A court’s review of an adverse disciplinary decision promulgated after a hearing is limited to considering whether the determination was based on substantial evidence

A court’s review of an adverse disciplinary decision promulgated after a hearing is limited to  considering whether the determination was based on substantial evidence
2015 NY Slip Op 02963, Appellate Division, Second Department;

2015 NY Slip Op 03040, Appellate Division, First Department

An employee asked the court to review a disciplinary determination by the appointing authority that had adopted the findings and recommendation of a Committee of Aldermen made after a hearing. The Committee had found the employee guilty of two charges of misconduct or insubordination. The  penalty imposed by the appointing authority: termination of employment with the jurisdiction.

The Appellate Division dismissed the employee’s Article 78 petition explaining that the standard of review in an administrative determination made after a trial-type hearing directed by law is limited to considering whether the determination was based on substantial evidence.

The court said that “it is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which testimony to accept and which to reject.” In the event there is conflicting evidence and room for choice exists, a reviewing court may not weigh the evidence or reject the choice made by the administrative agency.

Finding that there was substantial evidence supported the determination of the appointing authority that the employee committed certain acts of misconduct or insubordination, the court sustained the appointing authority’s decision. As to the penalty imposed, dismissal, the Appellate Division said that the penalty did not constitute an abuse of discretion as a matter of law “as it was not so disproportionate to the offenses as to be shocking to one's sense of fairness,” citing Kreisler v NYC Transit Authority, 2 NY3d 775.

Similarly, the Appellate Division affirmed a decision of the New York City Commissioner of Police that found a New York City police officer guilty of various disciplinary charges and dismissed him from employment as a police officer.

The court said that substantial evidence supported the Commissioner’s findings that the officer had [1] engaged in misconduct in two separate incidents and [2] that he gave false statements to the Civilian Complaint Review Board which investigated one of the incidents.

The officer had also admitted that he failed to properly secure his off-duty firearm and that he was in possession of an unregistered weapon belonging to his brother.

Citing Berenhaus v Ward, 70 NY2d 436, the Appellate Division said “There exists no basis to disturb the credibility determinations of the Assistant Deputy Commissioner of Trials” and the penalty imposed, termination of the police officer from his position, did not shock the court’s “sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

These decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02963.htm and:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03040.htm

_____________

A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on

http://booklocker.com/books/7401.html

_____________

Public policy favors the protection of employees’ seniority rights

Public policy favors the protection of employees’ seniority rights

Appeal of Alexander and Gonzalez from action of the Board of Education of the East Ramapo Central School District, Augustina West and Dionne Olamiju regarding termination of employment. Decisions of the Commissioner of Education, Decision No. 16,731

Angela Alexander (Alexander) and Madeline Gonzalez (Gonzalez) appealed the decisions of the Board of Education of the East Ramapo Central School District (Board) to terminate their services as administrators in the course of the abolishment of certain positions. The Commissioner of Education sustained their appeals.

Alexander was granted tenure in the tenure area of “Elementary Assistant Principal,” effective August 19, 2005; Gonzalez was granted tenure in the tenure area of “Elementary Assistant Principal,” effective July 1, 2005.

During the 2011-2012 school year, the school district excessed all elementary assistant principals as well as the two least senior secondary principals, effective June 30, 2012. Alexander and Gonzalez were notified that their positions as Elementary Assistant Principals were abolished and that their employment was terminated effective June 30, 2012. Alexander and Gonzalez filed an Article 78 proceeding in Supreme Court, Rockland County, seeking a determination that they were improperly terminated from their positions as Assistant Principals. Supreme Court dismissed the petition on the grounds that the Commissioner of Education had primary jurisdiction* over the dispute.

Alexander and Gonzalez contended that they hold tenure in the broader “Assistant Principal” tenure area and that the Board wrongfully granted them tenure in the more narrow area of “Elementary Assistant Principal” without their written consent. In addition, they argued that the Board’s decision to excess principals according to their seniority using the narrower tenure area violates applicable law and that they more senior than the two individuals who were continued in service.**

Initially the Commissioner addressed the issue of timeliness of this appeal, explaining that “An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding.” As Alexander and Gonzalez had commenced this appeal within 30 days of the Supreme Court’s decision, the Commissioner ruled the appeal was timely.

Addressing the merits of the appeal, the Commissioner noted that Education Law §3013(2) provides, in pertinent part, that when a position subject to this provision is abolished, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”

Although there are no clearly defined guidelines for determining the parameters of administrative tenure areas, a board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas, the Commissioner noted that “Public policy favors the protection of employees’ seniority rights,” explaining that “As tenure areas narrow, seniority rights become less meaningful” while “As tenure areas broaden, seniority rights take on greater significance.”

Citing Steele v. Bd. of Educ. of the City of New York, 40 NY2d 456, the Commissioner said that where tenure areas have been narrowed the employer must demonstrate that it, in fact, established the narrow, specific, tenure area ‘consciously’ and ‘by design’ and that the employee has been sufficiently alerted to that fact.”

Here the Board carried the burden of proving its intention to create narrower, multiple defined tenure areas for its administrators and that Alexander and Gonzalez were sufficiently alerted to the fact. In order to establish that Alexander and Gonzalez belonged in the tenure areas claimed by the Board, the Commissioner said that Board had to show that it had “adequately demonstrated that at the time of their appointments, the two categories had “traditionally been treated separately” by the district, and that [Alexander and Gonzalez] were ‘sufficiently alerted to the fact [that] they were entering ... entirely separate and independent’ areas, apart from that of the broad ‘Assistant Principal’.”

The Board submitted an affidavit from its Assistant Superintendent of Personnel/Secondary Education and other records indicating that:

1. Since 2000, the district has granted tenure to assistant principals only in the administrative tenure areas of “Secondary Assistant Principal” and “Elementary Assistant Principal.” 

2. Prior to 2000, assistant principals were granted tenure in the following tenure areas: “High School Assistant Principal,” “Junior High School Assistant Principal” and “Elementary Assistant Principal.”

3. A May 2000 agreement between the district and the East Ramapo Building Administrators Association (ERBAA), Alexander's and Gonzalez’s recognized collective bargaining unit, whereby 11 administrative members then serving in the high school assistant principal tenure area and the junior high school assistant principal tenure area agreed to be placed in the new secondary assistant principal tenure area.  

However, said the Commissioner, the 2000 agreement “does not apply to [Alexander and Gonzalez] or the narrower tenure area of ‘Elementary Assistant Principal.’” Accordingly, the Commissioner ruled that the documentation submitted by the Board failed to demonstrate that Alexander and Gonzalez were sufficiently alerted of the district’s alleged determination not grant tenure in the “Assistant Principal” tenure area after 2000. 

Although the Board submitted a copy of a Memorandum of Understanding in which Gonzalez acknowledged she was “serving in the position of Elementary Assistant Principal” and there was an agreement to adjust her salary, the Commissioner said that “nowhere in this document does Gonzalez consent to serving in the ‘Elementary Assistant Principal tenure area’, which is the issue in this case” and that this documentation was “unpersuasive to demonstrate Gonzalez’s consent to change tenure areas."

Viewing the totality of the evidence presented, the Commissioner held that the Board’s actions fail to support a determination that, upon hiring, Alexander or Gonzalez were either apprised that their tenure area would be the “Elementary Assistant Principal” tenure area, or that they acquiesced to placement within a new tenure area. Tenure areas, said the Commissioner, are fixed at the time a person is appointed and cannot be applied retroactively without the person’s consent.  

Noting that the record clearly indicates that Alexander and Gonzalez were appointed to probationary positions in the “Assistant Principal” tenure area the Commissioner said that although Board’s minutes and Notices of Tenure served on Alexander and Gonzalez state that each was appointed to tenure in the “Elementary Assistant Principal” tenure area, the Board has not met its burden of demonstrating that Alexander and Gonzalez were sufficiently alerted to their appointment in the “Elementary Assistant Principal” tenure area at the time of appointment or that they consented to a change in tenure area after such appointment.  

Thus, in abolishing the elementary assistant principal positions, the Board was required to excess the administrator(s) “having the least seniority in the system within the tenure of the position abolished”

The Commissioner then remanded the matter to the Board for a determination of Alexander's and Gonzalez’s seniority rights in the assistant principal tenure area and, based on such seniority, their right to reinstatement in the district as assistant principals on July 1, 2012, in accordance with this decision, including whether Alexander and Gonzalez are entitled to be restored to tenured positions as an “Assistant Principal”, “effective July 1, 2012, with back pay and retroactive benefits.”

* The doctrine of primary jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges the court will stay its consideration of the matter until the relevant administrative agency has applied its expertise to the salient questions [Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147].

** The School District contended that the two retained individuals were sent Notices of Tenure and of Appointment indicating that they received tenure as “Assistant Principals” but were actually tenured as Secondary Assistant Principals.

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

http://www.counsel.nysed.gov/Decisions/volume54/d16731

_____________

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

_____________

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Click on text highlighted in color to access the full report

New York State Comptroller Thomas P. DiNapoli announced his office completed the audits of the following governmental organizations. “In today’s fiscal climate, budget transparency and accountability for our local communities is a top priority,” said DiNapoli. “By auditing municipal finances and operations, my office continues to provide taxpayers the assurance that their money is being spent appropriately and effectively.”

Town of Blooming Grove – Board Oversight Over Recreation Cash Receipts (Orange County)
The board has not adopted comprehensive written policies for departmental cash receipts or implemented procedures to provide guidance for employees when recording transactions to help ensure financial reports are accurate and reliable.

Village of Cayuga Heights – Board Oversight (Tompkins County)
The board did not ensure the village’s accounting records were current, complete and accurate, and that purchases were made in accordance with the procurement policy. The village’s procurement policy is outdated and the current process does not comply with the procedures outlined in the policy.

Greenville Fire District #1 – Board Oversight (Greene County)
District budgets did not include detailed estimates of revenues and did not include estimates of fund balance. Claims were paid prior to board review and did not contain itemized vouchers. Also, the treasurer does not provide budget status reports to the board and there is no independent oversight to ensure that completed bank reconciliations are correct.

Hauppauge Fire District – Mandatory Training and Procurement (Suffolk County)
Three of the district’s five fire commissioners have not attended mandatory training, as required by law. In addition, the district did not always use competitive methods when procuring goods and services, and did not have contracts with all vendors.

Village of Holley – Financial Condition of the Water and Sewer Funds (Orleans County)
The board did not adequately monitor the financial condition of the water and sewer funds. Both funds relied on interfund advances from the general fund to help finance operations. As a result, the water and sewer funds had deficits of $153,000 and $37,000, respectively.

Town of Olean Volunteer Fire Company No. 1 – Controls Over Financial Activities (Cattaraugus County) The treasurer did not maintain appropriate records or provide the board with monthly financial reports. Company members did not maintain records for each activity to show an itemized list of the receipts collected from fund-raising events. Further, board minutes were missing from 14 of the 20 meetings held during the audit period.

Plattsburgh Public Library – Circulation Desk Cash Receipts (Clinton County)
Although the board adopted a circulation policy that contains procedures related to collecting cash receipts, the procedures were insufficient. Procedures did not establish which employees were authorized to collect cash receipts or the processes for determining accountability over cash receipts recorded in the library’s computer system.

Amendments to the Education Law included in the Governor's Budget Bill

Amendments to the Education Law included in the Governor's Budget Bill

2015 Article VII "Language Bills"*

The Governor’s Budget incorporates Senate 2010 [Same as Assembly 3010] which provides for certain changes to §3020-a of the Education Law and other provisions of the Education Law including sections addressing probation and tenure. Below are summaries of selected amendments to the Education Law set out in the bill:

1. Any alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after April 1, 2015 shall provide that all hearings shall be conducted before a single hearing officer and that such a pattern of ineffective teaching or performance shall constitute prima facie evidence of incompetence that can only be rebutted by clear and convincing evidence that the calculation of one or more of the teacher's or principal's underlying composite ratings on the annual professional performance reviews pursuant to §3012-c of the Education Law was fraudulent, and if not successfully rebutted, the finding, absent extraordinary circumstances, shall be just cause for removal.

2. An employee shall be suspended without pay if the employee is charged with misconduct constituting physical or sexual abuse of a student and is suspended pending an expedited hearing, provided that such an employee shall be eligible to receive reimbursement for withheld pay if the hearing officer finds in his or her favor.

3. All hearings commenced by the filing of charges on or after April 1, 2015 shall be heard by a single hearing officer.

4. Full and fair disclosure of the nature of the case and evidence against the employee by the employing board shall be public unless designated to be private at the discretion of the employee.

5. Full and fair disclosure of the witnesses and evidence shall be made by both parties in the manner prescribed in Articles 3 and 4 of the State Administrative Procedure Act.

6. Children shall be permitted to testify through sworn written or video statements.

7. A pattern of ineffective teaching or performance as defined in §30121-c of the Education Law shall constitute prima facie evidence of incompetence that can only be rebutted by clear and convincing evidence that the calculation of one or more of the teacher's or principal's underlying composite ratings on the annual professional performance reviews pursuant to §30121-c was fraudulent, and if not successfully rebutted, the finding, absent extraordinary circumstances, shall be just cause for removal. Nothing in this shall be construed to otherwise limit the defenses which the employee may place before the hearing officer in challenging the allegation of a pattern of ineffective teaching or performance, except that failure of the employing board to rehabilitate the teacher or principal and correct his or her deficiencies shall not be a defense.

8. Where charges of misconduct constituting physical or sexual abuse of a student are brought, the hearing shall be conducted before and by a single hearing officer in an expedited hearing, which shall commence within seven days after the pre-hearing conference and shall be completed within sixty days after the pre-hearing conference. The hearing officer shall establish a hearing schedule at the pre-hearing conference to ensure that the expedited hearing is completed within the required timeframes and to ensure an equitable distribution of days between the employing board and the charged employee. Notwithstanding any other law, rule or regulation to the contrary, no adjournments may be granted that would extend the hearing beyond such sixty days, except as authorized in the Education Law. A hearing officer, upon request, may grant a limited and time specific adjournment that would extend the hearing beyond such sixty days if the hearing officer determines that the delay is attributable to a circumstance or occurrence substantially beyond the control of the requesting party and an injustice would result if the adjournment were not granted.

9. The hearing officer shall adopt the penalty recommended by the employing board except where the hearing officer concludes that the board acted in bad faith or there are extraordinary circumstances in which the recommended penalty would be so disproportionate to the offenses proven as to be shocking to the conscience of the hearing officer.

10. Teachers and all other members of the teaching staff appointed on or after July 1, 2015 shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of five years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years or as a seasonally licensed per session teacher of swimming in day schools who has served in that capacity for a period of two years and has been appointed to teach the same subject in day schools on an annual salary, the teacher shall be appointed for a probationary period of three years; provided, however, that in the case of a teacher who has been appointed on tenure in another school district within the state, the school district where currently employed, or a board of cooperative educational services, and who was not dismissed from such district or board as a result of charges brought pursuant to Education Law §3020-a.1 the teacher shall be appointed for a probationary period of four years. The service of a person appointed to any of such positions may be discontinued at any time during such probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education. Each person who is not to be recommended for appointment on tenure shall be so notified by the superintendent of schools in writing not later than sixty days immediately preceding the expiration of his or her probationary period.

11. Administrators, directors, supervisors, principals and all other members of the supervising staff, except associate, assistant and other superintendents, appointed on or after July 1, 2015 shall be appointed by the board of education, upon the recommendation of the superintendent of schools for a probationary period of five years. The service of a person appointed to any of such positions may be discontinued at any time during the probationary period on the recommendation of the superintendent of schools, by a majority vote of the board of education.

12. If no affirmative action is taken by the board of education to terminate a classroom teacher or building principal, or to approve or deny tenure to a classroom teacher or building principal at the expiration of the probationary period, the classroom teacher or building principal shall remain in probationary status until the end of the school year in which such teacher or principal has received such ratings of effective or highly effective for the five preceding school years, during which time a board of education shall either discontinue the services of such person, deny tenure or approve tenure for those classroom teachers or building principals who otherwise have been found competent, efficient and satisfactory.

13. The board of education may grant tenure contingent upon a classroom teacher's or building principal's receipt of a rating of effective or highly effective in the fifth year, and if such contingency is not met, the grant of tenure shall be void and unenforceable and the teacher's or principal's probationary period shall be extended.

14. Failure to maintain certification as required by this chapter and the regulations of the commissioner of education shall constitute cause for removal.

*  Other "Language Bills"

Public Protection and General Government [S2005-B]

Education, Labor and Family Assistance [S2006-B]

Health and Mental Hygiene [S2006-B]

Transportation, Economic Development and Envioronmental Con. [S2008-B]

Revenue [S2009-B]

Criminal Justice Reform [S2011]

Limit Immunity from Prosecution [S2012]

Due process in cases involving student discipline differs from due process requirements involving the assessment of academic performance

Due process in cases involving student discipline differs from due process requirements involving the assessment of academic performance

2015 NY Slip Op 02775, Appellate Division, Second Department

Shortly before graduation a student [Student] in the nursing program at a Community College (College) was dismissed from the program for alleged academic deficiency. The student was told that she would receive a failing grade in a course and was given the option instead to withdraw from that course and repeat it.

Student declined to withdraw from the course and was dismissed from the program. She sued the College, challenging her dismissal and also sought damages for, among other things, breach of contract and violation of her right to due process.

Supreme Court denied Student’s petition, dismissed the proceeding and Student appealed.

The Appellate Division sustained the Supreme Court ruling explaining that unlike disciplinary action taken against a student, an institution’s assessments of a student's academic performance, whether in the form of particular grades received or measures taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators. According, to preserve the integrity of the credentials conferred by educational institutions, the courts have long been reluctant to intervene in controversies involving purely academic determinations.

The court further explained that although determinations made by educational institutions concerning the academic performance of their students are not completely beyond the scope of judicial review, "that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to Constitution or statute."

In this case, said the court, the Student’s professors at the College “made a substantive evaluation of her academic capabilities, and found that her clinical skills were not sufficient to pass the course.” Further, there was no evidence in the record that the professors' evaluations were made in bad faith or were arbitrary and capricious or irrational, nor was there any evidence of a violation of the New York or United States Constitution, or of any statute.

As to Student’s claim that she was deprived of due process, the Appellate Division commented that the requirements of due process are less stringent when a student is dismissed for academic reasons than when a student is dismissed or suspended for disciplinary reasons. The court found that with respect to academic evaluations, Student was not entitled to a formal hearing, and the procedure utilized by the College was adequate.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02775.htm