An unexcused procedural omission means the Commissioner of Education will not address the merits of an appeal

An unexcused procedural omission means the Commissioner of Education will not address the merits of an appeal

Appeal of Susan Sudano, Decisions of the Commissioner of Education, Decision #Decision 17,078

This decision demonstrates the importance complying with all of the necessary procedural steps when filing an appeal with the Commissioner of Education.

Susan Sudano was a tenured teacher employed in the district in the tenure area of remedial reading. As the result of a position in her tenure area being abolished, Sudano  was "excessed" and her name was placed on a preferred list. Sudano, contending that less senior teachers in her tenure area were retained or appointed from the preferred list, filed an appeal with the Commissioner of Education  seeking reinstatement to her former position. However, the Commissioner never addressed the merits of her complaint as the result of her failing to satisfy a number of procedural requirements.

The first issue addressed by the Commissioner was  Sudano's satisfying the requirement that her appeal must be timely by filing it within 30 days of the date of the decision or the performance of the act complained of unless any delay in meeting this 30-day deadline is excused by the Commissioner "for good cause shown."

In response to the School District's argument that Sudano's appeal was untimely, the Commissioner said that although an appeal must be commenced within the 30-day deadline, earlier Commissioner decisions indicated that "where the alleged wrong is that another teacher has been appointed to a position in violation of the petitioner’s preferred eligibility rights, the petitioner does not become aggrieved until the date that another person commences service in the position at issue." Here the Commissioner said that to the extent that Sudano contends that the School District violated Education Law §3013(3) "by failing to recall her from the preferred eligibility list to vacant positions that were filled by other teachers, her appeal was timely,"  the Commissioner explained that although she agreed with the School District that Sudano was required file her appeal within 30 days of the effective date the position was abolished, there was a "conflict in past Commissioner's decisions" that was resolved in Appeal of Gordon, 53 Ed Dept Rep, Decision No. 16,582. 

In Gordon the Commissioner excused a delay in commencing an appeal within 30 days after the effective date of the abolition of the position and indicated that delays in commencing similar appeals pending on the date of that decision also would be excused where service was made within 30 days of the date on which another teacher commenced service in a position to which the petitioner claimed an entitlement. As Sudano's appeal was pending on the date the Gordon was decided, the Commissioner excuse Sudano's delay in bringing her claim that she was not the least senior teacher in the tenure area of the position abolished, "for the reasons stated in Appeal of Gordon."

However, there were other procedural requirements that had to be satisfied such as personal service of the petition upon each named respondent and, if a school district is named as a respondent, "service upon the school district" was required to be made "personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service."

Further, a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such as a "necessary party." In addition, the Commissioner said that "Joinder requires that an individual be clearly named as a respondent in the caption [of the petition] and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense."

Sudano, however, had "initially failed to properly serve two respondents, Hanwright and Paniccia," said the Commissioner. She then attempted to effect service upon Hanwright and Paniccia, by serving papers upon a “person of suitable age and discretion.”  The affidavits of service, however, did not demonstrate that Sudano made "any diligent attempt" to serve Hanwright and Paniccia personally before resorting to "substitute service."

Although Sudano did effect personal service upon both individuals later, such service was effected more than 30 days after Hanwright and Paniccia began to serve in the positions which Sudano claimed she was entitled by reason of her seniority.  As Sudano "offered no excuse for the delay in effecting personal service and in the absence of evidence of diligent efforts to effect timely personal service," on Hanwright and Panicca, the Commissioner said that she declined to excuse the delay. As a result, neither Hanwright and Panicca had been properly joined as parties in Sudano's appeal.

As to another respondent, D’Esposito, the Commissioner said that Sudano "attempted to effect service by affixing a copy of the petition to the door at a residence presumed to be that of ... D’Esposito." The Commissioner then noted that "The record indicates that there was one prior attempt to serve respondent D’Esposito several hours earlier on that same day" but said that she could not conclude "that two attempts at service, both within hours of each other on the same day, constitute a diligent effort."

Sudano also attempted to serve D'Esposito by mail. However the Commissioner said that "absent evidence of diligent efforts to effect service upon respondent D’Esposito, service by posting or by mail is ineffectual." The Commissioner explained that while the regulation permits service of a petition on a person "of suitable age and discretion" at the respondent’s residence where the respondent cannot be found, "there is no authority for alternative service by mail or by posting, absent express authorization from the Commissioner."

As the Commissioner did not authorize alternative service by mail, and no personal service was made upon D’Esposito, the Commissioner ruled that Sudano's appeal must be dismissed with respect to D’Esposito for improper service.

Turning to another issue, joining necessary parties, the Commissioner said that were she to accept Sudano's argument that four other teachers less senior than she were serving in positions is her tenure area, the employment rights of these four other teachers would be adversely affected were Sudano to prevail in her appeal.  Under these circumstances, theses other teachers were necessary parties and should have been joined and served as such.

Dismissing Sudano's appeal "for failure to join necessary parties,"  and for failing to properly serve other respondents, the Commissioner never reached the merits of her appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17078

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Layoff, Preferred Lists and Reinstatement - A 658 page electronic publication [e-book] focusing on the laws, rules and regulations, and selected court and administrative decisions, concerning the rights of public employees in New York State in the event of a layoff. More information is available on the Internet at: http://nylayoff.blogspot.com/.

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Hearsay testimony may be admitted in evidence in an administrative hearing

Hearsay testimony may be admitted in evidence in an administrative hearing

Demas v City of New York, 2017 NY Slip Op 03267, Appellate Division, First Department

A coach [Coach] of a school basketball team filed an Article 78 petition challenging the unsatisfactory performance rating (U-Rating) he received for the 2012-2013 school year. Supreme Court dismissed Coach's petition and Coach appealed. 

The Appellate Division unanimously affirmed the lower court's ruling, explaining that the determination that Coach's performance was unsatisfactory has a rational basis in the record.

The court said that the record indicated that while under his coaching and supervision, Coach's players "engaged in a pattern of profane and uncontrollable conduct, on and off the court, which included yelling profanities, making offensive hand gestures and aggressively interacting with the crowd during basketball games."

The Appellate Division also noted that on at least one occasion, "security agents had to escort the opposing team from the premises."

One of the issues raised by Coach in his petition was that the hearing officer had relied on "hearsay testimony" in sustaining the U-Rating he was given.

Hearsay testimony is testimony given by an individual who testifies under oath about what he or she has heard from others rather than testifying about that which he or she had personally witnessed. Although typically barred in a criminal trial, hearsay testimony is permitted in an administrative hearing and, if sufficiently relevant and probative, may constitute substantial evidence.*

Citing Paul v NYC Department of Education, 146 AD3d 705, the Appellate Division, rejecting Coach's contention that hearsay testimony should not have been admitted at the hearing, holding that the hearing officer "was entitled to rely on hearsay" in sustaining the U-Rating give Coach.

* In Gray v Adduci, 73 NY2d 741, the Court of Appeals said that it was well established that "hearsay evidence can be the basis of an administrative determination."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03267.htm

A Tweet may constitutes an assault and other electronic triggers resulting in litigation

A Tweet may constitutes an assault and other electronic triggers resulting in litigation

Source: Sui Generis--a New York law blog by Nicole Black  

In this age of voice mail and e-mail, it is relatively easy for an unhappy employee to leave a message for a supervisor and avoid a direct confrontation. As the Tracy decision  [Tracy v Comm. of Labor, App. Div., 256 AD2d 800] indicates,* leaving a “vulgar and threatening message” on a superior’s voice mail will be treated as though the employee had made the offending statements in the supervisor’s presence. Tracy was denied unemployment insurance benefits following her termination after threatening her supervisor.

Nicole Black, Esq., writing in her LawBlog Sui Generis, reports a "tweeting event" that resulted in an individual being arrested and charged with committing a hate crime as the result of the tweeting. Ms. Black reports:

"Sometimes a tweet is just a tweet in the online world, and other times it can amount to an assault in the 'real' world. At least, that’s the difficult lesson learned by John Rayne Rivello, a Maryland man who was indicted in Texas and charged with the hate crime, Aggravated Assault with a Deadly Weapon, in violation of PC 22.02(a)(2)."** The Grand Jury’s indictment alleged that on December 16, 2016, Rivello “intentionally, knowingly, and recklessly caused bodily injury to Kurt Eichenwald, a disabled person…by inducing a seizure with an animated strobe image, knowing that the complainant was susceptible to seizures and that such animations are capable of causing seizures, and said defendant did use and exhibit a deadly weapon, to wit: a Tweet and a Graphics Interchange Format (GIF), and an Electronic Device and Hands, during the commission of the assault…And further that the Defendant did intentionally select said Kurt Eichnewald primarily because of the said Defendant’s prejudice or bias against a group identified by race, ancestry, or religion, namely: persons of Jewish faith or descent.”

Employers have been sued for alleged defamation of an employee founded on postings made on the employer's web site as the decision in Firth v State of New York, 98 NY2d 365, demonstrates.***

The Office of the State Inspector General distributed a report entitled The Best Bang for Their Buck, in which Firth's management style was criticized at a press conference.  On the same day, the State Education Department posted an executive summary of the report with links to the full text of the report on its Government Locator Internet site.

As characterized by the Court of Appeals, the central issue in Firth's appeal concerned how "defamation jurisprudence, developed in New York courts in connection with traditional, i.e., printed, mass media communications, applies to communications in a new medium -- cyberspace -- in the modern Information Age" insofar as the statute of limitations for bringing such a law suit is concerned.

Other examples of such types of litigation include Murphy v Herfort, 140 A.D.2d 415, litigation resulting from communications between administrators, while Missek-Falkoff v Keller, 153 A.D.2d 841, is an example of a case in which one employee sued another employee claiming that the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker constituted libel. 

Allegations of defamation may also arise following an employee's former employer supplying information to a prospective employer concerning the individual in response to a request for "references." Buxton v Plant City, 57 LW 2649, provides an example of this type of complaint.

* See https://publicpersonnellaw.blogspot.com/2010/11/employee-denied-unemployment-insurance.html

** Ms. Black's article is posted on the Internet at:

http://nylawblog.typepad.com/suigeneris/2017/04/when-worlds-collide-a-tweet-constitutes-an-assault.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

*** See https://publicpersonnellaw.blogspot.com/2012/04/allegations-of-defamation-of-employee.html

New York State Comptroller Thomas P. DiNapoli recognizes administrative professionals serving in the Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli recognizes administrative professionals serving in the Office of the State Comptroller

Source: Office of the State Comptroller

Links to the Internet highlighted in COLOR

Honoring OSC's Administrative Professionals

This past week, Comptroller DiNapoli, on behalf of the entire staff, honored and thanked the administrative professionals who work at the Office of the State Comptroller for their hard work and dedication that help this office run effectively and efficiently. Six of these administrative professionals were highlighted on the Comptroller's Facebook page. Pictured, clockwise from top left: Shannon Cirilli, Tori Jones, Donna Reed, Angela Houle, Glory Ciuro and Leah Boggs.

The Department's Facebook page includes updates, photos, event listings and more items readers may find of interest. OSC encourages engagement and feedback, and invites comment and sharing the page with associates, family and friends.

Far Rockaway Pre-School Provider "Investor" Pleads Guilty in Theft of Education Funds Intended for Special Needs Students

New York State Comptroller Thomas P. DiNapoli and Queens District Attorney Richard A. Brown announced that a self-described investor in Island Child Development Center, once one of New York City’s largest providers of special education services to preschoolers with disabilities, has pleaded guilty for his participation in a scheme that stole millions of dollars in city and state funding between 2005 and 2012—money that was intended for special needs students between ages three and five.

Determining an appropriate disciplinary penalty under the circumstances

Determining an appropriate disciplinary penalty "under the circumstances"

King v New York State Off. of Alcoholism and Substance Abuse Servs., 2017 NY Slip Op 03098, Appellate Division, Third Department

Figueroa v New York State Off. of Alcoholism and Substance Abuse Servs., 2017 NY Slip Op 03104, Appellate Division, Third Department

As the Court of Appeals explained in Pell v Board of Education of Union Free School District No. 1 of Towns of Scarsdale and Mamaroneck, 34 NY2d 222, commonly referred to as the "Pell Doctrine," a court may "set aside a determination by an administrative agency only if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." A result is shocking to one's sense of fairness, said the court, when the "sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals."

Both the King and Figueroa decisions address the application of the Pell Doctrine in the context of the loss of a license or certification required to lawfully perform the duties of the position, thereby resulting in the automatic termination of the individual's employment.*

The King Case

King, an Addictions Counselor 2 employed by the Office of Alcoholism and Substance Abuse Services [OASAS), was required to maintain a valid Credentialed Alcoholism and Substance Abuse Counselor [CASAC] certification, which credential is issued by OASAS.

In response to an "official complaint" alleging that King had violated certain ethical provisions prohibiting a counselor from engaging in a sexual relationship or activity with an OASAS client, OASAS notified King of the complaint and his right to an administrative hearing. King elected to exercise his right to the hearing.

The Hearing Officer found that King and the client had a relationship that "far exceeded an appropriate and professional one" and that "it comprised potential, and actual, harm" to the client. The Hearing Officer also found that, while the relationship between King and the client had "sexual overtones," it was "debatable" whether they engaged in an actual sexual encounter. As a penalty, the Hearing Officer recommended a one-year suspension of King's CASAC credential.

The Commissioner of Alcoholism and Substance Abuse Services adopted the Hearing Officer's recommendation and subsequently notified King that his employment was being terminated due to the suspension of his CASAC credential. King initiated a CPLR Article 78 proceeding challenging the suspension of his CASAC credential and the termination of his employment.

The Appellate Division said that judicial review of an agency's administrative determination made following a hearing is limited to determining whether the decision is supported by substantial evidence. The court indicated that "[S]ubstantial evidence consists of proof within the whole record of such quality and quantity as to generate conviction in and persuade a fair and detached fact finder that, from that proof as a premise, a conclusion or ultimate fact may be extracted reasonably ... probatively and logically."

The court ruled that there was substantial evidence to support the suspension of King's CASAC credential, including the client's testimony that King bought her gifts such as "a glass rose and earrings, and they exchanged personal messages and pictures via text messaging." Further, King admitted that he had regular contact with the client that was unrelated to his professional relationship with her. The Appellate Division concluded that in view of this relationship, the administrative decision that King engaged in inappropriate behavior with the client was supported by substantial evidence.

As to the penalty imposed, the suspension of King's CASAC credential and the automatic termination of his employment, the Appellate Division ruled that "[e]ven though there was insufficient evidence to establish that an actual sexual encounter between the client and [King] occurred, in light of [King's] inappropriate behavior ... the penalty of suspending [King's] CASAC credential does not shock one's sense of fairness."

The court also rejected King's argument that he was denied due process because OASAS did not proceed under the disciplinary procedures set forth in the relevant collective bargaining agreement, explaining that in this instance King's termination from OASAS "stemmed from his failure to maintain a qualification critical to his employment and, therefore, the provisions of the collective bargaining agreement did not apply."

The Figueroa Case

Figueroa was also an employee of OASAS, serving in the position of Addictions Counselor I. In accordance with a procedure set out in the relevant Collective Bargaining Agreement, OASAS interrogated Figueroa about her decision to go jogging alone with a patient on five separate occasions. Although Figueroa was not formally disciplined for this conduct, her supervisor issued a counseling memorandum concerning the event.

As an Addictions Counselor I, Figueroa was required to be a CASAC. In the course of a subsequent, unrelated investigation at the facility, Figueroa jogging incident and another incident involving her record keeping activities were raised. As a result OASAS filed two complaints alleging that Figueroa had violated certain CASAC canons of conduct.

After an investigation, OASAS advised Figueroa that it was recommending that her CASAC credential be suspended for three years -- one year for the jogging complaint and two years for the record-keeping complaint. Figueroa requested a hearing on both complaints, which were consolidated and an administrative hearing was held.

The Hearing Officer issued a report finding that Figueroa did engage in the conduct set forth in the two complaints, but recommended lesser penalties — a six-month suspension of Figueroa's CASAC credential for the jogging incident and a reprimand for her record-keeping discrepancies. OASAS issued a final order accepting the Hearing Officer's findings and recommendation with regard to the jogging complaint. As to the record-keeping complaint, OASAS suspended Figueroa's credential for six months — to run concurrently with the six-month suspension for the jogging complaint.

OASAS then advised Figueroa that she was terminated "as a result of [her] failure to maintain a valid, statutorily required qualification for [employment in her] position." Figueroa commenced a CPLR Article 78 proceeding challenging both the suspension of her credential and the determination to terminate her employment based on the suspension.

The Appellate Division said that given Figueroa's concession during the hearing that she went jogging with a patient and postdated certain records, it found that substantial evidence supported the Hearing Officer's determination with respect to the alleged acts of misconduct. Notwithstanding this holding, the court then considered the question of whether OASAS abused its discretion by imposing the concurrent suspensions that effectively compelled Figueroa termination for failing to have a "valid credential" in place.

Applying the Pell Doctrine, the Appellate Division concluded that "[u]nder the circumstances presented, [it found] that OASAS's determination to impose a six-month suspension of [Figueroa's] credential for each of the complaints was disproportionate to the offenses charged."

Due to the unique circumstance that Figueroa was employed by OASAS in a classified position in the Civil Service of the State, the Appellate Division said that OASAS knew that the practical effect of the suspension was that she would be rendered temporarily unqualified to hold her civil service position and, indeed, OASAS summarily dismissed her for failing to maintain her credential. The court concluded that this result makes little sense as:

1. Figueroa had been employed by OASAS as a CASAC for more than six years with no apparent disciplinary record and consistently satisfactory performance reviews;

2. Considering the jogging complaint, there was neither an allegation nor any evidence that Figueroa was engaged in an inappropriate relationship with the patient or that the patient was harmed in any way;

3. OASAS, with full knowledge of the regulations governing CASAC credentials, initially decided to simply counsel Figueroa about the jogging events and Figueroa testified that she did not engage in the same or similar conduct after being counseled;

4. With respect to the record-keeping complaint, when OASAS explained its determination to reject the Hearing Officer's penalty recommendation, it erroneously claimed that the Hearing Officer did not have the authority to recommend the penalty of reprimand;

5. The Hearing Officer noted the uncontroverted evidence was that, in accord with the then prevailing practice, Figueroa's supervisor directed her to postdate the records in question knowing that she was going to be out of the office and it was only after the complaint was lodged was this practice changed; and

6. There was no showing that the agency or the public was harmed or that Figueroa was personally enriched by her conduct.

The Appellate Division said that, in its view, OASAS should not disregard its role as employer where it is exercising its credentialing oversight, but that is essentially what occurred here. As an employer, OASAS chose only to counsel Figueroa, but, as the credentialing authority, it imposed an administrative penalty that mandated her termination, the ultimate disciplinary penalty.

Considering the nature of the misconduct, Figueroa's otherwise satisfactory employment record and the known impact of the penalty imposed, the Appellate Division found that the effective penalty of suspension of Figueroa's credential, which resulted in her termination from her employment, too severe and annulled the imposed the penalty of suspending Figueroa's credential and the resulting termination of her employment.

* With respect to the loss or failure to obtain or renew a required license or permit or certification, courts have viewed such individuals as “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. Common examples include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make a reasonable inquiry to determine if the employee, in fact, possess the required document and thus may lawfully perform the duties of the position. An employee charged with failing to possess such a document required to perform the duties of his or position is only entitled to notice of the allegation and a reasonable opportunity to produce the required document. Relevant court rulings include Fowler v City of Saratoga Springs, 215 A.D.2d 819 (City Engineer lawfully dismissed for failure to obtain his Professional Engineer’s license by a specified date); Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspensions of teachers was lawful upon their teaching licenses expiring); and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator did not suffer unlawfully discrimination when a private sector employer terminated him after his driver’s license was suspended).

The King decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03098.htm

The Figueroa decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03104.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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