Filing a timely “Notice of claim” pursuant to Education Law §3813(1) held a condition precedent to maintaining an action seeking damages

Filing a timely “Notice of claim” pursuant to Education Law §3813(1) helf a condition precedent to maintaining an action seeking damages

2014 NY Slip Op 01007, Appellate Division, Second Department

Challenging the School Board's decision denying a probationary teacher [Teacher] tenure and terminating her employment, Teacher filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Board's determination on the ground that it was arbitrary and capricious and sought reinstatement to her former position with tenure and back pay.

Supreme Court directed the Board to reinstate Teacher with back pay pending a hearing to determine “whether [Teacher] was denied tenure and terminated from her position as a probationary teacher in bad faith.”

The Board appealed and among its affirmative defenses it argued that Teacher “had failed to serve a notice of claim within three months after her claim arose as required by Education Law §3813(1).” The Appellate Division agreed and reversed the lower court’s ruling on the law. The Appellate Division explained that Teacher was, indeed, required, pursuant to Education Law §3813(1), to serve a timely notice of claim.*

The court distinguished Teacher’s claim from one where a litigant seeks only equitable relief or commences a proceeding to vindicate a public interest. Here, said the Appellate Division, Teacher sought damages in the form of back pay as well as equitable relief and had not commenced this proceeding to vindicate a public interest.

The court also noted that although a litigant seeking "judicial enforcement of a legal right derived through enactment of positive law" is exempt from the §3813(1) notice of claim requirement, that exemption is inapplicable here and Teacher’s service of a notice of claim pursuant to Education Law §3813(1) was a condition precedent to the maintenance of her action.

* In Mennella v Uniondale UFSD, Supreme Court, 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602, it was held that a timely appeal to the Commissioner of Education provides the pre-litigation §3813 Notice of Claim that must be filed with a school district while in Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division ruled that “the ‘tenure rights’ of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights,” citing Matter of Tadken v Board of Education, 65 AD2d 820, Motion for leave to appeal denied, 46 NY2d 711.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01007.htm

.

LawBlog Buzz - the five most read employment-related lawblogs during the week ending February 16, 2014 [listed in alphabetical order]

LawBlog Buzz - the five most read employment-related lawblogs during the week ending February 16, 2014 [listed in alphabetical order]

Source: Justia’s survey of 5,656 lawblogs for the week ending February 16, 2014 

Adjunct Law Prof Blog [Feed] Focuses on issues of interest to adjunct law professors, including labor law, employment law, employee benefits law and education law issues. By Adjunct Law Professor Mitchell H. Rubinstein. Last Updated: February 15, 2014 - Rank this Week: 190 http://lawprofessors.typepad.com/adjunctprofs/

Discourse.net [Feed] By University of Miami law professor Michael Froomkin. Covers civil liberties, the Internet, Guantanamo, Iraq attrocities, politics and more. Last Updated: February 15, 2014 - Rank this Week: 16 http://www.discourse.net/

New York Public Personnel Law [Feed] Provides summary and commentary on selected court and administrative decisions and related matters affecting public employers and employees in New York State. By Harvey Randall, Esq. Last Updated: February 15, 2014 - Rank this Week: 92 http://publicpersonnellaw.blogspot.com/ 

Whistleblower Law Blog [Feed] Covers legislation, news and cases for whistleblowers and those who represent them. By The Employment Group. Last Updated: February 12, 2014 - Rank this Week: 161 http://employmentlawgroupblog.com

Workplace Prof Blog [Feed] Covers arbitration, disability, employment discrimination, labor law, public employment law and workplace safety. By Professors Richard Bales, Jeffrey M. Hirsch and Marcia L. McCormick. Last Updated: February 14, 2014 - Rank this Week: 207 http://lawprofessors.typepad.com/laborprof_blog/ 

For additional Law Blogs with a New York State focus, go to:

http://publicpersonnellaw.blogspot.com/2012/07/law-blogs-with-new-york-focus.html 
.

.

.
.

Empire State Fellows Program to prepare new policy-makers to lead New York State

Empire State Fellows Program to prepare new policy-makers to lead New York State

Source: Officer of the Governor

On February 12, 2014 Governor Andrew M. Cuomo announced the opening of the application process for the third class of the Empire State Fellows to attract exceptional and diverse talent from New York and around the country to serve in high-level positions in the administration. Since its inception in 2012, the two-year Program has begun preparing a new generation of policy-makers to help lead New York State government.

Candidates selected as Empire Fellows will be appointed to positions in the Executive Branch that match their skills and experience, and will work closely with senior administration officials to create transformative policy solutions to the complex challenges confronting our state. Empire Fellows will also engage in educational and professional development programming that prepares them to serve as effective and ethical government leaders.

Successful Empire State Fellows may continue serving New York State after completing the Program. Governor Cuomo recently appointed three Empire State Fellows to senior positions in his administration: Jennifer M. Gómez is now the New York State Assistant Secretary for Human Services and Information Technology, Nora K. Yates is now the Deputy Director of The Community, Opportunity, Reinvestment Initiative (CORe), and Kisha Santiago-Martinez is now an Assistant Commissioner at New York State Homes and Community Renewal.

Empire State Fellow applications are to submitted by Friday, April 4, 2014. For more information on the Empire State Fellows Program and the application process, go to http://www.dos.ny.gov/newnyleaders/fellows-qualifications.html

For more information about the program, see www.newnyleaders.com.
.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 15, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 15, 2014

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli on Tuesday, February, 11, 2014,  announced his office completed audits of:

the Brighter Choice Charter Middle School for Boys;

the Brighter Choice Charter Middle School for Girls;

the Frewsburg Central School District;

the Holley Central School District; and

the Homer Central School District.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli on Wednesday, February 12, 2014, announced his office completed audits of:

the Albany County Probation Department;

the Town of Java; and

the Virgil Fire District.

NYS Common Retirement Fund Announces Third Quarter Results

The New York State Common Retirement Fund’s (Fund) estimated rate of return for the third quarter ending Dec. 31, 2013 was 5.14 percent, increasing the Fund’s value to an estimated $173.2 billion, according to New York State Comptroller Thomas P. DiNapoli. The Fund ended its fiscal year on March 31, 2013 at $160.7 billion.

DiNapoli Announces $200 Million Commitment for Opportunistic Investments

New York State Comptroller Thomas P. DiNapoli announced on Friday, February 14, 2014  that the New York State Common Retirement Fund has allocated $200 million to Pine Street Alternative Asset Management for opportunistic investments through its Emerging Manager Program. DiNapoli made the announcement during his address to attendees at the seventh annual Emerging Manager Conference in Albany on Friday, February 14, 2014.
.

A court’s review of an administrative hearing conducted pursuant to law is limited

A court’s review of an administrative hearing conducted pursuant to law is limited
2014 NY Slip Op 00663, Appellate Division, Second Department

The Civil Service Law §75 disciplinary hearing officer found the employee against whom disciplinary charges and specifications had been filed [Petitioner] guilty of certain disciplinary charges and recommended that the employee be terminated from the position. The Board of the Public Library adopted the hearing officer’s findings and recommendation as to the penalty to be imposed and dismissed Petitioner.

The Appellate Division confirmed the Board’s action on the merits and dismissed Petitioner’s Article 78 compliant seeking to overturn the Board’s decision, with costs. 

The court said “Judicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record,” citing 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 and other decisions.

Quoting from Matter of Berenhaus v Ward, 70 NY2d 436, the Appellate Division explained that in the event there is conflicting evidence or different inferences may be drawn from the evidence, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists."

In this instance any credibility issue was resolved by the hearing officer and the Appellate Division found no basis upon which to disturb the hearing officer's determination as it was supported by substantial evidence.

Rejecting Petitioner's argument to the contrary, the court ruled that under the circumstances presented, the penalty of termination of Petitioner's employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness, citing the Pell Doctrine [Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00663.htm

.