Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"

Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"

Appeal of C.Z. from actions of the Board of Education of the Jordan-Elbridge Central School District, et. al.

Decisions of the Commissioner of Education, Decision No. 16,450

In this appeal to the Commissioner of Education C.Z. contended that certain alleged actions by school board members were “inappropriate and/or in violation of the Education Law and the Educational Rights and Privacy Act [FERPA].”  C.Z asked the Commissioner to issue an order admonishing the board members.

The Commissioner, stating that he lacked jurisdiction to consider FERPA claims, dismissed this branch of C.Z.’s appeal. The Commissioner explained that “The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]).

The Commissioner also dismissed that portion of C.Z. appeal that, in the words of the Commissioner, “attempts to allege violations of the Open Meetings Law through her claims that [the school board] declined to allow her to attend and to discuss certain issues at an executive session." The Commissioner noted that the §107 of the Public Officer Law “vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”

As to the redress sought, admonition of certain members of the school board, The Commissioner noted that it is “well established” that the Commissioner of Education does not have  members any authority to censure or reprimand a board member.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16450.html

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings

Correction officer found guilty of improper use of force

Recommended penalty: 15-day suspension without pay

A correction officer was charged with improper use of force against two inmates. That officer and his partner were also charged with making false reports and failing to obtain medical attention for an injured inmate.

Administrative Law Judge John B. Spooner found petitioner proved that the first officer used improper force against one of the inmates but he recommended dismissal of the rest of the charges. The recommended penalty was a 15-day suspension, given the inconclusive proof as to the precise extent of the force used.

This was the first OATH case involving videoconference testimony by an inmate from a City jail.

The decision is posted on the Internet at:

Dep't of Correction v. Wingate (in PDF), OATH Index Nos. 1490/12 & 1491/12

Employee found guilty of being intoxicated while on duty

Recommended penalty: termination

An office worker was charged with being intoxicated at work on four occasions during a one-month period.

Administrative Law Judge Kevin F. Casey sustained two of the charges. He rejected as implausible respondent’s claim that his medications and illnesses cause a variety of symptoms, including dizziness and vomiting, which give people the mistaken impression that he was intoxicated, in view of proof that respondent was diagnosed with acute alcohol intoxication at a hospital on one of the charged dates.

Given respondent’s prior disciplinary record -- which included a 40-day suspension for similar, recent misconduct -- and in the absence of evidence of rehabilitation, ALJ Casey recommended termination of respondent’s employment.

The decision is posted on the Internet at:

Human Resources Admin. v. Anonymous (in PDF), OATH Index No. 212/13

Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Supreme Court denied the petition of an individual seeking to annul the appointing authority’s:

[a] terminating him from his from his position during the required probationary period: and

[b] declining to reinstate the individual to his former “permanent position.”

According to the decision, the individual, then serving as a “Computer Aide,” was appointed to the position of “Computer Science Technician (CST), Level II” from an open-competitive eligible list.

The Appellate Division vacated the Supreme Court’s ruling and remanded the matter for a determination if the individual “effectively resigned* from his permanent position.”

The court explained that while an individual appointed from an open-competitive eligible list to the position from which he or she had been terminated during the probationary period would not be entitled to reinstatement to his or her prior, permanent position “if he voluntarily accepted his appointment to the new position, which would constitute an effective resignation from his prior, permanent position,” in this instance there was a triable issue of fact as to whether the individual “voluntarily accepted the appointment to the subsequent, probationary position.” Accordingly, the Appellate Division remanded the matter to Supreme Court for its further consideration.

A corollary issue that the Supreme Court may be required to explore: was the individual “promoted” to his or her new position within the meaning of the Civil Service Law? §63.1 of the Civil Service Law provides, in pertinent part, as follows:

When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.

Typically “promotion” is the word of art used to describe the advancement of an individual from a lower grade position to a higher-grade position in the “line of promotion.” In the absence or exhaustion of a “promotion list,” an appropriate “open-competitive eligible list” may be used to fill the vacancy.

Indeed, in situations where a promotion examination is not expected to produce sufficient eligibles to fill all the vacancies, actual and anticipated, during the life of the eligible list, an open-competitive examination may be authorized to be held simultaneously with the promotion examination, with the resulting open-competitive eligible list to be certified upon the exhaustion of the promotion eligible list.

In Bethel v McGrath-McKechnie, 95 N.Y2d 7, the Court of Appeals ruled that an individual who accepts an original appointment to a position from an open-competitive examination effectively resigned from his or her former position. The Court of Appeals decided that Bethel had not been promoted and thus Section 63(1) did not apply to her situation.

Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said that Section 63 provides job security to a permanent employee who is transferred or promoted to a position in which he or she is required to serve, but does not satisfactorily complete, a probationary period.

* Typically a resignation from a position is required to be in writing to be effective.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00397.htm

If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required

If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required

Kaslow v City of New York, 2013 NY Slip Op 00210, Appellate Division, Second Department

In this CPLR Article 78 proceeding David Kaslow asked Supreme Court to review a determination of the New York City Employees' Retirement System [NYCERS]. 

Kaslow had retired from employment with the New York City Department of Correction [DOC]. NYCERS however, had denied his request for service credit for his prior employment with the New York City Department of Environmental Protection [DEP] for purposes of determining his retirement allowance.

While Kaslow had contended that he was entitled to service credit for his prior employment with DEP, NYCERS said that in accordance with Retirement and Social Security Law §504-a, Kaslow, as a member of the Tier 3 CO-20 retirement plan, was not entitled to service credit for his civilian service with DEP prior to his employment with DOC.

Supreme Court granted Kaslow’s petition, holding that his service with the City's Department of Environmental Protection should have been credited. NYCERS and the City of New York appealed the court’s ruling.

The Appellate Division, noting that "An agency's interpretation of the statutes and regulations that it administers must be given great weight and judicial deference, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute,'" said that in the event the question is one of pure legal interpretation of statutory terms, “deference to the agency is not required."

In this instance, said the court, NYCERS's interpretation of the term "credited service," was irrational, unreasonable, and inconsistent with the other applicable statutes governing the retirement benefits of officers employed with the DOC.

Accordingly, and under the circumstances presented in this instance, the Appellate Division concluded that for purposes of determining Kaslow retirement allowance upon his retirement from DOC, his creditable civilian service with DEP should have been included in NYCERS's calculation of his benefits, and, thus, Supreme Court had properly granted Kaslow’s petition.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00210.htm

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings 

Firefighter admitted using cocaine

Penalty recommended: termination and forfeiture of the vesting his pension recommended

A firefighter who tested positive for cocaine admitted to using the drug but argued that he should be permitted to vest his pension and retire when eligible to do so.

Administrative Law Judge Alessandra F. Zorgniotti noted that pursuant to the Department’s “zero tolerance policy,” termination of employment is the usual penalty for a first time positive test, in the absence of exacerbating or extenuating circumstances.

Judge Zorgniotti found that respondent failed to present sufficient evidence in mitigation to justify a lesser penalty and recommended termination of the individual’s employment, without an allowance that his pension be permitted to vest fully.

The decision is posted on the Internet at:

Fire Dep’t v. Arcello (in PDF), OATH Index No. 109/13