Termination for lack of the proper teaching certificate not a disciplinary action requiring “notice and hearing”

Termination for lack of the proper teaching certificate not a disciplinary action requiring “notice and hearing”

2015 NY Slip Op 04732, Appellate Division, First Department

The Appellate Division rejected a teacher’s attempt to have the court annul the Department of Education of the City of New York's (DOE) decision to terminate his employment.

The teacher’s employment had been terminated because of his “failing to maintain minimum qualifications” – his teaching certificate.  The Appellate Division ruled that the teacher had not been terminated for disciplinary reasons* and thus he was not entitled to a hearing pursuant to Education Law §3020-a, citing Matter of NYS Office of Children and Family Services v Lanterman.

In Lanterman, 62 AD3d 1118, affirmed 14 NY3d 275, [Ciparick, J., dissenting] the decision explains that an employee terminated after losing the license required to perform the duties of the position was not entitled to a pre-termination disciplinary hearing because “whether a teacher has the statutorily required qualifications for the position is not a disciplinary matter subject to that provision.”

Rather, said the court, "certification is a statutory prerequisite that an individual is required to have to qualify for a teaching position in the public school system; it has nothing to do with discipline and, as such, is not an issue that is subject to arbitration under [the cited] provision of the [collective bargaining agreement].”

In Lanterman  two state employees had challenged their dismissal because they lacked the credentials required for their jobs. The workers had demanded that the question of whether their dismissals were disciplinary actions should be submitted to arbitration. Here the Court of Appeals, citing Matter of Felix v New York City Dept. of Citywide Admin. Servs. 3 NY3d 498, indicated that dismissals based of the lack of "credentials required for [the] job" clearly were not disciplinary actions and “the [Lanterman plaintiffs'] assertion that they were does not have a relationship with their collective bargaining agreement sufficient to justify arbitration of the issue.”

* The court, noting that DOE’s decision to terminate the individual was based on his lack of a proper teaching certificate was not arbitrary and capricious, observed that the teacher had failed to show that when DOE terminated his employment that he had been “retroactively certified.” This suggests that the employer should make some minimum inquiry concerning the employee's possession of a valid license, certification or other instrument required by statute to lawfully perform the duties of the position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04732.htm

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The date on which an administrative agency's decision became final and binding on the individual triggers the running of the statute of limitations for challenging the determination

The date on which an administrative agency's decision became final and binding on the individual triggers the running of the statute of limitations for challenging the determination

School Adm'rs Assn. of N.Y. State v New York State Dept. of Civ. Serv., 124 AD3d 1174

One of the issues considered by the Appellate Division in this action concerned the timeliness of the challenge to the administrative decision made by the New York State Department of Civil Service [Department], which provided the court with an opportunity to review the question of the triggering of the running of the statute of limitations in terms of the timeliness of challenging an administrative agency’s “final decision.”

The court said that the parties had agree that for the purposes of  prosecuting this combined CPLR Article 78 proceeding and action for declaratory judgment, the four-month statute of limitations set forth in CPLR §217(1) controlled. In addressing this issue the Appellate Division explained:

1. Both the statute and case law make clear that the statute of limitations period for a CPLR Article 78 proceeding begins to run when "the determination to be reviewed becomes final and binding upon the petitioner."

2. Such determination, in turn, "becomes 'final and binding' when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies, whereby:

a.       The agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party." and

 b.      In the context of quasi-legislative determinations such as the one at issue here, actual notice of the challenged determination is not required in order to start the statute of limitations clock; rather, the statute of limitations begins to run once the administrative agency's "definitive position on the issue [becomes] readily ascertainable" to the complaining party.

A May 15, 2012 policy memorandum promulgated by the Department that “redefined the class of employees” eligible to participate in “health insurance buyout programs” offered by the New York State Health Insurance Program [NYSHIP] participating agencies stated that the policy was "effective immediately." While the May 15, 2012 memorandum contained a "grandfather clause" that, in effect, afforded a limited grace period to certain participating agencies with an existing buyout program in place, the Appellate Division said that “the presence of such clause did not render the decision of the Department of Civil Service as to employee eligibility any less final” nor did it render the injury allegedly suffered by individuals subject to its provisions any less concrete.

The Appellate Division concluded that the policy memorandum constituted a "definitive position" on the issue of buyout program eligibility which the Department could not be "significantly ameliorated by further administrative action."

As to the actual date upon which the four-month statute of limitations commenced to run, the court agreed with the Department that the "readily ascertainable" requirement is styled as a constructive notice standard, there by obviating the need for an actual delivery of an “in-hand notice” of the underlying determination to individuals affected by the change.

The Department described its procedure in disseminating its May 15, 2012 policy memorandum as including mailing copies of the policy to the chief executive officers of all NYSHIP participating agencies, as well as to any individual who had requested a copy via the participating agency; posting the memorandum on a website for health benefit administrators and discussing the memorandum at the participating agency regional meetings hosted by the Department of Civil Service in October 2012.

Under these circumstances, said the Appellate Division, it was of the view that a petitioners' claims accrued, and the statute of limitations began to run, upon the effective date of the policy memorandum -- May 15, 2012.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2015/2015_00676.htm

The five most read New York Public Personnel Law postings as of June 12, 2015

The five most read New York Public Personnel Law postings as of June 12, 2015

Click on the "URL" highlighted in color to access the posting

Essentials of the "PickeringBalancing Test”

http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The legal distinction between domicile and residence

http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively

http://publicpersonnellaw.blogspot.com/2010/07/any-administrative-action-in-nature-of.html

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

http://publicpersonnellaw.blogspot.com/2012/02/employees-inability-to-provide.html

 

Two different complaints; two different forums

http://publicpersonnellaw.blogspot.com/2011/12/two-different-complaints-two-different.html

Total number of NYPPL pageviews as of June 12, 2015: 1,000,269 

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 13, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending  June 13, 2015

Click on text highlighted in color  to access the full report

Employee paid for the same "work time" claimed in two different school districts

A Buffalo City School District technician was sentenced June 11, 2015 for claiming simultaneous work hours at two public school districts, according to an audit [see http://www.osc.state.ny.us/localgov/audits/schools/2015/buffalo.pdf] and investigation released by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/061115.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061115release

Comptroller released municipal audits for the following political subdivisions of the State:

Dunham Public Library

http://www.osc.state.ny.us/localgov/audits/libraries/2015/dunham.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Berlin

http://www.osc.state.ny.us/localgov/audits/towns/2015/berlin.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Galen

http://www.osc.state.ny.us/localgov/audits/towns/2015/galen.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Huron

http://www.osc.state.ny.us/localgov/audits/towns/2015/huron.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Inlet

http://www.osc.state.ny.us/localgov/audits/towns/2015/inlet.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Village of Johnson City

http://www.osc.state.ny.us/localgov/audits/villages/2015/johnsoncityjc.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Lake Ronkonkoma Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/lakeronkonkoma.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Louisville

http://www.osc.state.ny.us/localgov/audits/towns/2015/louisville.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Princetown

http://www.osc.state.ny.us/localgov/audits/towns/2015/princetown.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

and the

Town of Virgil

http://www.osc.state.ny.us/localgov/audits/towns/2015/virgil.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Finger Lakes Group Home overpaid for food and supplies

The State’s Office for People with Developmental Disabilities’ Finger Lakes Developmental Disabilities Service Office (DDSO) skirted state procurement laws for more than 1,400 purchases worth more than $1 million, gave one vendor an unfair advantage in obtaining the state’s business and overpaid for hundreds of household items, according to an [see http://www.osc.state.ny.us/audits/allaudits/bseaudits/bse20150612.pdf] released June 12, 2015 by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/061215.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061215release

NYC projects $3 billion surplus for 2015

New York City is projecting a surplus of $3 billion for fiscal year (FY) 2015 and a balanced budget for FY 2016 with relatively small gaps in the following three years, according to a review [see http://www.osc.state.ny.us/osdc/rpt1-2016.pdf] of the city’s updated financial plan released June 8, 2015 by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/060815b.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=060815brelease

OATH pre-hearing discovery procedures

OATH pre-hearing discovery procedures

OATH Index No. 853/15.

In proceedings at OATH, some parties engage in informal discovery, although OATH rules of practice provide broad guidelines for discovery practices.

When a party fails to respond to discovery demands, the opposing party should make a pre-trial motion to compel production to the trial judge as soon as possible. Conversely, an objection to discovery should also be made as soon as possible.

Here, petitioner sought to exclude evidence offered by respondent as a sanction for respondent's failure to timely produce documents in response to reciprocal discovery. Administrative Law Judge Tynia D. Richard found respondent’s production inadequate but declined to impose a sanction because she did not find evidence that the non-compliance was willful. However, counsel was warned that similar conduct could result in sanctions in the future.

Posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15-853.pdf