Probationary employee should be given timely notice of employer’s concerns that the employee’s performance placed continued employment at risk

Probationary employee should be given timely notice of employer’s concerns that the employee’s performance placed continued employment at risk

2015 NY Slip Op 01384, Appellate Division, First Department

A Supreme Court judge denied the petition filed by a guidance counselor [Counselor] seeking to annul her unsatisfactory annual performance rating for the 2011-2012 academic year and her termination of her probationary appointment as a guidance counselor.

The Appellate Division unanimously reversed the Supreme Court’s decision “on the law” and granted Counselor’s petition to annul the unsatisfactory rating, annulled the discontinuance of her probationary employment and remanded the matter to the school district for further proceedings.

The court explained that the record before it demonstrated deficiencies in the performance review process resulting in Counselor’s unsatisfactory rating (U-rating) for the school year 2011-2012 that were not merely technical, but undermined the integrity and fairness of the process.

The Appellate Division said that Counselor had received a satisfactory rating for the 2010-2011 school year. She did not receive the disciplinary letters underlying the U-rating for the 2011-2012 school year until June 20, 2012, at the end of the school year. Further, said the court, Counselor’s receipt of the disciplinary letters was contemporaneous with the issuance of the U-rating and the recommendation of discontinuance of her employment, which the court characterized as providing Counselor with “scant notice of school district’s concerns about [Counselor’s] performance and [thus she] had little opportunity to improve her performance.”

The decision also noted the court’s concern that “Even assuming [Counselor] was aware, via certain email and other correspondence, of the facts and circumstances underlying the respective disciplinary letters” given to her in June 2012,”there is no evidence to suggest that these communications, made in the ordinary course of [Counselor’s] employment as a probationary guidance counselor, would have alerted her that her year-end rating or her employment was at risk. “

The Appellate Division also noted that, considering the range of dates of the incidents referred to in the disciplinary letters, no explanation has been given for the school district’s failure to bring their concerns to Counselor’s attention before June 2012.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01384.htm

Determining tenure areas for teachers and tenure areas for education administrators distinguished

Appeal of Pronti, Decisions of the Commissioner of Education, Decision No. 16,698

Due to financial concerns, the school district sought to consolidate and reorganize administrative duties, resulting in the abolishment of two administrative positions, including one in the tenure area of Director of Special Education, and the approval of the creation of an administrative position in the tenure area of CSE and CPSE Coordinator/K-12 Administrator [Coordinator]. 

The least senior in the tenure area of Director of Special Education, Michelle Pronti, was notified that her employment would be terminated and that her name would be placed on a preferred eligibility list with the right to recall in her tenure area of Director of Special Education.

Contending that the duties of her former position as a Director of Special Education were substantially similar to the duties of the newly-created Coordinator position and therefore she was entitled to be appointed to the newly created t position under her “Preferred Eligibility List [PEL] rights,” Pronti appealed the school board's decision to the Commissioner of Education. 

In support of her claim, Pronti said that that the two positions are in the same broad administrative tenure area and that the school district has not provided evidence that it has established narrow tenure areas.

The school district argued that he newly-created Coordinator position was in the tenure area of CSE and CPSE Coordinator/K-12 Administrator and that Pronti has not served any time in the narrow tenure area of the newly-created Coordinator position and thus “is not entitled to the newly-created position as she does not have tenure within that area.” 

In addition, the school district asserted that “even if the positions were in the same tenure area, [Pronti’s] former Director position and the newly-created position are not similar within the meaning of Education Law §2510 and, therefore, [Pronti] is not entitled to appointment to the newly-created position.”

The Commissioner of Education dismissed Pronti’s appeal noting that “[o]n the record before me, [Pronti] has failed to meet her burden of establishing that the duties of the newly-created position are similar to those of the Director of Special Education, for purposes of Education Law §2510(3)(a). Although there are some common management and supervisory skills required in both positions, the record ... reveals that the newly-created position involves substantially broader responsibilities, skills and experience than the Director of Special Education position....”

The Commissioner explained that:

1. It has been consistently held that, in order to establish entitlement to appointment to a new position, a petitioner must first establish that the two positions are in the same tenure area; a petitioner would therefore have no rights under Education Law §2510(3) to be appointed to the newly-created position if it is in a different tenure area that his or her former position;

2. Unlike tenure areas for educators, there are no clearly defined guidelines or parameters for administrative tenure areas; and

3. A board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas.

Accordingly, said the Commissioner, the party seeking the benefit of a specific tenure area bears the burden of proving its existence and must demonstrate that the board of education has, in fact, established the narrow, specific, tenure area “consciously” and “by design” (id.) and that the employee has been sufficiently alerted to that fact.

Further, Education Law §2510(3)(a), governing the rights of a terminated employee to re-employment, provides, in pertinent part: “If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled.”

Thus, an individual whose position is abolished has reinstatement rights only if the new position is “similar” to the former position. The test to whether the two positions are “similar” is whether more than 50 percent of the duties of the new position are those which were performed by the petitioner in his or her former position and the burden of proving that a majority of the duties of the newly-created position are similar to those of his or her former position is on the petitioner.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16698

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 15, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 15, 2015 
Source: Office of the State Comptroller 

DiNapoli: Fewer School Districts Overriding Tax Cap The number of school districts overriding New York’s property tax cap declined by more than half over the past three fiscal years, dropping from 44 school districts in 2012-13 to only 19 in 2014-15, according to a report issued Wednesday by State Comptroller Thomas P. DiNapoli. The report also found low- and average-need districts were twice as likely to override the tax cap compared to high-need districts. 

NYS Common Retirement Fund Announces Third Quarter Results The New York State Common Retirement Fund’s (Fund) overall return in the third quarter of the state fiscal year 2015 was 1.91 percent for the three-month period ending December 31, 2014, bringing the Fund’s estimated value to $181.7 billion, according to New York State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli and A.G. Schneiderman Announce Sentencing in $200,000 Fraud on Long Island Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Friday announced the sentencing of Charles Angelillo, 41, of Eastport, for his role in a conspiracy to defraud the state of over $200,000 by submitting false invoices over a two year period for HVAC equipment, supplies, and labor. The defendant, who pled guilty last October, must release the state of all obligations for the bogus invoices, refund $10,000 he admits stealing, and is banned from bidding on or receiving public contracts with the state, any municipality, public benefit corporations, or other public body for five years. 

DiNapoli Announces $1.2 Billion in New Commitments to State Pension Fund’s Emerging Manager Program New York State Comptroller Thomas P. DiNapoli announced Friday that the New York State Common Retirement Fund (Fund) has committed an additional $1.2 billion to its emerging manager program, increasing the total commitment to more than $5 billion. The program is designed to help diversify the Fund’s investments and expand its pool of investors. DiNapoli made the announcement at the Fund’s eighth annual Emerging Manager Conference. 

DiNapoli Honored with National Leadership Award New York State Comptroller Thomas P. DiNapoli received the William R. Snodgrass Distinguished Leadership Award from the Association of Government Accountants at a ceremony in Washington, D.C. on Wednesday, Feb. 11. The award is given annually to state government professionals who exemplify and promote excellence in government financial management. 

Comptroller DiNapoli and A.G. Schneiderman Announce Sentencing of Former Met Council Insurance Brokers State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Friday announced that Solomon Ross and William Lieber, former insurance brokers for the Metropolitan Council on Jewish Poverty (“Met Council”), each have been sentenced to five years of probation and will each pay $1.5 million in restitution to Met Council. As part of their sentence, they will also surrender their broker’s licenses to the New York State Department of Financial Services.

A school district active employee and the district’s retired employee must be provided with identical health insurance benefits

A school district active employee and the district’s retired employee must be provided with identical health insurance benefits 
Anderson v Niagara Falls City School Dist., 2015 NY Slip Op 01098, Appellate Division, Fourth Department 

After the Niagara Falls City School District [Niagara Falls] transferred its retirees from a Blue Cross/Blue Shield Traditional Plan [Traditional Plan] to a Blue Cross/Blue Shield Forever Blue Medicare Plan [Forever Blue Plan] the retirees [Anderson] sued contending that the transfer resulted in a reduction in their health insurance benefits while Niagara Falls failed to effectuate a similar reduction in benefits for its active employees.

The relevant collective bargaining agreement [CBA] did not address what kind of health insurance plan would be available to retirees during retirement but prior to July 1, 2011, the Traditional Plan was available to Anderson. After June 30, 2011 Niagara Falls discontinued offering the Traditional Plan to retirees, including Anderson, and transferred its then retired former employees, Anderson included, to the Forever Blue Plan.

Anderson, a pre-July 1, 2011 retiree, alleged that Niagara Falls' actions were arbitrary, capricious, and unlawful, and in violation of Chapter 504 of the Laws of 2009, the so-called moratorium statute,, and sought to compel the School District to make the Traditional Plan available to Niagara Falls retirees once again.

Niagara Falls, on the other hand, contended that the coverage provided under the Forever Blue Plan was the "exact same coverage" as the Traditional Plan, with the exception of "one difference: there was “a minor increase in the co-pays under the new current plan." In order to compensate the retirees for that increase, Niagara Falls would deposit $600 per year into a medical reimbursement account for each retiree, including Anderson.

Supreme Court granted Anderson’s petition in its entirety and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that although Niagara Falls argued that the Anderson did not have a viable cause of action under the moratorium statute, relying on Kolbe v Tibbets, 22 NY3d 340, the Appellate Division rejected its contention indicating that the moratorium statute relied on by the school district “sets a minimum baseline or ‘floor’ for retiree health benefits, and that ‘floor’ is measured by the health insurance benefits received by the school district’s active employees.”

In other words, said the court, “the moratorium statute does not permit an employer to whom the statute applies to provide [its] retirees with lesser health insurance benefits than [its] active employees.”

Anderson alleged that health insurance benefits available to retirees have been diminished below the "floor" of the corresponding benefits for Niagara Falls’ active employees. This, said the court, is the “precise trigger” that permits Anderson to assert a cause of action under the moratorium statute.

Further, said the court, the issue in Kolbe was whether the employer could reduce or eliminate retiree benefits regardless of the language in the governing CBAs, so long as they made the same modification to active employees, and resolving that issue involved an interpretation of the contractual provisions of the governing CBAs. In rejecting the employer’s position in Kolbe, the Court of Appeals held that the moratorium statute was "not meant to eviscerate contractual obligations."

Here, however, Anderson did not allege that Niagara Falls had violated a provision of the CBA and, thus, no issue of contract interpretation is presented here. In Kolbe the petitioners were “attempting to vindicate the negotiated rights bestowed on them in the governing CBAs” while in this action Anderson is attempting to vindicate the rights bestowed on retirees under the moratorium statute.

As to the merits of the Anderson case, the Appellate Division said that Supreme Court “properly determined that [Niagara City School District’s] actions were arbitrary, capricious, and unlawful, and in violation of the moratorium statute, because there was a substantial reduction in health insurance benefits for the retirees or their dependents without a corresponding reduction of benefits for active employees.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01098.htm

2015-2016 Proposed Executive Budget Highlights

2015-2016 Proposed Executive Budget Highlights

Source: Office of the State Comptroller

In a report released February 10, 2015 by State Comptroller Thomas P. DiNapoli, the Comptoller reports that proposed 2015-2016 Executive Budget holds down spending and boosts state reserves, according to. At the same time, the proposed budget increases potential out-year gaps and gives the Executive new latitude to move and spend money outside the formal appropriation process, including billions of dollars in financial settlements.

The General Fund is projected to end state fiscal year (SFY) 2014-15 with a closing balance of $7.8 billion. Excluding settlement revenues, the General Fund is expected to end the year with a balance of nearly $2.4 billion, $313 million higher than anticipated when the budget was enacted in March 2014.

The Division of the Budget (DOB) projects spending from State Operating Funds in the next fiscal year to total just under $94 billion, an increase of 1.7 percent, or $1.6 billion, from SFY 2014-15. Based on these projections, and after adjusting for prepayments and other proposed changes, DiNapoli estimates that spending would increase under the Executive’s proposal by 3.1 percent.

DOB projects budget surpluses in future years, resulting in part from unspecified actions needed to limit annual growth in State Operating Funds expenditures to 2 percent. Based on projections of revenues and disbursements by DOB, and excluding the unspecified savings in State Operating Funds spending, the Comptroller estimates annual out-year gaps averaging nearly $3.3 billion in SFY 2016-17 through SFY 2018-19. These potential gaps are more than one-third larger than estimates based on the SFY 2014-15 Executive Budget.

The Governor’s spending plan raises the allowable amount that can be deposited into the Rainy Day Reserve Fund and allocates $315 million for the Rainy Day Reserve Fund and the Tax Stabilization Reserve Fund. More robust reserves would improve the state’s ability to respond to fiscal emergencies, as DiNapoli has advocated. However, the budget also allows the state to more easily withdraw reserve money and commit it to other purposes.

DOB forecasts that state tax collections will strengthen in SFY 2015-16, with growth of $3.6 billion, or 5.1 percent, compared to expected growth of 1.7 percent in the current fiscal year. The projected increase results primarily from stronger economic growth and an expected rebound in PIT receipts.

The Executive Budget creates a new Capital Projects Fund which could receive a portion of the nearly $5.7 billion in financial settlements. The Executive has identified various projects to be supported by the fund, including transportation infrastructure, a $500 million broadband initiative and funding for farms and agriculture. However, the proposed budget legislation related to the Dedicated Infrastructure Investment Fund (DIIF) would allow the money to be used for virtually any purpose, including operational costs.

DiNapoli’s report notes that the Executive Budget reduces transparency, accountability and oversight in some areas. For example, the proposal lacks individual public school district funding estimates and includes measures to bypass existing statutory provisions that promote integrity in state procurement, including the elimination of competitive bidding, public notice requirements and State Comptroller review in certain instances. Other provisions would blur lines of functions and responsibilities of state agencies and public authorities, expand DOB’s authority to move funds among state agencies and authorities, and authorize expanded access to New Yorkers’ personal information among state agencies.  

The Executive Budget includes a proposal to authorize the use of backdoor borrowing by state public authorities for all or part of the purposes of the Smart Schools Bond Act approved by voters in November 2014. This proposal would allow up to $2 billion in debt to be issued without all of the controls for issuance, structure and retirement that apply to voter-approved G.O. bonds and could result in higher costs to taxpayers.

The report also finds the Executive Budget:

   Proposes to increase education aid by $1.1 billion, or 4.8 percent, but conditions any increase on legislative enactment of certain statutory changes involving teacher evaluations, governance of struggling schools and other matters;

   Projects overall Medicaid spending in New York, including federal funding and local government expenditures, will total more than $62 billion in SFY 2015-16, an increase of 5.6 percent;

    Increases total spending for state economic development programs by nearly 45 percent, primarily reflecting a $585 million increase in capital spending, to just over $2 billion;

   Increases new debt issuances, outstanding debt and annual debt service payments over the five-year Capital Plan period. Available debt capacity under the State’s statutory cap is now projected to reach a low point of $604 million at the end of SFY 2018-19;

   Proposes to reinstate and expand authorization of design-build and other alternative methods of procurement, after the expiration of the Infrastructure Investment Act in December 2014; and

   Proposes a public campaign finance system for elections to statewide offices and the Legislature, starting in 2018.  Funding would be authorized from a proposed new Campaign Finance Fund check-off program and the transfer of Abandoned Property revenue.

For a copy of the report visit: http://www.osc.state.ny.us/reports/budget/2015/review_of_executive_budget_2015.pdf

As chief fiscal officer for the state, the State Comptroller annually examines the Executive Budget proposal and the enacted budget. DiNapoli also issues monthly reports on the state’s cash position.