Courts have the power and the duty to make certain that an administrative official or body has not acted in excess of the grant of authority given by statute

Courts have the power and the duty to make certain that an administrative official or body has not acted in excess of the grant of authority given by statute
2015 NY Slip Op 04712, Appellate Division, Third Department

The Civil Service Law §75 hearing officer found the employee [Employee] guilty of two of the three charges of alleged misconduct and recommended that the penalty of termination be imposed. The appointing authority adopted the findings and recommendation of the hearing officer and terminated Employee.

Employee then appealed the appointing authority’s determination to the New York State Civil Service Commission as authorized by Civil Service Law §76(1).* The Commission sustained the appointing authority’s decision and Employee then sought judicial review of the Commission’s decision alleging,  among other things, that “the disciplinary proceedings were untimely." Supreme Court transferred Employee's appeal to the Appellate Division.**

The Commission argued that its determination was not subject to judicial review, citing Civil Service Law §76(3). §76(3), said the Commission, provides that where, as here, an employee has elected to appeal an adverse disciplinary decision by the appointing authority to a State or local civil service commission, "[t]he decision of [the commission] shall be final and conclusive, and not subject to further review in any court."

The Appellate Division, conceding that “Such explicit statutory language” ordinarily bars further appellate review, said it could review the Commission’s ruling as such a “statutory preclusion of all judicial review of the decisions rendered by an administrative agency in every circumstance would constitute a grant of unlimited and potentially arbitrary power too great for the law to countenance,” citing Pan Am. World Airways v New York State Human Rights Appeal Bd., 61 NY2d 542 and Baer v Nyquist, 34 NY2d 291. The court explained that “even when proscribed by statute, judicial review is mandated when constitutional rights are implicated by an administrative decision or ‘when the agency has acted illegally, unconstitutionally, or in excess of its jurisdiction.’"

In this instance Employee, presumably a state employee serving in a position designated managerial or confidential pursuant to Article 14 of the Civil Service Law, the Taylor Law, asserted that the Commission acted in excess of its statutory authority, and thus, its jurisdiction, by sustaining disciplining action taken against her by the appointing authority for conduct that occurred more than one year before the disciplinary proceeding was commenced against her. Such action, argued Employee, was, in violation of the limitations period legislatively established by Civil Service Law §75(4).

The Appellate Division, observing that “[T]he courts have the power and the duty to make certain that [an] administrative official has not acted in excess of the grant of authority given . . . by statute or in disregard of the standard prescribed by the legislature," said that it was persuaded that, in view of the circumstances presented here, "this Court must review the determination to the limited extent of determining whether Commission  acted in excess of its authority by disciplining petitioner for time-barred charges."

The court indicated that the relevant provision in the Civil Service Law barred disciplinary action based on alleged misconduct unless it was commenced within "one year after the occurrence of the alleged incompetency or misconduct complained of and described in the charges," provided, however, the charges of alleged misconduct are subject to an exception provided within the statute, which states that the limitation period does not apply "where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime."

The Commission contended that this statutory exception properly applies in Employee’s situation as she had been charged with conduct which constitutes the crime of official misconduct. Official misconduct is committed "when, with intent to obtain a benefit or deprive another person of a benefit . . . [a public servant] commits an act relating to his [or her] office but constituting an unauthorized exercise of his [or her] official functions, knowing that such act is unauthorized" (Penal Law §195.00 [1]).

The Appellate Division said that the relevant charges brought against Employee “fail to allege that [Employee] acted with the intent to gain a benefit or that she knew that her conduct was unauthorized; both of these mens rea [criminal intent] requirements are essential elements of the crime of official misconduct.” Further, said the court, in determining whether the statutory exception applies only the allegations of misconduct complained of and described in the charges and specifications are considered and the court may not consider any evidentiary proof submitted during later proceedings.

The court then rejected the Commissions argument that a general assertion included elsewhere in the notice of discipline that the misconduct described in the charges violated several criminal statutes, including Penal Law §195.00, cured the deficiency. Accordingly, said the court, “the conduct described in the charge[s] would not, if proven in court, constitute a crime," and thus "the statutory exception does not apply, and the charges are untimely."

The Appellate Division ruled that in affirming the discipline imposed upon Employee for time-barred charges the Commission "acted in excess of the grant of authority given [to it] by statute [and] in disregard of the standard prescribed by the legislature." Accordingly, said the court, the Commission's determination "must be annulled," and the disciplinary charges filed against Employee dismissed as untimely.

* Civil Service Law §76(1), in pertinent part, provides that an individual may appeal an adverse disciplinary determination “either by an application to the state or municipal commission having jurisdiction, or by an application to the court in accordance with the provisions of Article seventy-eight of the civil practice law and rules.”

** See CPLR §7504 [g].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04712.htm

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http://thedisciplinebook.blogspot.com

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Oral and physical abuse of students results in termination of the educator

Oral and physical abuse of students results in termination of the educator
2015 NY Slip Op 04414, Appellate Division, First Department

Supreme Court sustained an arbitration award that found a teacher [Petitioner] guilty of conduct described in the opinion as oral and physical abuse of students and the oral abuse of one student's parent and the imposition of the penalty of termination of the Petitioner's services. The decision notes that such abuse “continued for a period of three academic years, even after several letters were placed in [Petitioner's] file memorializing the complaints.” Also noted was the fact that one such memorial warned that further incidents could lead to Petitioner’s termination.

The Appellate Division unanimously affirmed the Supreme Court’s determination, commenting that “The termination of [Petitioner's] employment does not shock our sense of fairness” in view of what the court described as Petitioner’s not taking responsibility for his actions, repeatedly denying most of the incidents despite corroborating evidence, and has shown no remorse.

The court said that that the hearing officer, after considering Petitioner's long, otherwise satisfactory tenure and the principle of progressive discipline, properly found that Petitioner's repeated misconduct and the several occasions on which he was warned about it “to no avail” rendered imposing the penalty of termination to be appropriate.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04414.htm

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

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli for the Week Ending June 6, 2015 
Click on text highlighted in color to access the report and information

Wallkill Fire District Board Chair charged with stealing $240,00

The chairman of the Wallkill Fire District’s Board of Fire Commissioners was charged Monday morning with stealing nearly $240,000 in a scam that spanned three years, State Comptroller Thomas P. DiNapoli and Ulster County District Attorney Holley Carnright announced. Michael Denardo, 38, of Wallkill, is accused of conning a board member into signing blank checks which he later cashed for personal use. He was arraigned in Shawangunk Town Court.

Posted on the Internet at:

http://www.osc.state.ny.us/press/releases/june15/060115.htm?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060115release

A video about Wallkill and other recent efforts by this office to expose public corruption is posted on the Internet at:

http://www.osc.state.ny.us/investigations/

Former City of Rensselaer Public Works Commissioner found guilt of stealing scrap metal proceeds

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman Wednesday announced the sentencing of Thomas Capuano, the former commissioner of the Department of Public Works (DPW) of the city of Rensselaer, for his role in teaming with two DPW employees to divert $46,000 from the city by pocketing the cash from scrap metals acquired as part of their jobs with the city.

Posted on the Internet at:

http://www.osc.state.ny.us/press/releases/june15/060315b.htm?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315brelease

Municipal Audits posted on the Internet

Hamlin Fire Department,

http://www.osc.state.ny.us/localgov/audits/firedists/2015/hamlin.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease

Islip Terrace Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/islipterrace.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease

Town of Minden

http://www.osc.state.ny.us/localgov/audits/towns/2015/minden.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease

Village of Owego

http://www.osc.state.ny.us/localgov/audits/villages/2015/owego.pdf?utm_source=weeklynews20150607&utm_medium=email&utm_campaign=060315arelease

Taxing Fringe Benefits

Taxing Fringe Benefits

Source: FSLG Newsletter

What: Free Webinar – Taxability of Fringe Benefits Part Three: Other Compensation and Payments to Employees 

When: July 9, 2015; 2 p.m. (Eastern)

How: Register for this event. You will use the same link to attend the event.

Learn about:

• Uniforms and clothing allowances
• Other types of compensation
• Payment of awards and prizes
• Professional licenses and dues

What else: 

Don’t forget to register for the following webinars if you have not already done so:

Backup Withholding and Form 1099 Miscellaneous

• June 25, 2015; 2 p.m. (Eastern)
• Register

Taxability of Fringe Benefits Part Two: Commonly Provided Fringe Benefits

• June 11, 2015; 2 p.m. (Eastern)
• Register

If you have any questions or comments for the IRS please send us an e-mail

Filing a notice of claim required by Education Law §3813(1) not a condition precedent to an action seeking to vindicate a “public interest” in contrast to advancing a private right

Filing a notice of claim required by Education Law §3813(1) not a condition precedent to an action seeking to vindicate a “public interest” in contrast to advancing a private right
2015 NY Slip Op 04675, Court of Appeals

A teacher serving a three-year probationary period [Probationer] was terminated before the end of the probationary period. Probationer brought a CPLR Article 78 proceeding seeking a court order [1] annulling the School District's determination, [2] reinstatement with tenure and [3] back pay.

The School District asked Supreme Court to dismiss Probationer’s petition contending that Probationer had not served a timely notice of claim as required by Education Law §3813(1).

Probationer’s sole argument in opposition to the District’s "affirmative defense" was that such a "[n]otice of [c]laim is not a condition precedent to a special proceeding properly brought pursuant to CPLR [a]rticle 78 seeking judicial enforcement of a legal right derived through enactment of positive law."

Supreme Court agreed with Probationer and directed that the District reinstate Probationer to her position with back pay “pending a hearing to determine whether Probationer was denied tenure and terminated from her probationary employment in bad faith.”

The School District appealed and the Appellate Division reversed the lower court’s determination.

The Appellate Division ruled that the “positive-law exemption” on which Probationer relied “was not relevant to the situation of a probationary teacher seeking to compel a school district to grant tenure.”*

The Appellate Division also commented that in its view Education Law §3813(1) does not apply when a litigant seeks only equitable relief, but observed that Probationer asked for damages in the form of back pay in addition to an equitable remedy and brought the lawsuit “to advance a private right rather than vindicate a public interest.”

The Court of Appeals, after granting Probationer leave to appeal, affirmed the Appellate Division’s ruling, explaining that on appeal to the court Probationer advanced two arguments:

1. The monetary damages that Probationer demands “are merely incidental” to Probationer’s primary claim for equitable relief; and, or,

2. That Probationer seeks to enforce her claim to tenure by estoppel rights.

However, said the Court of Appeals, “Even if the Appellate Division may have considered one or both of these arguments,” Probationer “did not raise them at Supreme Court; therefore, they are unpreserved for our review.”  

* In Sephton v Board of Education of the City of New York, 99 AD2d 509 [appeal denied 62 NY2d 605], the Appellate Division noted that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights,” [citations omitted]. However, said the Sephton court, the Sephton plaintiffs “are seeking to recover back pay due to the allegedly improper restructuring of their salaries. Such a claim seeks vindication of private rights and duties. Thus a [timely §3813(1)] notice of claim was a condition precedent to the maintenance of the action (citations omitted).”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04675.htm