Failure to notify superior of inmate’s not receiving his medication

Failure to notify superior of inmate’s not receiving his medication

OATH Index Nos. 591/14, & 592/14

Two correction officers [COs] were charged with failing to notify their supervisor or medical staff that an inmate had not received his medication.

The inmate had recently been admitted to the double detoxification unit, which is designated for the treatment of inmates experiencing symptoms of alcohol and opiate withdrawal. The COs removed the inmate from a line of inmates waiting to receive detoxification medication after he began to act irrationally and left him in an area away from other inmates for several hours.

The inmate, who did not receive his prescribed dosage of medication, died after a subsequent use of force involving correction officers other than the COs charged in this disciplinary action.

OATH Administrative Law Judge Astrid B. Gloade, sustained the charges that COs' performance was deficient and recommended 20 days' suspension. Dep't of Correction v. Wisher,

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Terminating a “government” retirement plan

Terminating a “government” retirement plan

Source: Employee Plans News, Issue 2014-11, dated August 4, 2014

The Internal Revenue Service August 2014 Issue of Employee Plans News has a number of articles concerning terminating an employee defined retirement plan including the following [Click on the text highlighted in color to access the information posted on the Internet):

Terminating a retirement plan

Plan amendments required before termination

FAQs regarding plan terminations

FAQs regarding partial plan termination

Also considered are Internal Revenue Code Section 401(a)retirement plan established and maintained for the employees of:

• the United States or its agency or instrumentality;
• a state or political subdivision, or its agency or instrumentality; or
• an Indian tribal government or its subdivision, or its agency or instrumentality (participants must substantially perform services essential to governmental functions rather than commercial activities.)

Other types of governmental plans include:

• 403(b) tax-sheltered annuity plans [These plans are also referred to as Tax Deferred Annuity Plans in which participation is typically limited to employees of an educational entity. See, for example, Education Law Article 8-C, SUNY’s Special Annuity Plan];
• 457 deferred compensation plans;
• qualified excess benefit arrangements; and
• Certain grandfathered 401(k) plans adopted by a governmental entity before May 6, 1986.

The IRS will also conduct a “webinar” on August 14, 2014 at 2:00, EDT, focusing on how the IRS defines the date of termination, final funding requirements, Pension Benefit Guaranty Corporation (PBGC) issues, reversions and what is needed in a notice of intent to terminate the plan.
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Teacher evaluation regulations

Teacher evaluation regulations

Source: NYMuniBlog

An article entitled Amendment to Teacher Evaluation Regulations Creates Further Confusion* by Harris Beach attorney Warren H. Richmond was published in the July 30, 2014 edition of the New York Law Journal.

The article discusses "what is purported to be an effort to provide guidance to New York school districts" concerning the termination of probationary teachers in consideration of the state’s recently enacted Annual Professional Performance Review (APPR) statute, Education Law Section 3012-c"

The article is posted on the Internet at: http://www.harrisbeach.com/files/2014/NYLJ%20Richmond%20Teacher%20Evaluation%207%2030%2014%20pdRf.pdf

* See 8 NYCRR 30-2.1(d)

Changing a Connecticut teacher’s professional obligation from full-time to part-time not a “termination” requiring a pre-termination notice and hearing

Changing a Connecticut teacher’s professional obligation from full-time to part-time not a “termination” requiring a pre-termination notice and hearing

Mirabilio v Regional School District 16 [Connecticut], USCA, Second Circuit, Docket #13-4156

A tenured teacher sued the school board alleging that the board had violated her due process rights under the Fourteenth Amendment and Connecticut General Statute §10-151 when it failed to provide her with “notice and a hearing” before reducing her full-time position to a half-time position.

The U.S. Circuit Court of Appeals affirmed the district court's dismissal of her action, ruling that neither notice nor a hearing was required where the change in the teacher’s terms and conditions of employment only involved a reduction in hours and salary as such a change “did not constitute a ‘termination’ under Connecticut law.”

In contrast, the Decision of the Commissioner of Education in the Appeal of Morehouse, Decisions of the Commissioner of Education #13,896, suggests that the change of a position from full-time to half-time creates a layoff situation as the full-time position “is abolished,” which results in the termination of the least senior tenured incumbent.

The Board of Education had reduced Morehouse’s full-time technology teacher position to a half-time position and he continued serving with school district as a half-time technology teacher. Subsequently the half-time position was “taken over” by a BOCES and Morehouse’s half-time position was abolished.

When the school board later announced a vacancy for a full-time technology teacher, Morehouse “made a claim to that position pursuant to Education Law §§2510 and 3013,” contending that his full-time position had been partially abolished and that he was entitled to the position because of his status on the preferred eligible list.

The school district argued that its changing the full-time position to a part-time position did not entitle Morehouse to have his name placed on a preferred eligible list and, in any event, he lost any such right when the program in which he taught was transferred to BOCES pursuant to Education Law §3014-a and he taught full time in that position.

Although the Commissioner dismissed Morehouse’s appeal, the decision points out that   “Assuming, without deciding, that [Morehouse] became entitled to a position on the preferred eligible list as a result of [the school district’s] reduction of his position from full time to half time on June 18, 1992, [Morehouse’s] retirement from the teaching profession at the end of the 1995-1996 school year effectively removed him from such list” [emphasis supplied].

The Commissioner noted that “Neither party has submitted any authority on the precise effect of retirement on one's rights to be continued on a preferred eligible list. I find that retirement should have the same effect as a resignation with acceptance of termination benefits. In this particular case, petitioner changed employers in 1993 pursuant to a statutory provision, worked full time for several years, and then formally retired, apparently without consulting respondent with respect to any effect that his retirement would have on his rights, if any, in the district. These actions amount to a formal, presumably permanent, withdrawal from the teaching profession, and justify respondent's hiring of a different candidate. I also note that 8 NYCRR §80.35(a)(6) restricts the employment of retired person generally to situations where no other qualified person is readily available. This policy would be difficult to advance if retired persons were allowed to remain for extended periods on preferred eligible lists.

The Commissioner then commented “If I were not dismissing on this ground, I would dismiss for petitioner's failure to provide any proof that the position which became available in 1997 was "similar" to the full-time position he previously held. While petitioner alleges such similarity, respondent denies it, and petitioner provides no evidence of similarity."* 

This dicta**generates some speculation that had Morehouse not retired from his position with BOCES, the Commissioner may well have concluded that his rights to reinstatement from the school district’s preferred list for technology teacher may have survived for the seven-year period mandated by law notwithstanding his employment by BOCES.

* In order to establish entitlement to appointment to a new position under §§2510 and 3013, the petitioner must first establish that the two positions are in the same tenure area (see Kelley v. Ambach, 83 AD2d 733);

** The term dictais applied to statements by a judicial or quasi-judicial body that do not embody the resolution or determination of the specific case before the tribunal.

The Mirabilio decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/08e758bb-c3fe-4a57-9dad-3f8086d54045/2/doc/13-4156_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/08e758bb-c3fe-4a57-9dad-3f8086d54045/2/hilite/

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School board’s abolishment of library media specialist positions challenged

School board’s abolishment of library media specialist positions challenged

Appeal to the Commissioner of Education, Appeal #16,631

The School Board abolished six library media specialist positions in the district. One of the media specialists [MS] appealed the Board’s action on behalf of herself and the five other media specialists, alleging that [1] its elementary schools still contain the same library facilities and resources to which elementary students have regular access and [2] the School Board created literacy centers at each of its elementary schools at which each elementary school class receives one reading class per week taught by newly-employed reading teachers and teaching assistants.

Specifically, MS alleged that the Board’s action effectively closed every elementary school library and discontinued the provision of library services, in violation of 8 NYCRR §91.1. As redress, she asked that the Commissioner direct the Board to reinstate her and the other five media specialists to their former positions with back pay and benefits.

Initially the Commissioner observed that “the appeal must be dismissed” for a number of procedural reasons, including:

1. To the extent that MS attempted to assert claims on behalf of “all elementary students” in the district, she lacks standing to do so.  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights.

2. Although MS had standing to bring this appeal on her own behalf to the extent she has been aggrieved by the abolition of her position, the Commissioner explained that she lacked standing to assert the rights of others both with respect to the abolition of the library media specialist positions and to the alleged inadequacy of the school district providing school library services.

3. MS’s appeal failed to join necessary parties, i.e., the least senior of the district’s reading teachers, including, where appropriate, the newly hired reading teachers employed to teach reading classes at the literacy centers in each elementary school. 

The Commissioner then said that “Even if [MS’s] application and appeal were not dismissed on procedural grounds, they would be dismissed on the merits.” 

Explaining that in an appeal to the Commissioner the 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, the Commissioner said that [1] MS failed to establish facts sufficient to warrant the removal of the board and [2] MS failed to articulate any decision, order, rule or regulation of the Board of Regents or the Commissioner of Education that members of the School Board willfully disobeyed.

As to MS’s request that the Commissioner “discipline and/or reprimand members of the district’s staff,” the Commissioner noted that it is a board of education rather than the Commissioner of Education that has the authority to take disciplinary action against a school district employee.

Responding to MS’s request that the Commissioner “conduct and investigation” the Commissioner said that he “lacks the authority to conduct an investigation as requested by MS. Further, an appeal to the Commissioner of Education pursuant to Education Law §310 is appellate in nature and does not provide for investigations.

The Commissioner then dismissed MS’s appeal.

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

http://www.counsel.nysed.gov/Decisions/volume54/d16631