A counseling memoranda that includes more than “job related feedback” may constitute disciplinary action

12 Misc 3d 1197(A)

An employee was given a written “counseling memorandum” following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates.

The counseling memorandum, in part, issued by the appointing authority stated:

This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future.

A “counseling memorandum” issued to a permanent employee typically is not considered disciplinary action requiring “notice and hearing.” In this instance, however, the court ruled that the counseling memorandum given to the employee did, in fact, constitute a disciplinary action taken against him and thus was subject to the disciplinary grievance procedures set out in a collective bargaining agreement [CBA]. 

While the CBA specifically provided that “counseling is not discipline,” the court said that the counseling memorandum issued to Harper by his employer also requires that he attend Supervisory Training and Sexual Harassment Prevention Training,. This additional requirement extended beyond the mere "job-related feedback" referred to in the CBA and thus constituted disciplinary action within the meaning of the CBA.

Accordingly, the employee was entitled to administrative due process in the form of a notice of discipline and a hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_51605.htm

Contracting out the recruitment and appointment of substitute teachers

Contracting out the recruitment and appointment of substitute teachers

Appeal of Kim E. Woodarek, Comm. Of Education Decision No. 15,422

The Commissioner of Education ruled that a school district does not have the authority to enter into a contract with a private party to recruit, interview, select, hire and assign employees to render per diem substitute teaching.

The Commissioner applied the rationale set out in the Sweeney decision [(44 Ed Dept Rep 176, Decision No. 15,139)]. In Sweeney it was held that a BOCESdoes not have the authority to contract with a private party for instructional services.

Other appeals in which the Commissioner determined that a board of education lacks authority to provide instructional services through an independent contractor include Appeal of McKenna, 42 Ed Dept Rep 54, Decision No. 14,774; Matter of Friedman, 19 Ed Dept Rep 522, and Decision No. 10,236. [See, also, Education Law §1950(4)].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume46/d15422.htm

Termination and reinstatement to a lower grade position prior to completion of the required probationary period

Termination and reinstatement to a lower grade position prior to completion of the required probationary period

31 AD3d 456

The Appellate Division, Second Department affirmed the termination on an employee prior to the end of his probationary period in a higher level position and his reinstatement to his former, lower grade position.

In response to the employee’s challenging his termination during his probationary period the Appellate Division said that "A probationary employee may be discharged without a hearing and without a statement of reason in the absence of any demonstration that the dismissal was for a constitutionally-impermissible purpose or in violation of statutory or decisional law" citing such decisions as Walsh v New York State Thruway Auth., 24 AD3d 755; Matter of York v McGuire, 63 NY2d 760; and Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist., 1 AD3d 367.

Accordingly, the Appellate Division rejected the employee’s contention that he was entitled to the procedural protections of Civil Service Law §75 as he was removed from his appointed position prior to his satisfactory completion of a one-year probationary period.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05375.htm

State Comptroller holds $12.5 BILLION IN UNCLAIMED FUNDS, some of which may be the property of a New York governmental entity

State Comptroller holds $12.5 BILLION IN UNCLAIMED FUNDS, some of which may be the property of a New York governmental entity

Source: Office of the New York State Comptroller

New Yorkers and others can find out if they are owed some of the state’s $12.5 billion in unclaimed funds using the Comptroller’s Unclaimed Funds database via the Internet at:

https://ouf.osc.state.ny.us/ouf/

However, these are not just unclaimed funds belonging to individuals and businesses. 

The Comptroller also has monies received pursuant to the Abandoned Property Law belonging to counties, cities, towns, villages, school districts and public employee organizations.

For example, the Comptroller currently lists funds belonging to the following entities:

COUNTY OF CATTARAUGUS

INDUSTRIAL DEVELOPMENT AGENCY CCIDA #L83 02 LITTLE VALLEY NY 14755

COLUMBIA GAS TRANSMISSION CORP

CITY OF BUFFALO

C/O CARL DOBOZIN ATTY AT LAW 68 NIAGARA STREET BUFFALO NY 14202

UTICA FIRST INSURANCE CO

TOWN OF JUNIUS

RD 2 BOX 154 3 WATERLOO NY 13165

EXCHANGE INSURANCE CO

VILLAGE OF CHERRRY CREEK

VILLAGE TREASURER CHERRY CREEK NY 14723

NEW YORK STATE ELECTRIC & GAS CORP

BOCES OF NASSAU COUNTY

207 NEWTOWN ROAD PLAINVIEW NY 11803

CITIBANK NA NATIONAL COMPLIANCE GRP

ROCHESTER CITY SCHOOL DISTRICT

C/O 131 W BROAD ST ROCHESTER NY 14614

SCHOLASTIC BOOK CLUBS INC

CSEA LOCAL 1000 AFSCM

143 WASHINGTON AVE CAPITON ST ALBANY NY 12224

STATE OF CALIFORNIA

BOCES TEACHERS ASSOC

2542 2ND AVE SCHENECTADY NY 12303

TD BANK NA

POLICE BENEVOLENT ASSOC TOWN

BOX 89 ARRONK NY 10504

BANKERS TRUST CO

However, those searching for monies that may be due a particular jurisdiction will have to be inventive. For example, monies that could be claimed by the City of Rochester have been filed as belonging to:

CITY CLERK OF ROCHES

CITY CLERKS OFFICE 30 CHURCH STREET R00M 100-A ROCHESTER NY 14614

STERLING COLLISION CENTERS

ROCHESTER CITY

CITY HALL 30 ROCHESTER NY 14614

CCO MORTGAGE CORP HOLDER 014360

ROCHESTER POLICE DEPT

JEANNE MARCIANO SIS 150 PLYMOUTH AVE S S TE 620 ROCHESTER NY 14614

VERIZON WIRELESS

Again, the Comptroller’s Unclaimed Funds database is available via the Internet at:

https://ouf.osc.state.ny.us/ouf/

Appointment of an “uncertified teacher” to fill a school district’s vacancy in an “extracurricular activity” lawful

Appointment of an “uncertified teacher” to fill a school district’s vacancy in an “extracurricular activity” lawful

Appeal of Canestraro, Decisions of the Commissioner of Education, Decision No. 16,507

Michael Canestraro challenged various actions of the Board of Education of the William Floyd Union Free School District [William Floyd] related to his position being laid off and its refusal to appoint him to another available position.

Mr. Canestraro, certified in Performing Arts and Drama, was employed by William Floyd  as a teacher of Theater and Dance. He was granted tenure in the music tenure area in 2006. Budgetary constraints resulted in William Floyd’s eliminating a position in the music tenure area and Mr. Canestraro was notified that “his position was abolished … and that he would be placed on a preferred eligibility list.”

In his appeal to the Commissioner Mr. Canestraro asserted that he was improperly terminated as he was not the least senior person in the music tenure area. He also contended that William Floyd “violated his constitutional and statutory rights in that he was deprived of his property without due process of law” and violated Education Law §3013(3)* by employing Jennifer Roller, a non-tenured teacher, uncertified in Performing Arts and Drama, instead of appointing him to the position Director of the Children’s Theatre.

William Floyd contended that [1] Mr. Canestraro’s appeal was untimely, [2] that Mr. Canestraro lacks certification for the positions to which he claimed recall rights and [3] that Mr. Canestraro’s petition failed to state a cause of action.

After addressing a number of procedural issues, the Commissioner dismissed Mr. Canestraro’s appeal as untimely** and other procedural defects set out in the Commissioner’s determination.

The Commissioner pointed out 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.

In this instance the Commissioner found that Mr. Canestraro’s claim that Ms. Roller was not properly certified to be the Director of the Children’s Theatre was not supported by the record. The Commissioner said that an affidavit of William Floyd’s assistant superintendent for human resources and administration indicates that the district abolished its theater program and that the Children’s Theatre at the high school is an extracurricular activity, outside of the school day.

Consequently, said the Commissioner, because the Children’s Theater was not part of William Floyd’s academic curriculum, but was an extracurricular activity, Ms. Roller was not required to be certified to hold the position of Director of the Children’s Theatre. Thus Mr. Canestraro failed to demonstrate that Ms. Roller was required to hold certification in order to be lawfully employed in this extracurricular activity.

Finally, the Commissioner ruled that Mr. Canestraro’s reliance on the “continuing wrong doctrine” was misplaced as it dis not apply in this instance and this element of his claim must also be dismissed.

* §3013(3), in pertinent part, provides: “The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position.”

** Mr. Canestraro initially filed a Notice of Claim for reinstatement and damages but Supreme Court, Suffolk County, dismissed his Article 78 petition on the grounds that the Commissioner of Education had primary jurisdiction over the dispute [Canestraro v. William Floyd Union Free School District, Supreme Court, Suffolk County, Index No.0045692/2010]. The Commissioner noted that an unsuccessful attempt to litigate a dispute in court that does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within 30 days of receipt of the judicial determination.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16507.pdf

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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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