Some procedural requirements to keep in mind when filing an appeal to the Commissioner of Education

Some procedural requirements to keep in mind when filing an appeal to the Commissioner of Education

Appeal to the Commissioner of Education, Decision No. 16,455

According to the decision, the petition submitted in this appeal to the Commissioner of Education consisted of a request for an investigation. Included with the petition were various exhibits such as “a collection of letters, emails, Facebook postings, petitions, and questions presented to the [school] board.”

Initially the Commissioner noted that a petition must contain “a clear and concise statement of the petitioner’s claim showing that the petitioner is entitled to relief, and shall further contain a demand for the relief to which the petitioner deems himself [or herself] entitled,” citing 8 NYCRR §275.10.

Further, cautioned the Commissioner, the statement must be sufficiently clear to advise a respondent of the nature of petitioner’s claim and of the specific act or acts complained of. In the event a petition fails to state a comprehensible claim and fails to identify the specific remedy sought, it will be dismissed

In the event a petitioner is not represented by counsel the Commissioner noted that “a liberal interpretation of this regulation is appropriate absent prejudice to the opposing party.

The Commissioner however dismissed this appeal as untimely. Although the petitioner conceded that she had not filed the appeal within 30 days from the making of the decision or the performance of the act complained of, she asked the Commissioner to excuse her delay contending that “she could not gather documents needed to file her appeal.”

While a delay may be excused by the Commissioner “for good cause shown,” in this instance the Commissioner said that he found “no basis to excuse petitioner’s delay” and ruled that the appeal must be dismissed as untimely.

Commenting on the relief sought, the Commissioner commented that the only relief the petitioner sought was an investigation into the school board's and certain administrators' alleged “inappropriate decisions, actions, and lack of leadership and accountability....”  

However, an appeal to the Commissioner is appellate in nature and does not provide for investigations. Accordingly it appears that even had this appeal been timely filed, it would have been dismissed because, in the words of the Commissioner, “the sole relief sought by petitioner is beyond the authority of the Commissioner to grant."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16455.html

Employee’s lack of remorse concerning activities leading to disciplinary action does not always mandate imposing termination as the penalty

Employee’s lack of remorse concerning activities leading to disciplinary action does not always mandate imposing termination as the penalty

City of New York v Organization of Staff Analysts, 2013 NY Slip Op 00806, Appellate Division, First Department

The Appellate Division affirmed Supreme Court’s denial of the City of New York’s petition to vacate an arbitrator’s award imposing a penalty of a one-year suspension without pay rather than termination of the employee.

The employee had been charged with accessing the personnel files of two co-workers.

The Appellate Division said that although and arbitrator’s award “can be overturned where it is directly contrary to a settled public policy,” citing UFT Local 2 v Board of Education, 1 NY3d 72. The court said that imposing a one-year suspension without pay rather than termination did not violate “the policy of protecting confidential information.”

Further, explained the court, the imposition of a penalty short of termination did not render the award irrational, rejecting the City’s argument that there was a possibility that the employee “will re-offend, especially where there has been no criminal conviction and there is a clear, substantial penalty imposed to deter such future conduct.”

The City had cited Binghamton City School District, 46 AD3d 1042, in support of its contention that termination was the appropriate penalty in this instance. In Binghamton the Appellate Division held that a “school teacher's lack of remorse or understanding of moral aspect of inappropriate relationship with teen student required termination until counseling or other remedial steps taken.”

Although the Appellate Division noted “the employee's lack of remorse,” it held that although “relevant to the risk of recidivism,” in this instance such lack of remorse  “did not rise to the level in the cases relied upon by the City.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00806.htm

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

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

Issued during the week ending February 10, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Reaches Agreement with Cabot Oil and Gas to Disclose Policies on Hydraulic Fracturing Fluid

New York State Comptroller Thomas P. DiNapoli announced that Cabot Oil and Gas Corporation has agreed to publicly disclose its policy and procedures for eliminating or minimizing the use of toxic substances in its hydraulic fracturing fluids. As a result of the agreement, DiNapoli has withdrawn his shareholder proposal submitted for the company’s 2013 proxy statement calling for a report on the use of these substances in Cabot’s shale energy operations.

DiNapoli: Special Education Providers Charged Taxpayers for Excessive Salaries and Personal Items

The owners of two Manhattan–based special education providers claimed more than $500,000 in expenses to which they were not entitled, including extra money for their salaries, vehicle costs and personal expenses, as well as bonuses for staff that could not be justified, according to two audits released Thursday by New York State Comptroller Thomas P. DiNapoli. The audit findings are being considered for referral to law enforcement.

DiNapoli: Court Allows Securities Litigation Class Action Against BP To Move Forward

New York State Comptroller Thomas P. DiNapoli commended a Houston federal judge’s decision to allow a securities class action case against BP plc to go forward. “We are pleased that the New York State Common Retirement Fund’s claims on behalf of BP’s investors will proceed,” DiNapoli said. “Shareholders saw their investments plummet in value following the Deepwater Horizon catastrophe. Now information has come to light that BP was wholly unprepared to respond to the risks of its deep sea operations and incapable of adequately reacting when something went wrong.”

DiNapoli Receives Hubert H. Humphrey Humanitarian Award

State Comptroller Thomas P. DiNapoli received the Hubert H. Humphrey Humanitarian Award in recognition of his lifetime of public service to the state of New York and its citizens. The award was presented at the United Federation of Teachers’ annual Greater Metropolitan New York Social Studies Conference at which DiNapoli delivered the luncheon keynote address.

DiNapoli: Gloversville Faces Fiscal Challenges

Long–term population loss continues to limit economic growth in the city of Gloversville, according to a report issued by State Comptroller Thomas P. DiNapoli. City officials, however, have established critical rainy day funds by controlling the growth in spending, which helped lead to a recent upgrade to the city’s credit rating. The report is the latest in a series of fiscal profiles on cities across the state released by the Comptroller’s office.

Comptroller DiNapoli Releases Municipal Audits

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

the Town of Bangor;

the Town of Black Brook;

the Town of Florida;

the Jericho Fire District;

the City of Mechanicville;

the Town of Olive; and,

the Watertown Housing Authority.

Evidence that the employee was clearly aware of the employer’s policy defeats argument that the policy was not set out “in writing”

Evidence that the employee was clearly aware of the employer’s policy defeats argument that the policy was not set out “in writing”

Matter of Osborne (Commissioner of Labor), 2013 NY Slip Op 00370, Appellate Division, Third Department

 The Unemployment Insurance Appeal Board ruled that claimant was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

The individual had been counseled by his supervisor about having inappropriate relationships in the workplace. Notwithstanding this, he became involved in a relationship and was issued a written disciplinary warning notice at that time, which stated that the relationship was a clear violation of the standards that he was counseled on earlier and that any further infractions in this regard would result in his termination.

Although the individual apparently briefly ended the relationship, it was subsequently resumed and his employment was terminated.

The Appellate Division affirmed the Unemployment Insurance Appeal Board decision disqualifying the individual for unemployment insurance benefits, explaining that "A knowing violation of an employer's established policy or reasonable request may constitute disqualifying misconduct, particularly where, as here, the claimant has received prior warnings about similar behavior."

While the court noted that the employer’s policy in question was not in writing, the individual was clearly aware of the policy as he signed a warning letter affirming his understanding of it.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00370.htm

Employee found guilty of uploading confidential medical information viewed while at work on Facebook terminated

Employee found guilty of uploading confidential medical information viewed while at work on Facebook terminated

The Appellate Division affirmed the dismissal of an Emergency Medical Services Supervisor by the Commissioner of the New York City Fire Department for misconduct, ruling that the Commissioner’s determination that the Supervisor was guilty of violating departmental regulations was supported by substantial evidence.

The EMS Supervisor had admitted photographing a computer terminal’s screen showing confidential and privileged information received during a 911 call concerning a medical emergency, as well as the 911 caller's name, address and telephone number, and then uploading the image to his Facebook account, with the caption "[c]an't make this up."

The decision states that approximately 460 of the Supervior’s Facebook "friends" had access to the posting.

Further, said the Appellate Division, at the time of the posting the EMS Supervisor understood that divulging such patient information was in violation of departmental rules, as well as a serious breach of trust.

Considering the “serious nature” of the Supervisor’s misconduct, the court said that the penalty imposed, dismissal,  did not shock its sense of fairness, citing Kelly v Safir, 96 NY2d 32 and  Berenhaus v Ward, 70 NY2d 436.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00437.htm