Teacher Improvement Plan [TIP] permitted in the absence of an unsatisfactory performance evaluation under certain circumstances

Teacher Improvement Plan [TIP] permitted in the absence of an unsatisfactory performance evaluation under certain circumstances

Decisions of the Commissioner of Education, Decision No. 16,510

A school psychologist, [P] was given a “counseling letter” as a result of alleged professional deficiencies and provided with a draft “Teacher Improvement Plan” [TIP]. Following discussions concerning the plan, a final TIP was agreed to and signed by the high school principal, the middle school principal and P.

P then filed an appeal with the Commissioner of Education alleging that although he was not rated “unsatisfactory,” the school district implemented a TIP for him without his consent and that he was not consulted in developing the TIP. Such actions, P argued were in violation of 8 NYCRR §100.2(o) of the Commissioner’s Regulations. P asked the Commissioner to direct the district to withdraw the TIP.

The district, on the other hand, contended that although P's TIP was not implemented as a result of an unsatisfactory rating pursuant to §100.2(o),  §100.2(o) does not preclude the promulgation of a TIP in the absence of an unsatisfactory evaluation under appropriate circumstances. The district also claimed that P was consulted in developing the challenged TIP.

Addressing the merits of P’s appeal, the Commissioner said that a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, citing 8 NYCRR §275.10.

§100.2(o) of the Commissioner’s regulations requires an annual evaluation of certain teachers, including pupil personnel service providers such as “school psychologists.” At the time P’s TIP was promulgated §100.2(o) provided as follows:

Teacher improvement. The plan shall describe how the school district or BOCES addresses the performance of teachers whose performance is evaluated as unsatisfactory, and shall require the development of a teacher improvement plan for teachers so evaluated, which shall be developed by the district ... in consultation with such teacher.

The Commissioner ruled that although §100.2(o) requires a school district to issue a TIP in the event the educator receives an unsatisfactory evaluation, nothing in §100.2(o), or any other statute or regulation, specifically bars the promulgation of a TIP where professional deficiencies are noted by means other than an evaluation. Accordingly, said the Commissioner, P failed to demonstrate that  §100.2(o)'s requirement that a TIP be developed for an educator receiving an unsatisfactory evaluation precludes the use of a TIP in other circumstances.

The Commissioner also determined that P’s claim that he was not consulted in the development of the TIP was not supported in the record.

P also contended that a decision to promulgate a TIP outside of the parameters set forth in §100.2(o) is subject to collective bargaining.

The Commissioner dismissed this aspect of the appeal explaining that Article 14 of the Civil Service Law vests exclusive jurisdiction over complaints involving collective bargaining in the Public Employment Relations Board [PERB] and, therefor, he “lack jurisdiction" to address the collective bargaining allegations raised by P in this appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16510.pdf

Internal Revenue Service to host a free “Online Presentation” for government employers rehiring former employees

Internal Revenue Service to host a free “Online Presentation” for government employers rehiring former employees

Source: The Internal Revenue Service 

The Internal Revenue Service [IRS] advises that the payroll tax treatment of a former government employee returning to work for the same entity may be different than it was prior to their retirement or separation. The "Online Presentation" [This presentation ] will help government employers understand how to comply with "the complicated and often misunderstood tax implications of hiring a former employee."

The presentation will address 

1. Section 218 Agreements [see below];

2. The roles the IRS, Social Security Administration and the National Conference of State Social Security Administrators have in determining the employment tax classification of a rehired annuitant;

3. Guidelines and examples on how to approach different rehired annuitant scenarios; and

4. How to seek assistance;

The presentation will be offered August 15, 2013 at 2 p.m. Eastern Time

Click here to register for this event. IRS suggests registering “as soon as possible because space is limited.”

Please send any questions you may have concerning this presentation via e-mail to the Internal Revenue Service at  te.ge.fslg.outreach@irs.gov

The following has been adopted from an IRS Section 218 Agreements and Social Security Coverage posting on the Internet

The IRS advises that a state and local government employees may be covered for social security and Medicare either by mandatory coverage, or under a Section 218 Agreement between the state and the Social Security Administration. Under some circumstances, an employee may be excluded from social security or Medicare, or both.

Sometimes, notes the IRS, employers fail to properly apply the terms of coverage to their employees. This leads to incorrect reporting, including non-reporting or erroneous coverage. Once incorrect reporting occurs it will often continue until the Social Security Administration or the IRS becomes involved; typically, during claims processing or examinations and audits.

Social security coverage can vary widely within a state or even a local area. IRS cautions public employers not to make an assumption about Section 218 coverage for an entity and whether it is in compliance with all applicable laws merely because of the status of a similar entity, either in the same or a different state.

For Section 218 coverage questions, public employers should contact its state Social Security Administrator (see www.ncsssa.org). For mandatory coverage questions, public employers should contact an IRS FSLG Specialist (see www.irs.gov/govts for a directory).

Another resource: The SSA State and Local Government Employers website at www.ssa.gov/slge.

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 July 27, 2013 [Click on text highlighted in bold to access the full report] 

DiNapoli Applauds NYSE Euronext for Joining the United Nations’ Sustainable Stock Exchanges Initiative

New York State Comptroller Thomas P. DiNapoli Wednesday commended NYSE Euronext, the parent company of the New York Stock Exchange (NYSE), for joining the United Nations Sustainable Stock Exchanges Initiative. NYSE Euronext made the announcement Wednesday at an event held at the NYSE with DiNapoli, NYSE Euronext CEO Duncan L. Niederauer and United Nations Secretary–General Ban Ki–moon.

DiNapoli: State Overpaid $7.8 Million For Hospital Admissions

The state Department of Health improperly paid hospitals $7.8 million for lengthy acute care admissions because hospitals billed Medicaid for higher levels of care than was actually delivered to patients, according to an auditreleased Thursday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: OPWDD Overpaid Contractor $1.1 Million

The state Office for People with Developmental Disabilities (OPWDD) overpaid a contractor by more than $1.1 million because it based payments on budgeted, rather than actual expenses, according to an auditreleased Friday by New York State Comptroller Thomas P. DiNapoli. DiNapoli’s auditors raised concerns that if OPWDD continues to pay contractors based on budgeted rather than actual cost, millions of dollars in additional overpayments could be made to contractors.

DiNapoli: Economic Recovery Helps Balance New York City Budget

A strong economy, bolstered by job gains that have outpaced the nation, have helped balance the New York City Fiscal Year 2014 budget and maintained services at current levels without raising taxes, according to a reviewof the city’s financial plan released Tuesday at the annual meeting of the Financial Control Board by New York State Comptroller Thomas P. DiNapoli. DiNapoli cautioned that despite smaller out–year budget gaps, significant risks to the budget remain.

The appointing authority is not required to read every page of the transcript taken at a disciplinary hearing

The appointing authority is not required to read every page of the transcript taken at a disciplinary hearing

31 AD3d 860

The Appellate Division, Third Department, affirmed the termination of a State Trooper after the Trooper was being found guilty of making unwanted sexual advances involving two female coworkers, rejecting his contention that the appointing authority “blindly accepted” the findings and recommendation of the disciplinary hearing Board rather than undertake an independent review of the evidence.

Significantly, the court said that the appointing authority was not required to read all 1,228 pages of the hearing transcript and each document submitted in the course of the hearing, citing Matter of Taub v Pirnie, 3 NY2d 188, 195 [1957).

In this instance, the court commented, the Trooper failed to demonstrate that the appointing authority "made no independent appraisal and reached no independent conclusion”, quoting Matter of Kilgus v Board of Estimate of City of N.Y., 308 NY 620, 628 [1955].

The Appellate Division also ruled that charges filed against the Trooper were not time barred since the Civil Service Law provides an exception to an 18-month statute of limitations in which to commence disciplinary proceedings if the charged misconduct "would, if proved in a court of appropriate jurisdiction, constitute a crime" (Civil Service Law §75[4]).

The court determined that misconduct alleged in one charge filed against the Trooper, if proven in a court of law, would constitute the crime of gender abuse in the third degree (see Penal Law §130.55) and thus this charge fell within the statutory exception and was not time barred.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05274.htm

Out of Title Work

Out of Title Work

Lake City Police Club v City of Oswego, 31 AD3d 1159

Noting the well-established principle that out-of-title work creates no automatic right to reclassification, the Appellate Division, citing Matter of McGuinness v New York State Off. of Ct. Admin., 61 NY2d 279, 281, held that the City of Oswego was not required to designate an employee of the Oswego County District Attorney’s office a detective notwithstanding the fact that the individual had been working out-of-title as a detective in the District Attorney’s office.

Further, the court obseved that “Civil Service Law §58(5) expressly provides, in relevant part, that it shall not apply to "the investigatory personnel of the office of the district attorney in any county.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05442.htm