Seeking reimbursement for attorney fees incurred by an employee in the course of judicial and quasi-judicial actions taken against the individua

Seeking reimbursement for attorney fees incurred by an employee in the course of judicial and quasi-judicial actions taken against the individual
2013 NY Slip Op 06910, Appellate Division, Third Department

This decision by the Appellate Division addresses a number of issues that arose in connection with the employee and his attorney seeking reimbursement for attorney fees incurred in the course of defending administrative disciplinary charges and federal and state civil and criminal action in which the employee was a party.

The elements considered by the court included claims and defenses based on an alleged unilateral contract; promissory estoppel; unjust enrichment; quantum meruit and fraud and the impact, if any, of the terms and conditions set out in the collective bargaining agreement between the employee’s union and his employer providing for the employer's reimbursing an employee for legal fees incurred by an employee in defending himself or herself in such judicial and quasi-judicial actions.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06910.htm

Suspension without pay while disciplinary action is pending

Suspension without pay while disciplinary action is pending
2013 NY Slip Op 06769, Appellate Division, Third Department

One of the issues addressed by the Appellate Division was a question involving the suspension without pay of an individual served with disciplinary charges pursuant to Civil Service Law §75.

Noting that in order to avoid unreasonable delay in moving forward with pending charges, Civil Service Law §75(3) authorizes suspension of pay during a disciplinary proceeding for only 30 days. Where the disciplinary action has not been resolved within this 30-day period, the accused is entitled to be reinstated to the payroll and receive his or her regular compensation until an administrative determination regarding the disciplinary charges by the appointing authority has been made.

The Appellate Division, citing Gerber v New York City Hous. Auth., 42 NY2d 162, said this 30-day limitation does not apply in the event of delays attributable solely to the charged employee or where such payment has been clearly waived by such employee.

Courts have approved the placement of an individual on leaves without pay for periods equal in length to any adjournment in the hearing process requested by the employee. See, for example, DeMarco v City of Albany 75 AD2d 674 and Amkraut v Hults, 21 AD2d 260.

For other exceptions due to collective bargaining agreements or for other reasons, see Winkler v Kingston Housing Authority, 259 A.D. 2d 819 and Robinson v New York City Transit Authority, 226 AD2d 467.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06769.htm
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Supplemental Military Leave Benefits

Supplemental Military Leave Benefits

Source: New York State Register, Dated October 30, 2013

The New York State Civil Service Commission has extended supplemental military leave benefits available to employees in the classified service of the State as the employer pursuant to 4 NYCRR §§21.15 and 28-1.17 through December 31, 2013. 
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An improper appointment to a tenure area may adversely affect the rights of an educator in the event of a layoff

An improper appointment to a tenure area may adversely affect the rights of an educator in the event of a layoff

Appeal of Jennifer Cronk, Decisions of the Commissioner of Education, Decision No. 16,568

Jennifer Cronk was certified to teach grades K-6 and English grades 7-12. On August 29, 2000, she was assigned to teach computer programming in the school district’s middle school and high school and effective September 1, 2000 the district appointed Cronk to a three-year probationary position in the English tenure area.

Cronk was granted tenure in the English tenure area on June 17, 2003, effective August 31, 2003. In May 2011, the district notified Cronk that it was abolishing two full-time positions in the grades 7-12 English tenure area and that her services would be terminated on June 30, 2011.

Cronk, contending that she was not the least senior teacher in the English 7-12 tenure area and thus she had been “illegally excessed,” appealed to the Commissioner of Education.  In support of her claim, Cronk said that had provided instructional support services as described in Part 30 of the Rules of the Board of Regents for the 2000-2001 through the 2010-2011 school years and asked the Commissioner to declare that she had accrued seniority in the tenure area of grades 7-12 English, commencing on September 1, 2000.

The school district, in rebuttal, argued that Cronk “has not met her burden of establishing that she served in the English grades 7-12 tenure area for these school years” and that its decision to terminate her was not arbitrary and capricious because she had never taught English and had only taught computer programming classes and was therefore had been improperly assigned to the English grades 7-12 tenure area.

The school district raised also raised a procedural issue, claiming that Cronk had failed to name and serve necessary parties – other educators that might be adversely affected were the Commissioner to grant her appeal.

The Commissioner agreed with the school district’s position regarding Cronk’s failure to name necessary parties, citing a number of earlier rulings concerning this issue including Appeal of Murray, 48 Ed Dept Rep 517. The Commissioner explained that a necessary party “must be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense."

Cronk had filed her appeal on June 23, 2011 by service of a notice and petition but failed to name two other teachers in the district in the English 7-12 tenure area who might be affected by a determination in this appeal nor were these two teachers served with a copy of Cronk’s petition.* Having failed to properly join the two teachers, the Commissioner ruled that Cronk’s appeal must be dismissed.

However, said the Commissioner, “Even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits” explaining that. Education Law §3013(2) provides that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.” Section 30-1.1(f) of the Rules of the Board of Regents defines seniority as follows: “Seniority means length of service in a designated tenure area ....”

Addressing the merits of Cronk’s appeal, notwithstanding its dismissal on procedural ground, the Commissioner said that the principal issue in this appeal is whether Cronk was the least senior teacher in the English 7-12 tenure area. In general, seniority may be accrued in a given tenure area only if the service of the teacher in such area constitutes 40% or more of the total time spent in the performance of instructional duties (8 NYCRR §30-1.1 [f] and [g]).

It was undisputed that Cronk did not teach English in grades 7-12 in the 2000-2001 through 2010-2011 school years. Although she alleged that she had provided instructional support services during that period and therefore is entitled to receive credit toward tenure and seniority in the English 7-12 tenure area pursuant to section 30-.2(b)(1) of the Rules of the Board of Regents, the Commissioner said that on the record before him he found that Cronk did not demonstrate that she devoted at least 40% of her work time to instruction in English and/or instructional support services.

Rather, said the Commissioner, the record indicated that during the 2000-2001 through 2010-2011 school years, Cronk was assigned full-time to teach computer programming to students in the middle and high school grade levels. Further, in an appeal to the Commissioner, 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.” Here, said the Commissioner, Cronk failed to submit any lesson plans or any other evidence to demonstrate that she spent more than 40% of her time in the English 7-12 tenure area and/or performing instructional support services during any of these school years.

Accordingly, the Commissioner decided that Cronk “never served in the English 7-12 tenure area.”

Significantly the Commissioner noted that the prohibition contained in §30-1.9 of the Rules of the Board of Regents against assigning a professional educator to devote asubstantial portion of his or her time in a tenure area other than that in which he or she has acquired tenure without his or her consent did not apply in this instance. From the inception of her employment by the board Cronk never devoted a substantial portion of her time within the 7-12 English tenure area and therefore was not a professional educator entitled to the protection of §30-1.9. Accordingly, Cronk could not now claim on that basis that she is not the least senior teacher in the English 7-12 tenure area.

Further, although the record indicates that Cronk was assigned to teach computer programming and therefore did appear to have spent a substantial portion of her time in the career and technical education tenure area, she had not raised that issue in this appeal nor sought reinstatement to a position in that tenure area.

However, said the Commissioner, “Even if she had, because she was never in probationary status in that tenure area §30-1.9 does not apply and, in any case, reinstatement with back pay to a position for which she is not qualified would be unlawful (see Education Law §§3001, 3009).”

The Commissioner then said that “Although I am constrained to dismiss this appeal, I note that when [Cronk] commenced her employment with the district, [the school board] lacked the authority to offer her a tenured position as an English 7-12 teacher” and reminded the board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.”

* N.B.Cronk “neither sought nor received permission to join any additional parties as respondents subsequent to commencement of her appeal on June 23, 2011” but, instead, on July 22, 2011, unilaterally attempted to add both teachers as respondents to the appeal by serving them with of an amended notice and petition. This, said the Commissioner, was improper, since under §275.1 of the Commissioner’s Regulations, after an appeal is commenced parties may not be joined except by leave or direction of the Commissioner

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16568.pdf
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Proceeding with an administrative hearing in the absence of the individual and his or her attorney

Proceeding with an administrative hearing in the absence of the individual and his or her attorney
2013 NY Slip Op 06900, Appellate Division, Third Department

One of the issues considered by the Appellate Division in this appeal challenging the New York State’s Administrative Review Board for Professional Medical Conduct revocation of the physician's license to practice medicine in New York State was the allegation that the physician was denied administrative due process.

With respect to the physician’s due process claims, the Appellate Division found that:

1. The physician was provided with fair notice of the charges and hearing dates, an opportunity to present a defense and a fair hearing that comported with due process.

2. The Administrative Law Judge (ALJ) did not abuse her discretion in denying the physician's untimely, last minute request for an adjournment of the mutually agreed-upon second day of the hearing.

According to the ruling, the parties had mutually agreed upon a number of additional hearing dates in the course of the first day of the hearing.

The day before that second hearing date, April 12, the physician's attorney belatedly an email to the ALJ and the BPMC’s counsel stating that the physician was "out of the country," she was "[un]able to contact him" and requesting an adjournment until the next hearing date. In response to the BPMC's counsel immediate objection to the request, the physician's attorney sent an email that she would "not attend the hearing."

The following day, neither physician nor his attorney appeared as scheduled for the second day of the hearing. The ALJ denied the requested adjournment, noting that, just that morning, she had received the belated email adjournment request and that physician’s attorney had offered no valid reason for her failure to appear on the physician’s behalf.

The ALJ then proceeded with the second day of hearing, notwithstanding the absence of the physician and his attorney, during which testimony was heard and BPMC rested.

The Appellate Division said that it found no error or abuse of discretion, particularly given that no good cause was offered by the physician’s attorney for their absence, noting that the request for a postponement was untimely in that “the notice of hearing had clearly advised [the physician and his attorney] that any requests for adjournments, among other requirements, had to be made ‘at least five days prior to the scheduled hearing date,’ and they were informed at the outset of the first hearing that it could continue in their absence.”

The Appellate Division also noted that the physician contended that a week prior to the second hearing date he left the county due to an unspecified death in his family, but offered no explanation why he did not, at that time, contact his attorney, the ALJ or BPMC to timely request an adjournment. In addition, the court said that the physician’s subsequent “unsubstantiated” claim advanced in the course of an administrative appeal that his attorney was ill on the second hearing date was properly rejected as not credible, “particularly given that [the physician’s attorney] made no mention of any illness in her belated emails requesting an adjournment.”

Further, said the court, the physician waived his limited right to cross-examine the witness who had testified in his absence “by failing, without good cause, to appear.”

The court said it was not persuaded that the penalty imposed for the sustained charges -- of revocation the physician’s license to practice medicine in New York State -- was so disproportionate to the physician's pattern of misconduct, as reflected in the Board's findings, "as to shock one's sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06900.htm
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