School Board asks the Commissioner of Education to remove the president of the school board from the position

School Board asks the Commissioner of Education to remove the president of the school board from the position

City of Gloversville School Board v Semione, Decisions of the Commissioner of Education, Decision 16,857

In this appeal to the Commissioner of Education the Board of Education Gloversville City School District [Petitioner] sought the removal of Peter Semione  as a board member and president of the school board.

Petitioner’s application was based on allegations that Semione  made inappropriate public and private statements to other board members that Petitioner characterized as having “engaged in a course of conduct which is a distraction to the board and the regular conduct of its business.”

Addressing a number of procedural issues, the Commissioner ruled that the application must be denied as untimely. The Commissioner explained that such an appeal must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown. Further, said the Commissioner, the 30-day limitation period also applies to a removal application made pursuant to Education Law §306.*

Here the specific actions cited by Petitioner in support of its application occurred on two days, August 31 and September 1, 2012.  The affidavit of service indicates the appeal was served on November 27, 2012, beyond the required 30-day period. Although Petitioner cites the service date as November 21, 2012, the Commissioner noted “that date is also outside the required 30-day period.”

Petitioner also asserted that it had to retain outside legal counsel because the school district’s attorney recused himself, thus contributing to the delay.  However, said the Commissioner, Petitioner fails to indicate when that recusal took place, nor is Petitioner’s decision to retain outside counsel, without further details, sufficient to excuse the delay. 

Finally, the Commissioner said that the appeal must also be dismissed as moot, taking judicial notice that respondent Semione is no longer a member of the board and only matters in actual controversy are ripe for appeal, explaining that a decision on a state of facts which no longer exist or which subsequent events have laid to rest will not be addressed.

Turning to the merits of Petitioner’s appeal, the Commissioner said “A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.” Further, said the Commissioner, “Removal may be warranted where a board member's improper conduct occurs during a board meeting and disrupts the meeting or interferes with the board's ability to function.”

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. Noting that Respondent denied engaging in the alleged conduct the Commissioner said that aside from statements set out in its petition, Petitioner failed to submit any supporting affidavits from any board member establishing the facts alleged – that they were harassed or threatened by Respondent or that the board could not function as a result of his alleged conduct. 

In addition, the Commissioner observed that although Semione  may have used profanity in speaking to several board members, “the use of profanity and failure to apologize is not by itself, enough to warrant removal.”

Accordingly, the Commissioner ruled that Petitioner has not carried its burden in establishing the facts on which it bases its application.**

The Commissioner dismissed Petitioner’s application and dismissed the appeal.

* In addition, a removal application may be timely commenced within 30 days of the petitioner’s good faith discovery of the alleged conduct even though the actual conduct occurred more than 30 days before the application was instituted 

** The decision also notes that Petitioner alleged that Respondent had engaged in a willful violation of law warranting removal, i.e., his conduct also constituted Aggravated Harassment in the second degree, as defined in §240.30 of the New York State Penal Law but failed to submit any evidence of pending charges or a conviction against Respondent and has therefore not carried its burden of proof in this regard. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16857

Selected Reports issued by the Office of the State Comptroller during the week ending January 9, 2016

Selected Reports issued by the Office of the State Comptroller during the week ending January 9, 2016

Click on text highlighted in color to access the full report

Former Wallkill fire district chair sentenced in $240,000 theft

State Comptroller Thomas P. DiNapoli reported that on January 8, 2016 former Wallkill Fire District board chair Michael Denardo was sentenced in Ulster County Court for stealing nearly $240,000 from the district. He pleaded guilty to grand larceny in the third degree, a class D felony, and three counts of criminal tax fraud in the fifth degree, a misdemeanor. He was sentenced to 2 1/3 to 7years in prison and to pay $239,622 restitution. 

Denardo;s three-year scam was initially revealed in an audit and investigation by DiNapoli’s office, which found that Denardo convinced the treasurer to give him blank checks and another board member to sign them. He deposited the checks, laundered the money through his wife's account and submitted fake bills to the district.

Ulster County District Attorney Holley Carnright thanked the Comptroller and his staff “for their diligent work on this case [as] a valued partner in our efforts to combat fraud crimes in Ulster County.”

The Comptroller’s audit concluded that Denardo could not have committed his crimes if the fire district board enforced proper controls. DiNapoli recommended that the district. The Fire District officials agreed with the audit findings and submitted a 14-point corrective action plan to the Comptroller’s office.
 
The Comptroller findings and the fire district’s full response are in the final audit report, which can be viewed by clicking on the URL set out below.

http://osc.state.ny.us/localgov/audits/firedists/2016/wallkill.pdf.

Theft of State Pension Benefits
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of Terence Fitzpatrick, 53, of Monmouth County, N.J., following his guilty plea in November 2015 to the crime of Attempted Grand Larceny in the Second Degree, a class D felony, in Albany County Court. Fitzpatrick was sentenced to six months in jail and five years of probation.

http://www.osc.state.ny.us/press/releases/jan16/010716a.htm?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010716arelease

NYC Pre-K Special Education Provider claimed almost $3 million in ineligible expenses
A Brooklyn preschool special education provider, Yeled v’Yalda Early Childhood Center, claimed nearly $3 million in ineligible expenses for reimbursement, according to and audit released by the Comptroller.

http://www.osc.state.ny.us/press/releases/jan16/010616b.htm?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616brelease

 

Municipal Audits Released

Central NY Regional Market Authority – Internal Controls Over Selected Fiscal Operations

http://www.osc.state.ny.us/localgov/audits/schools/2015/piseco.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Town of Coeymans – Financial Condition

http://www.osc.state.ny.us/localgov/audits/towns/2015/coeymans.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

Village of Green Island – Water Fund Financial Condition

http://www.osc.state.ny.us/localgov/audits/villages/2015/greenisland.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

  

Town of Peterburgh - Internal Controls Over Selected Fiscal Operations and the Justice Court

http://www.osc.state.ny.us/localgov/audits/towns/2015/petersburghjc.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

  

Village of Pomona – Financial Condition

http://www.osc.state.ny.us/localgov/audits/villages/2015/pomona.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

Seneca County Industrial Development Agency – Project Approval and Monitoring

http://www.osc.state.ny.us/localgov/audits/ida/2015/senecaco.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616release

School Audits Released

Johnson City Central School District – Financial Condition

http://www.osc.state.ny.us/localgov/audits/schools/2015/johnsoncity.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Kings Park Central School District – Fuel Inventory

http://www.osc.state.ny.us/localgov/audits/schools/2015/kingspark.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Menands Union Free School District - Payroll

http://www.osc.state.ny.us/localgov/audits/schools/2015/menands.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Nanuet Union Free School District – Payroll

http://www.osc.state.ny.us/localgov/audits/schools/2015/menands.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

Piseco Common School District – Claims Auditing
http://www.osc.state.ny.us/localgov/audits/schools/2015/piseco.pdf?utm_source=weeklynews20160110&utm_medium=email&utm_campaign=010616arelease

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Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Injuries sustained by a trainee during a training exercise ruled the result of an accident for the purposes of claiming eligibility for accidental disability retirement benefits

Gakhal v Kelly, 2016 NY Slip Op 00003, Appellate Division, First Department

Supreme Court dismissed Paramjit Gakhal’s Article 78 petition seeking an order annulling the NYC Police Pension Fund’s determination rejecting her application for accidental disability retirement (ADR) benefits.

The Appellate Division, Judge Sweeny dissenting,* reversed the Supreme Court’s determination “on the law” and remanded the matter to the Fund for a “new determination” consistent with the majority’s decision.

Gakhal’s injury occurred on the first day of her learning to ride a motor scooter as part of her normal police training. She lost control of the scooter while navigating on a motor scooter obstacle course and “crashed into a metal barrier at a speed of 40 miles per hour.” The barrier and scooter then both fell on top of Gakhal.

The Appellate Division, noting that an accident for the purposes of claiming eligibility for ADR is defined as a "sudden, fortuitous mischance, unexpected, out of the ordinary, and injurious in impact," and that the commanding officer of the training unit characterized the incident as "unexpected," concluded that Gakhal’s injury was the result of an event that qualified her for ADR benefits.

The court, citing Becker v Ward, 169 AD2d 453, explained that while injuries sustained during routine training exercises typically may not qualify for ADR benefits, ruled that in Gakhal’s case the loss of control of the scooter she was operating, coupled with the scooter's acceleration, “appears to have ‘been sudden and out of the ordinary,’” and remanded the matter to the Fund for a “new determination” consistent with the majority’s decision.

* Judge Sweeny, in his dissent, said “although the commanding officer's subjective observation that the incident was ‘unexpected’ is favorable for [Gakhal], there is credible objective evidence that the incident was not an ‘accident’” and opined that “the Board's determination must stand.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_00003.htm

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Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Minor gaps and errors in the hearing transcript made at an administrative hearing did not preclude meaningful review of the hearing

Faisal v New York State Dept. of Motor Vehs., 2015 NY Slip Op 09431, Appellate Division

Muhammad Faisal brought an Article 78 action to review a determination of the New York State Department of Motor Vehicles Appeals Board confirming a determination of an administrative law judge [ALJ]. The ALJ, after a hearing, found that Faisal violated Vehicle and Traffic Law §1180(d), speeding, and revoked his driver license.

The Appellate Division confirmed the Appeals Board ruling on the merits, explaining that the Board’s determination was supported by substantial evidence.

The court noted that the ALJ had “properly relied on the police witness's testimony concerning his visual estimate of the speed of the petitioner's vehicle as well as the reading of the radar device.”

The Appellate Division noted that there was a significant difference between the posted speed limit, which was 40 miles per hour, and the 70 miles per hour at which the police witness visually estimated the speed of Faisal’s vehicle, an estimation that was promptly confirmed by a radar indication that the actual speed was 71 miles per hour.

In the present action Faisal raised certain evidentiary objections that the court said were not raised at the administrative hearing, “when any alleged error might have been cured” and thus these arguments were unpreserved for review.

Also noted were the alleged “minor gaps and errors in the hearing transcript” but, said the court, such alleged omissions do not preclude meaningful review of the hearing.

Faisal’s petition alleged that a police sergeant was the sole witness at the hearing. In contrast, said the court, there is no indication anywhere in the record that Faisal was sworn in as a witness.

However, even assuming that the transcript of the hearing omits certain unsworn statements supposedly interjected by Faisal at some point during the course of the hearing, as alleged in his affidavit submitted to the Appeals Board, the Appellate Division ruled that those statements would not affect the validity of the determination under review.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09431.htm

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim  

Idolor v Board of Coop. Educ. Servs. of Nassau County, 2015 NY Slip Op 09284, Appellate Division, Second Department

The Board of Cooperative Educational Services of Nassau County [BOCES] filed disciplinary charges against one of its employees, Lucky Idolor. The disciplinary hearing officer found that Idolor was guilty of misconduct and insubordination. BOCES adopted the findings of the hearing officer and dismissed Idolor from his position.

Idolor filed a CPLR Article 78 petition challenging BOCES’ action. BOCES, contending that Idolor petition was untimely because he had failed to comply with the notice of claim requirements set out in Education Law §3813(1), moved to have Idolor’s petition as untimely. Supreme Court granted BOCES’ motion and dismissed Idolor’s petition, whereupon Idolor appealed the Supreme Court’s ruling to the Appellate Division.

The Appellate Division sustained the lower court’s ruling, explaining that the filing of the §3813(1) notice of claim within three months after Idolor’s claim arose was a condition precedent to his bringing a timely Article 78 action, an action in which he petitioned the court for both [1] equitable relief and [2] for damages.

In Sephton v Board of Education of the City of New York, 99 AD2d 509, [motion for leave to appeal denied, 62 NY2d 605], the Sephton court 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.” However, the court said that the Sephton plaintiffs were seeking “to recover back pay due to the allegedly improper restructuring of their salaries,” and “[s]uch a claim seeks vindication of private rights" and a [timely §3813(1)] notice of claim was a condition precedent to the maintenance of their action seeking to recover back pay. Again, in Mills v County of Monroe, 59 NY2d 307, the court ruled that where a plaintiff seeks private relief, damages, or reinstatement to his or her former position, in this instance for alleged unlawful employment discrimination in violation of the Executive Law, the filing of a timely notice of claim was a condition precedent to Mills' maintaining the lawsuit.

However, a timely appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law as the court ruled in Mennella v Uniondale UFSD, App. Div., 2nd Dept., 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602.

 

N.B. Another “statute of limitations” to be remembered: §3020-a.5.a of the Education Law, Appeal, provides as follows: “a. Not later than ten days after receipt of the hearing officer's [§3020-a ] decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding.” Further, subdivision b of §3020-a.5 provides “b. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09284.htm

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