An educator who resigned from his or her tenured position is not automatically given tenure status upon his or her subsequently employment by the school district

An educator who resigned from his or her tenured position is not automatically given tenure status upon his or her subsequently employment by the school district

Brennan v City of New York, 2014 NY Slip Op 08905, Appellate Division, First Department

Supreme Court sustained the New York City Department of Education's determination terminating Philomena Brennan employment, and dismissed her petition.

The Appellate Division unanimously affirmed the Supreme Court’s ruling explaining that Brennan’s termination from her position as a probationary teacher was not arbitrary and capricious or contrary to law. Further, said the court, Brennan, as a probationary teacher, was not entitled to a pre-termination hearing pursuant to New York Education Law §3020-a.

Brennan was previously a tenured employee with the City’s Department of Education. However, she had resigned from her employment in June 2007, and thus forfeited her tenure. When she was reemployed by the Department she failed to comply with Chancellor's Regulation C-205(29) which governs withdrawal of a resignation and restoration to tenure. Accordingly, Brennan did not regain her tenured position.

Significantly, the Appellate Division noted that Brennan had filed a written application for reinstatement and the removal of her name from the ineligibility list in 2009. In the course of an earlier Article 78 proceeding involving these actions, commenced in 2010, the court granted ‘s request to have her name removed from the Department’s “ineligible for employment list” but declined to reinstate her tenure until Brennan satisfied the additional steps required for reinstatement.

The Appellate Division said that Brennan “failed to comply with the court's directive and her tenure was not constructively restored by her rehiring.”

As to her removal from her probationary appointment, the court ruled that Brennan has not demonstrated that her unsatisfactory performance rating was arbitrary and capricious or made in bad faith as the Department’s decision was supported by the record based on detailed observation reports by her principal and assistant principal describing her poor performance and her failure to implement “step-by-step strategies for improvement.”

In addition, the Appellate Division commented that Brennan was aware of the stated deficiencies as reflected in the reports of her principal and assistant principal and “{still failed to improve.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08905.htm

A board member’s involvement in the disciplinary process does not automatically require recusal of that individual

A board member’s involvement in the disciplinary process does not automatically require recusal of that individual

2014 NY Slip Op 08892, Appellate Division, Third Department

A former employee of the Madison County Probation Department filed a personnel complaint and threatened litigation regarding actions by her supervisor [Supervisor]. The County Board of Supervisors initiated an investigation and subsequently placed the supervisor on paid administrative leave. Ultimately Supervisor was offered a severance package that included, among other things, six months' pay if she voluntarily resigned. Supervisor rejected the offer the Board brought five disciplinary charges against her pursuant to Civil Service Law §75.

After a hearing the Hearing Officer issued a detailed written decision in which he determined that Supervisor was guilty of the first three charges of misconduct, but that charges four and five had not been proven. As to the penalty to be imposed, the Hearing Officer recommended that Supervisor be terminated from her position.

Two of the members of the Board had disqualified themselves from considering of the Hearing Officer's findings and recommendation because they had participated in the investigation and in the negotiations to have Supervisor. The remaining members of the Board considered the matter over the course of two meetings and ultimately adopted the findings and recommendation of the Hearing Officer and terminated Supervisor.

Supervisor filed a CPLR Article 78 petition seeking a court order annulling the Board’s determination, contending that the Board had prejudged the charges against her and engaged in impermissible ex parte communications regarding the charges filed against her.* 

Supreme Court denied Supervisor’s petition and the Appellate Division sustained the lower court’s determination.

Addressing the propriety of the several Board members in the disciplinary process, the Appellate Division observed that “Involvement in the disciplinary process does not automatically require recusal" and a Board may "serv[e] a dual investigatory and adjudicatory function." However, said the court, “individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer"

In Supervisor’s case, the two members of the Board had disqualified themselves from consideration of the Hearing Officer's recommendation because they had participated in the investigation and the negotiations to have petitioner resign. The remaining members of the Board considered the matter over the course of two meetings and ultimately adopted the Hearing Officer's findings and recommendation.

The Appellate Division held that employing an investigator and being aware of the result of that investigation before bringing charges against Supervisor did not disqualify the entire Board, noting that the two Board members who were actively involved in prehearing matters pertaining to Supervisor did, in fact, disqualify themselves.**

 

The court also noted that a minor amendment was made to the first charge part way through the hearing, and at a time when Supervisor had ample opportunity to respond to the amendment. Accordingly, said the court, this minor change did not deprive her of due process.

Finding that the record contained substantial evidence supporting the Board's determination and that the penalty imposed, termination, does not, under the circumstances, "shock the judicial conscience," the Appellate Division, Justice McCarthy dissenting,*** dismissed Supervisor’s appeal.

* The decision notes that Supervisor made similar allegations in a federal action that she commenced while this disciplinary proceeding was pending, and the defendants in that action successfully moved for summary judgment (2014 WL 2510565, 2014 US Dist Lexis 75882 [ND NY 2014]). 

**  The Appellate Division noted that the Board has a "presumption of integrity" and Supervisor did not overcome that presumption.

***Justice McCarthy voted to annul the Board’s determination, stating that "[W]here, as here, there is evidence indicating that the administrative decision maker may have prejudged the matter at issue, disqualification is required."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08892.htm

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Challenging an arbitration award

Challenging an arbitration award

2014 NY Slip Op 08850, Appellate Division, Second Department

In a proceeding pursuant to CPLR Article 75, the employee petitioned the court to vacate an arbitration award finding that the employer's denial of the employee’s application for tenure did not violate a collective bargaining agreement between the City University of New York (CUNY) and the Professional Staff Congress, CUNY's statement of personnel practices, or CUNY's bylaws. The Supreme Court denied the petition and granted the CCNY’s motion to confirm the award. 

The Appellate Division sustained the lower court’s ruling, explaining a court may vacate an arbitration award pursuant to CPLR 7511(b)(1)(iii) only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power. The employee did not contend that the arbitrator clearly exceeded a specifically enumerated limitation on the arbitrator's power.

Addressing the employee’s contention that the arbitrator's award was irrational, the Appellate Division said that the employee’s claim was without merit as an award is irrational only where there is no proof whatever to justify the award. Here, however, the court found that the arbitrator's award was supported by ample documentary evidence in the record.

The employee also argued that the arbitration award was against public policy. The court said that this argument was, likewise, without merit as an arbitration award violates public policy "only where a court can conclude, without engaging in any extended fact-finding or legal analysis, that a law prohibits the particular matters to be decided by arbitration, or where the award itself violates a well-defined constitutional, statutory, or common law of this state."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08850.htm

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Recent determinations by New York City’s Office of Administrative Trials and Hearing Administrative Law Judges

Recent determinations by New York City’s Office of Administrative Trials and Hearing Administrative Law Judges

Click on material in color to access the full text of the opinion

Off-duty misconduct

A correction officer committed misconduct when she got into an off-duty fight in an optical store;  pulled down a display case, broke mirrors, threw a chair at the optician, advanced toward him while brandishing a piece of broken glass and grabbed the optician in a bear hug. ALJ John B. Spooner recommended that the officer be suspended for 60 days.  Dep't of Correction v. Chapple, OATH Index No. 325/15

Lack of documentation for Emergency Leave

ALJ Kevin F. Casey found that a sanitation supervisor failed to provide proper documentation for emergency leave, was absent without leave, failed to remain accessible for a home visit, and wore unauthorized sneakers on duty. ALJ Casey recommended dismissal of a charge that supervisor was out of residence without authorization while on sick leave. Penalty recommended was 52 days' suspension.  Dep't of Sanitation v. James, OATH Index No. 1789/14 (Oct. 24, 2014), adopted, Comm'r Dec

Insubordination

A supervisor in the Adult Protective Services Unit was charged with insubordination when she failed to conduct six home visits and refused to attend a mandatory forum. ALJ Kara J. Miller found that the charges were proven. Taking into consideration the supervisor’s long tenure and minimal disciplinary history, Judge Miller recommended a penalty of ten days suspension without pay.  Human Resources Admin. v. Brown, OATH Index No. 38/15 (Oct. 3, 2014).

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Status of a public officer upon the expiration of his or her term of office

Status of a public officer upon the expiration of his or her term of office

Auffredou v Board of Trustees of Vil. of Cornwall-on-Hudson, 2014 NY Slip Op 08835, Appellate Division, Second Department

Alleged that improperly removed him from the office of Village Treasurer of the Village of Cornwall-On-Hudson prior to the expiration of his statutory two-year term in violation of Public Officers Law §36, Stephen Auffredou filed a petition pursuant to Article 78 of the CPLR challenging the determination of Village of Cornwall-on-Hudson Mayor Brendan Coyne’s approving the appointment of Jeanne Mahoney to the office of Village Treasurer.

The Appellate Division held that Auffredou had not been removed from office prior to the expiration of his term but rather Mayor Coyne decided not to reappoint him after his term of office had expired and appointed Jeanne Mahoney to the position instead.

This action was consistent with §5 of the Public Officers Law which addresses holding over after expiration of term. §5, in pertinent part, provides that “Every officer except a  judicial officer, a notary public, a commissioner of deeds and an  officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be  abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor.”

The court noted that Jennifer Brow had been appointed to the office of Village Treasurer in July 2009 to serve the remainder of a two-year term of office, which term had commenced on April 6, 2009. Brown, however, resigned from her position prior to the expiration of her two-year term of office and on April 5, 2010, Auffredou was appointed to the vacancy. 

As Brown's term had not expired, Auffredou’s appointment was limited to the balance of Brown's unexpired term pursuant to Public Officers Law §38. Auffredou's term of appointment had expired prior to the challenged administrative determination made on April 18, 2011.

Accordingly, the Appellate Division affirmed the Supreme Court’s dismissal of Auffredou’s petition, ruling that the challenged determination had a rational basis, and was not arbitrary, capricious, or contrary to law. The court explained that the Mayor’s administrative determination was not made after a quasi-judicial evidentiary hearing and thus the standard to be applied was whether the determination was made in violation of lawful procedure, affected by an error of law, arbitrary and capricious, or an abuse of discretion.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2014/2014_08835.htm