Defense for tenured administrators and faculty rated "ineffective" based on “Common Core”student performance proposed

Defense for tenured administrators and faculty rated "ineffective"  based on “Common Core”student performance proposed

Proposed Action: Amend 8 NYCRR 82-1.10(j) with respect to hearings on charges of tenured school employees [I.D. No.EDU-08-14-00020-P]

The following summarizes a proposed amendment to 8 NYCRR 82-1, Hearings of Charges Against Employees on Tenure

Purpose: To allow, under certain circumstances, tenured teachers and principals to raise as a defense in a section 3020-a hearing that their school district failed to timely implement the Common Core in the 2012-2013 and/or 2013-2014 school year.

Summary of the text of proposed rule: Subdivision (j) of section 82-1.10 of the Regulations of the Commissioner of Education is added, effective May 14, 2014, as follows:

(j) Where an expedited hearing brought based solely upon a charge of a pattern of ineffective teaching or performance of a classroom teacher or principal, or a hearing brought on a charge of incompetency, is based on an ineffective rating on the state growth and/or locally selected measures subcomponents of the teacher’s or principal’s annual professional performance review resulting from student performance on the Common Core state assessments administered in the 2012-2013 and/or 2013-2014 school years, the employee may raise as a defense an alleged failure by the employer to timely implement the Common Core by providing adequate professional development, guidance on curriculum or other supports to the employee.

The notice of this proposed amendment in the State Register explains that "the proposed amendment would thus protect tenured teachers and principals from termination based on an ineffective Annual Professional Performance Review (APPR) rating resulting from student performance on the Common Core assessments where they can prove that the district did not provide the professional development, curriculum materials or other supports needed for Common Core implementation during the 2012-2013 and/or 2013-2014 school years.”

The text of proposed rule and any required statements and analyses may be obtained from: Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov

Data, views or arguments may be submitted to: Peg Rivers, State Education Department, Office of Higher Education, Room 979 EBA, 89 Washington Ave., Albany, NY 12234, (518) 486-3633, email: regcomments@mail.nysed.gov

Public comment will be received until 45 days after publication [February 26, 2014] of this notice.
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Workers’ Compensation Law benefit claims based on "work-related" mental stress

Workers’ Compensation Law benefit claims based on "work-related" mental stress 
2014 NY Slip Op 00916, Appellate Division, Third Department

A police officer [Claimant] was on duty when he was called to the scene of an incident in which an armed suspect was firing shots at passing motorists and law enforcement officers.

Claimant and two fellow officers were assigned to be part of a "contact team," which approached the shooter from behind. The suspect was shot several times and died from those wounds. Claimant began to miss work and then filed an application for workers' compensation benefits. His claim was controverted by the police department.

Claimant was diagnosed with posttraumatic stress disorder related to the incident, which rendered him disabled. A Workers' Compensation Law Judge, however, denied his claim, finding that the events giving rise to Claimant's injury were part of his job description and responsibilities as a peace officer. The Law Judge ruled that Claimant had not sustained an accidental injury in the course of his employment.

The Workers' Compensation Board ultimately affirmed the Law Judge’s decision and Claimant appealed.

The Appellate Division upheld the Appeal Board’s decision, explaining that for a mental injury premised on work-related stress to be compensable, "the stress must be greater than that which usually occurs in the normal work environment."*

Whether the stress experienced by a claimant is more than that normally encountered is a factual question for the Board to resolve, and its finding will not be disturbed when supported by substantial evidence.

In this instance, said the court, although Claimant's supervisor described the particular circumstances of the encounter as "extraordinary," the regular course of duty for a police officer — no matter the size of the department — requires that he or she be on notice each day that deadly force may be required to subdue a suspect who is endangering public safety.

Accordingly, the Appellate Division said that it declined to disturb the Board's decision.

Other claims seeking Workers' Compensation Law benefits in which the individual claim he or she was entitled to benefits due to stress suffered on the job include:

1. Mattoon v Workers' Compensation Board, 284 A.D.2d 667 – employee not eligible for Workers’ Compensation benefits after leaving her job “due to work-related stress that resulted in depression, posttraumatic stress disorder and generalized anxiety disorder.” resulting from employee’s reassignment to anther position.

2. Witkowich v SUNY Alfred State Coll. of Ceramics, 80 AD3 1099 - Stress resulting from a lawful personnel action, including discipline, is not a compensable injury within the meaning of the Workers’ Compensation Law

3. Veeder v New York State Police Dept. - 86 AD3d 762 - Workers' Compensation Law benefits not available for “mental injury” resulting from an employer’s lawful personnel actions

*Section 2(7) of the Workers’ Compensation Law specifically excludes from compensation "an injury which is solely mental and is based on work related stress if such mental injury is a direct consequence of a lawful personnel decision involving a disciplinary action, work evaluation, job transfer, demotion, or termination taken in good faith by the employer."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00916.htm
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A showing that a pending arbitration’s award may be rendered ineffectual and there is a likelihood of success is critical to obtaining a preliminary injunction

A showing that a pending arbitration’s award may be rendered ineffectual and there is a likelihood of success is critical to obtaining a preliminary injunction
Patrolmen's Benevolent Assn. of the City of New York, Inc. v City of New York,2013 NY Slip Op 08033, Appellate Division, First Department

Three members [Petitioners] of the Patrolmen's Benevolent Association of the City of New York, Inc. (PBA) were elected to four-year terms as the sole borough-wide PBA representatives for police officers assigned to the Bronx. At the request of the PBA, the Office of Labor Relations (OLR) issued Petitioners Release Time Certificates pursuant to Mayor's Executive Order #75 (3/22/73) (EO 75), which provided for full-time leave with pay and benefits.*

The three Petitioners, however, were subsequently suspended without pay for thirty days pursuant to Civil Service Law §75(3-a) following their indictment by a grand jury in connection with an alleged ticket-fixing scheme. Petitioners were subsequently restored to modified duty. OLR, however, rescinded their Release Time Certificates and offered to issue new Release Time Certificates to three other employees to be chosen by PBA.

PBA rejected the offer and filed a contract grievance. The grievance was denied and PBA filed a demanded for arbitration, contending that the rescission of the Certificates violated the parties' collective bargaining agreement and EO 75.  PBA also filed a petition for a preliminary injunction pursuant to CPLR 7502(c) seeking to have the Petitioner’s Certificates reinstated pending the arbitrator issuing his or her decision and award..

Supreme Court granted the petition, “enjoining respondents from implementing any termination or revocation of ‘Release Time’ leave for the three individual petitioners pending resolution of arbitration proceedings commenced by petitioner Patrolmen's Benevolent Association.”

The Appellate Division vacated the preliminary injunction on appeal in a three to two ruling.**

Noting that CPLR 7502(c) provides that the Supreme Court "may entertain an application for ... a preliminary injunction in connection with an arbitration that is pending ... the majority explained such an application may be granted “only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief." Further, said the court, PBA, as the party seeking the preliminary injunction, was required to “demonstrate a probability of success on the merits, danger of irreparable injury in the absence of a preliminary injunction, and a balance of the equities in their favor.”

Applying these standards, and "even assuming that [Petitioner] established that an award in their favor would be rendered ineffectual without provisional relief" as required by CPLR 7502(c), the majority held that PBA “failed to make the requisite showing of a likelihood of success on the merits, and therefore have not established their entitlement to injunctive relief.”

The majority noted that each Release Time certificate stated that it “MAY BE REVOKED, MODIFIED OR CANCELLED” and Petitioners did not suggest any purpose for such language “other than to vest the City with residual authority to rescind a Release Time [Certificate] where warranted.”

Holding that Petitioners' interpretation of EO 75 was not plausible, the majority concluded that Petitioners “have not demonstrated a likelihood of success on the merits,” the Appellate Division granted the appeal.

* With respect to the State as the employer, employee organization leave has been an issue since the adoption of the Taylor Law. In response to demands that State employees elected to a leadership position of an employee organization representing state employees be provided with "paid organization leave," the State agreed to provide for “Employee Organization Leave” and enacted §46 of Chapter 283 of the Laws of 1972 to this end. This law provides that a State employee organization may obtain approval for paid full or part-time leaves of absence of its representatives provided it agrees to fully reimburse the State for the salary and other compensation paid to the individual and, in addition, for all employer contributions for fringe benefits made on behalf of the individual while he or she is on Employee Organization Leave. The individual would continue as a State employee, on the State’s payroll, during this time. Another consideration affecting State employees on Employee Organization Leave: The State Ethics Commission has advised [Advisory Opinion No. 90-1] that “State employees on Employee Organization Leave or State employees on leave without pay who serve as employee organization representatives for CSEA … who have terminated their State service and are now employed by CSEA are subject to the "revolving door" provisions of the Public Officers Law and the corresponding restrictions on post-employment activities.” Presumably this opinion would be applied with respect to State employees on employee organization leave serving with other employee organizations.”

** Judges Tom and Gische dissented in an opinion by Judge Gische.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08033.htm

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Department of Civil Service - Five Year Review of Certain Existing Rules and Regulations

Department of Civil Service - Five Year Review of Certain Existing Rules and Regulations

Source: NYS Register- February 19, 2014

The following notice was published in the February 19, 2014 issue of the State Reporter pursuant to §207 of the State Administrative Procedure Act (SAPA) addressing Rules and Regulations adopted by the New York State Civil Service Commission or by the President of the New York State Civil Service Commission for the calendar years 1999, 2004 and 2009.

Public Comments

There will be a forty-five (45) day public comment period following publication of this notice. Requests for information and public comments regarding the foregoing may be directed to: J . Marc Hannibal, Eaq., Special Counsel, Department of Civil Service, Empire State Plaza, Albany, NY 12239, (518) 473-2624, E-mail address: marc.hannibal@cs.state.ny.us

Below is a brief description of each rule, including the statutory authority for its promulgation; a statement of the justification for the ongoing need for each rule; and the Department of Civil Service’s recommendations for their continuation without modification.

1999

Amendments to Chapter II of Title 4 of NYCRR (Attendance Rules for Employees in New York State Departments and Institutions)

Statutory Authority: Civil Service Law Section 6

Description of the Regulations:

The resolutions added new sections and amended existing sections of the Attendance Rules for non-managerial/confidential (Part 21 of 4NYCRR) and managerial/confidential (Part 28 of 4 NYCRR) employees in New York State Departments and Institutions.

Sections 21.16 and 28-1.18 of the Attendance Rules were adopted to permit appointing authorities to grant overtime ineligible employees who have exhausted military leave with pay provided pursuant to the New York State Military Law, further leave with pay without charge to accruals for any period[s] of less than a workweek during which such employees are ordered to temporary military duty.

Section 21.9 and 28-1.9 of the Attendance Rules were amended to permit agencies to grant overtime ineligible employees leave with pay without charge to accruals for any absence[s] of less than a workweek during which such employees are required to appear as a witness pursuant to a subpoena or other order of court, regardless of whether an

employee is a party to the action.

These rules ensure that the Attendance Rules will be applied to employees serving in overtime ineligible positions consistent with relevant provisions of the federal Fair Labor Standards Act (FLSA).

Action: The rules have functioned consistent with the purposes underlying their adoption and the Department recommends continuation without modification.

Amendments to Chapter V of 4 NYCRR (Regulations of the Department of Civil Service [President’s Regulations])

Statutory Authority: Chapter 534 of the Laws of 1998, amending section 167(2) of the Civil Service Law.

Description of the Regulations:

Chapter 534 of the Laws of 1998 amended section 167(2) of the Civil Service Law to provide that unpaid board members of public authorities shall be eligible to participate in the New York State Employee Health Insurance Program (NYSHIP) after six months of

service.

The regulation added a new subparagraph (iv) to section 73.1(c)(1) and a new paragraph (5) to section 73.1(e) of the President’s Regulations providing that unpaid board members of public authorities may participate in NYSHIP after six months of service and may also

continue their NYSHIP enrollment upon leaving public service with20 years or more of service in such positions.

Action: The regulations have functioned consistent with the purposes underlying their adoption and the Department recommends continuation without modification.

Amendment to Chapter V of 4 NYCRR (Regulations of the Department of Civil Service [President’s Regulations])

Statutory Authority: Civil Service Law, Article XI

Description of the Regulation:

Section 73.3(b)(1) of the President’s Regulations was amended to enable participating agencies (PAs) and participating employers (PEs) in the New York State Health Insurance Program (NYSHIP) to contribute towards health insurance premiums on behalf of employees on leave without pay, provided such benefit is accorded to all employees within a class or category. The amendment provides that upon (60) days prior notice to the Department of Civil Service, PAs and PEs may provide such benefit to an eligible employee for a period of two years. This authorization may be extended for one additional two year period by the State Civil Service Commission for good cause shown and where the interests of government would be served. The amendment further provides that where contributions have been made on behalf of an employee on leave without pay for a two year period, or a four year period where authorized by the State Civil Service Commission, no further extensions may be granted unless the employee returns to his or her position and serves continuously therein for the six month period immediately preceding a subsequent leave of absence. This regulation extends an additional potential benefit to eligible employees and forms a part of the overall “benefit package” that employers may consider when electing to adopt NYSHIP as a health insurance offering.

Action: The regulation has functioned consistent with the purposes underlying its adoption and the Department recommends continuation without modification.

2004

Amendment to Chapter IV of 4 NYCRR (Regulations of the Regulations of the State Civil Service Commission [Commission’s Regulations])

Statutory Authority: Civil Service Law Section 6

Description of the Regulation:

The resolution amended Part 55.2 to provide that a committee on appeals of the State Civil Service Commission shall not consider an examination appeal from a candidate whose score at time of establishment of the eligible list is immediately reachable for appointment as provided in section 61 of the Civil Service Law. However, a committee on appeals will consider timely appeals where a candidate’s reachability for appointment is affected by the committee’s determination of another appeal.

This resolution eliminates the need to consider examination appeals from candidates who are already eligible for immediate appointment pursuant to the Civil Service Law “rule of three.” Based upon public comments received before adoption of the resolution, the rule provides for continued consideration of timely appeals if candidates’ reachability could be impacted by other pending examination appeals.

Action: The regulation has functioned consistent with the purposes underlying its adoption and the Department recommends continuation without modification.

2009

No current amendments to 4 NYCRR were adopted during 2009.

Various amendments to the Appendices to the Rules for the Classified Service (1999 and 2004)

Appendix 1 (Exempt Class)

Appendix 2 (Non-Competitive Class)

Statutory Authority:

Appendix 1: Civil Service Law, Sections 6 and 41; 4 NYCRR 2.1

Appendix 2: Civil Service Law, Sections 6 and 42; 4 NYCRR 2.2

Description of the regulations:

Civil Service Commission rules relating to the jurisdictional classification of positions were specifically exempted from review under Executive Order 20 by the former Governor’s Office for Regulatory Reform (GORR), upon a finding by GORR that review of such rules lacked substantial benefit.

Based upon this determination, and pursuant to SAPA section 207(5), a recitation of amendments to Appendices 1 and 2 to Title 4 of NYCRR adopted during calendar years 1999, 2004 and 2009 is hereby omitted.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 22, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 22, 2014

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli announced Tuesday, February 18, 2014, the following audits have been issued:

the Tuition Assistance Program;

the Metropolitan Transportation Authority;

the Office of Children and Family Services;

the New York City Department of Education; and

the New York State Health Insurance Program.


DiNapoli: DOT Improperly Paid Employees Working on Tappan Zee Bridge $320,000 for Commuting Expenses

The state Department of Transportation improperly paid nearly $321,000 to eight employees working on the Tappan Zee Bridge project for their commute to work in Tarrytown, even after an internal audit identified it as inappropriate, according to an auditreleased Tuesday, February 18, 2014, by State Comptroller Thomas P. DiNapoli.

DiNapoli: Investment in Rochester Company Returns $6.7 Million to State Pension Fund

5LINX, a telecommunications company located in Rochester, has generated an estimated $6.7 million return, nearly four times the initial investment, and achieved an approximated 21 percent internal rate of return for the New York State Common Retirement Fund (Fund), New York State Comptroller Thomas P. DiNapoli announced Thursday, February 20, 2014. The Fund invested in 5LINX through its In–State Private Equity Program, which seeks profitable investments in New York State–based companies.

DiNapoli: Audit Finds Misuse of Funds in Town of Fishkill

The former recreation director in the town of Fishkill allegedly misused as much as $50,000 generated by the town’s senior center, according to an audit released Friday, February 21, 2014, by State Comptroller Thomas P. DiNapoli. The findings of the Comptroller’s audit and investigation have been referred to Dutchess County District Attorney William V. Grady.

DiNapoli Releases January State Cash Report

State tax collections through the first 10 months of the state’s fiscal year increased 4.2 percent from last year, but were below projections largely due to the timing of Personal Income Tax (PIT) payments, according to the January 2014 cash report released Friday, February 21, 2014, by New York State Comptroller Thomas P. DiNapoli. The Division of the Budget is expected to issue a revised Financial Plan with updated revenue projections next week.
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