K-12 administrator tenure area.  Accordingly, Ford argued, he was improperly terminated because he was not the least senior administrator in the K-12 administrative tenure area or, alternatively, that he was entitled to fill a vacant position in the K-12 administrative tenure area when his position was abolished. 

The Board then adopted a resolution rescinding its action terminating Ford and “clarified” his tenure area as Administrator K-12. It then reassigned Ford to School 16, effective August 26, 2011.

In rebuttal to Ford’s seeking to have the Board’s actions excessing him declared null and void and reinstatement to an administrative position within the district, with full seniority rights, benefits and pay retroactive to June 30, 2011, the district argued that Ford failed to meet his burden of demonstrating a clear legal right to the relief he requested and that the petition must be dismissed as moot and untimely.

In support of its argument, the District pointed to its September 7, 2011 board resolution rescinded its action terminating Ford and his reinstatement to a principal position in the K-12 administrative tenure area.

Noting that an appeal will 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,” the Commissioner said that to the extent that Ford challenged his termination in June 2011 or requests reinstatement to a position in the K-12 administrative tenure area, these claims are moot.”

However, said the Commissioner, Ford’s request for relief also included seniority credit, benefits and pay retroactive to June 30, 2011, contending that he had not been paid and/or received benefits and/or accrued seniority credit from June 30, 2011 through August 26, 2011. This aspect of Ford’s appeal was not rendered moot by the Board’s action.

The Commissioner said that the Board resolution clearly rescinded its action to terminate Ford in June 2011. However, said the Commissioner, as the Board continued Ford’s employment as an elementary principal in the district from June 30, 2011 until he was reassigned to School 16 on August 26, 2011, he is therefore entitled to receive salary, benefits and any seniority credits accrued during this time period.

Under the circumstances the Commissioner declined to dismiss this aspect of Ford’s claim as untimely and ordered the Board to reinstate him with back pay, benefits and seniority credit retroactive to June 30, 2011.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16443.html

Resolving the layoff rights of a teacher granted tenure in an unauthorized tenure area

Resolving the layoff rights of a teacher granted tenure in an unauthorized tenure area
Thorenz v Board of Educ. of The Monticello Cent. Sch. Dist., 2012 NY Slip Op 09135, Appellate Division, Third Department

A teacher was granted tenure by the School Board in the special subject tenure area "In-School Suspension" and continued serving in that capacity until 2010 when she was notified that “the Board determined that it was ‘necessary to eliminate a teaching position in the In-School Suspension tenure area’ and that she was being terminated based upon her seniority status within that tenure area”

However, "In-School Suspension" was not an authorized special subject tenure area.

The teacher sued the school district contending that her separation was unlawful and that she should be reinstated to a position teaching in the physical education and recreation tenure area, an area in which she held a teaching certificate. 

Supreme Court granted the School Board's motion for summary judgment in part, dismissing the petition but as the teacher had been appointed by the Board to a nonexistent tenure area, Supreme Court then remitted the matter to the Board and directed it to reclassify the teacher "into an existing tenure area position.”

Both the teacher and the School Board appealed the decision.

Affirming the Supreme Court’s ruling, the Appellate Division said that the parties conceded that the teacher did not "devote a substantial portion of [her] time to instruction in . . . physical education" and therefore she cannot be deemed to have served in that special subject tenure area unless she falls within the exception created by 8 NYCRR 30-1.2 (b) (2).

8 NYCRR 30-1.2 (b) (2) provides that a professional educator who was appointed to an unauthorized tenure area prior to May 1, 2009 will be deemed to have been appointed to the tenure area for which the teacher holds a certification if the teacher was appointed for the performance of duties in instructional support services. However, the teacher’s duties, as self-described and as described in her teacher evaluations and by her principal, centered exclusively upon supervising students assigned to in-school suspension and working with other staff members concerning those students.

Thus, concluded the Appellate Division, the Board was correct in holding that the duties performed by the educator did not qualify as "instructional support services" within the meaning of the regulation and she was not legally entitled to an appointment to a position in the physical education and recreation tenure area.

However, said the court, it agreed with Supreme Court that, under the circumstances of this case, remittal is required so that the Board can reclassify the teacher into an accepted tenure area and thereafter determine seniority pursuant to Education Law §2510(2).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09135.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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Employees “demoted” to a lower grade position as a result of their exercise of their “displacement rights” in a layoff situation are not entitled to a “pre-demotion” hearing

Employees “demoted” to a lower grade position as a result of their exercise of their “displacement   rights” in a layoff situation are not entitled to a “pre-demotion” hearing

Yackel v City of Rochester, 2012 NY Slip Op 09253, Appellate Division, Fourth Department

The Rochester Firefighters Association file an Article 78 petition challenging an administrative order issued by the Fire Chief of the City of Rochester Fire Department that resulted in the "demotion" of a number of Fire Department battalion chiefs to the rank of captain.

These demotions were the “fall-out” resulting from the abolition of battalion chief positions* as part of budget cuts made by the City of Rochester and the decision of the individual battalion chiefs to exercise their "displacement rights" pursuant to Civil Service Law §80.6.

The Appellate Division said that Supreme Court “properly granted [the City’s] motion to dismiss the Association’s petition, rejecting the Association’s argument that the Fire Chief acted in excess of his authority as the appointing authority for City of Rochester Fire Department when he issued the challenged administrative order.

The court explained that although §8B-4 of the City Charter provided that that "members of the Fire Department . . . hold their respective offices during good behavior or until by age or disease they become personally incapacitated to discharge their duties" did not truncate the "undisputed management prerogative of the [City], as an employer, to abolish positions in the competitive class civil service in the interest of economy."**

The Appellate Division also affirmed Supreme Court’s rejection of the Association’s contention that, as a matter of procedural due process, the individual Battalion Chiefs that exercised their “displacement rights” to an appointment is a lower grade position were entitled to a hearing prior to their "demotions" commenting that the Chief’s action was not based upon any question involving the conduct or the competency of the Battalion Chiefs involved but, rather, was based on their seniority and the mandates of Civil Service Law §§80 and 81.
 

* There must be an actual and lawful abolishment of a position in order to lawfully remove an employee from his or her position pursuant to §§80 or 80-a (1976 Opinions of the Attorney General 7; see, also, O'Reilly v Nedelka, 212 A.D.2d 714).

** CSL §80 controls with respect to the rights of employees in the competitive class in the event of a layoff; §80-a controls with respect to employees in State service in positions in the non-competitive class. See §45 of the Civil Service Law with respect to determining seniority for the purposes of a layoff involving employees continued in public service following a “take-over” of a private institution or enterprise by a government entity.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09253.htm

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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Selected reports and information posted by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information posted by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of December 31, 2012 – January 6, 2013 [Click on the caption to access the full report]

DiNapoli Seeks Disclosure Of Political Spending At Qualcomm

New York State Comptroller Thomas P. DiNapoli announced Thursday that the New York State Common Retirement Fund has filed suitin a Delaware court against Qualcomm Inc. for the right to inspect the company’s books and records to determine how shareholder funds are being spent for political purposes.

DiNapoli: Local Governments Continue to Face Significant Fiscal Challenges

Many local governments have nearly exhausted their resources in an effort to avoid severe fiscal stress, according to an annual reportreleased last week by State Comptroller Thomas P. DiNapoli.

DiNapoli: Snowmobile Association Treasurer Misdirected Grooming Funds

The Herkimer County Snowmobile Association Treasurer falsified documentation and improperly used his dual authority as the association’s treasurer and president of a trail maintenance entity to redirect funds from one snowmobile club to his own, according to an audit. released Wednesday by State Comptroller Thomas P. DiNapoli. The findings were referred to the Herkimer County District Attorney’s Office.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli last week announced his office completed the audits of:

the SUNY at New Paltz;

the Department of Economic Development;

the Office of General Services; and,

the New York State Health Insurance Program.

An entity making an administrative decision should not be permitted to create or rely upon reasons for its denial not stated at the time of the denial should the decision be challenged

An entity making an administrative decision should not be permitted to create or rely upon reasons for its denial not stated at the time of the denial should the decision be challenged

White v County of Sullivan, 2012 NY Slip Op 09131, Appellate Division, Third Department

Supreme Court granted Earl White’s CPLR Article 78 to partially vacate Sullivan County’s determination denying White benefits pursuant to General Municipal Law §207-c.

White, a correction officer with the Sullivan County Sheriffs’ Department, was injured in the performance of his duties and filed for, and received, disability benefits pursuant to General Municipal Law §207-c. White’s physician subsequently cleared him to return to work in a light duty capacity, and White began working full time as a control room officer.

Some time later White again suffered an injured in the course of his employment and again filed for benefits pursuant to General Municipal Law §207-c. White’s superior at the Sheriff's Department approached him with a disability retirement application, but White refused to sign it or related medical releases.*

The County denied White's application for General Municipal Law §207-c benefits due to a lack of medical evidence. In response to White’s petition challenging the County’s decision, Supreme Court, concluding that the county's determination was arbitrary and capricious, remanded the matter and directed the County to hold a hearing.

The Hearing Officer determined, among other things, that White had established his eligibility to receive §207-c benefits beginning at the time of his injury but that he was able to resume light duty work. The Hearing Officer also found that White's eligibility for benefits ended effective July 24, 2009 due to his refusal to cooperate with County's attempts to file retirement paperwork on his behalf.**The County adopted the Hearing Officer's determination.

The Sheriff, however, preferred charges of misconduct against White pursuant to Civil Service Law §75, alleging that his refusal to sign retirement forms constituted misconduct. The disciplinary hearing officer found White guilty and the Sheriff adopted the hearing officer’s findings, imposing the penalty of termination from his position effective in January 2011.

White then initiated this action, challenging [1] the determination one denying him benefits pursuant to General Municipal Law §207-c and [2] the Sheriff’s decision finding him guilty of misconduct and terminating his employment. Supreme Court partially granted White’s petition, vacating the County’s determination that White was ineligible for benefits after July 2009 and vacated Sheriff’s decision terminating White from his position.***

As to that part of White’s appeal concerning the County’s termination of his §207-c benefits, the Appellate Division noted that Sullivan County Local Law No. 1 (1989) vested in the County’s “insurance administrator the exclusive authority’ to make determinations of eligibility for General Municipal Law §207-c benefits for Sheriff's Department staff.

Noting that both State Law and Sullivan County Local Law provided that the payment of §207-c salary benefits "shall be discontinued" for any officer "who is permanently disabled" as a result of the injury occurring in the performance of his or her duties if that officer is granted a disability retirement and in the event such an officer does not apply for a disability retirement, “the head of the police force may apply on behalf of the officer,” citing General Municipal Law § 207-c [2] and the relevant collective bargaining agreement with White's union, governing its procedure for compliance with General Municipal Law §207-c” pursuant to Local Law No. 1.

Local Law No. 1, provides that in the event the County’s insurance administrator determines that an officer is permanently disabled, the administrator "shall" notify [the County's] personnel officer, who then "shall request that the [officer] make application for" a disability retirement (Local Law No. 1 § 210). "If application for such retirement is not made by the [officer], application therefor[] may be made by the Sheriff or [p]ersonnel [o]fficer," again citing Local Law No. 1.

The court then explained that initially the County’s denied White benefits based on a lack of medical proof, without mentioning petitioner's refusal to sign retirement documents.

The Hearing Officer found that medical proof did exist, rejecting the basis relied upon by the County for its denial of benefits. Noting that the county “is not now challenging that finding,” said that the County “should not be permitted to create or rely upon different reasons for the denial that were not raised and stated at the time of that denial” and  "judicial review of an administrative determination is limited to the grounds presented by the agency at the time of its determination."

Further, said the court, even were County permitted to rely on White's refusal to sign retirement documents despite not having included that reason in its denial letter, the County concedes that its personnel officer never requested White to apply for disability retirement. Accordingly, the Appellate Division granted that portion of White’s petition seeking the annulment of the County’s determination finding White ineligible for General Municipal Law §207-c benefits as of July 2009.

The Appellate Division then observed that White was entitled to §207-c benefits beginning at the time of his injury in June 2009 but that “No end period for those benefits has been established, as that may depend on the outcome of the remittal regarding the Sheriff's termination of [White’s] employment.”

* See  GML §207-c.2.

** The County contended that Retirement and Social Security Law §605 provides an alternate basis upon which it could apply for retirement benefits on White's behalf, but it did not make an application pursuant to that section. See, also, GML §207-c.2.

*** The Appellate Division, noting that the Sheriff was not named as a respondent in the action before Supreme Count with respect to White’s dismissal from his position, said that the Sheriff was a necessary party and “join the Sheriff as a respondent” in the action. The Sheriff, however, was not a necessary party with respect to that portion of White’s action challenging the County’s discontinuing his §207-c benefits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09131.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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