Appeals to the Commissioner of Education seeking to remove members of a Board of Education for alleged misconduct or alleged neglect of duty

Appeals to the Commissioner of Education seeking to remove members of a Board of Education for alleged misconduct or alleged neglect of duty

Decisions of the Commissioner of Education, Decision No. 17,160

Decisions of the Commissioner of Education, Decision No. 17,164

In Decision 17,160, Matter of the Board of Education of the Lindenhurst Union Free School District, the Petitioners alleged that the Board of Education had committed certain “special education violations” constituting a willful violation or neglect of duty under the Education Law and sought their removal from certain members from the Board.

The Board of Education of the Hempstead Union Free School District appeal, Decision No. 17,164, concerned Petitioners seeking the removal of certain board members for alleged acts of misconduct, abuse of power and abuse of public office and the conduct of the board with respect to interviewing of candidates for the position of superintendent of schools. 

The Commissioner dismissed both applications for failure to comply with procedural and  other essential requirements.

The Lindenhurst Appeal

Decisions of the Commissioner of Education, Decision No. 17,160

In Lindenhurst the Commissioner found a number procedural errors and omissions on the part of the Petitioners requiring the dismissal of their appeal including:

1. The Petitioners failed to comply with the requirements of sub-divisions 5 and 6 of §275 of the Commissioner's regulations [8 NYCRR 275]. These provisions required that "all pleadings in an appeal to the Commissioner be verified and that an affidavit of verification be attached thereto" because "Petitioners' reply is not verified as required by §§275.5 and 275.6." When an individual verifies a document, he or she is swearing or acknowledging under penalty of perjury that the facts contained in the document are all true.

2. The Petitioners' application was defective because it failed to name and serve necessary parties. A necessary party is an individual or entity whose rights would be adversely affected by a determination of the matter in favor of a petitioner.

3. The Petitioners' notice of petition was fatally defective as §277.1(b) of the Commissioner’s regulations requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office pursuant to Education Law §306. Petitioners used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.

4. The Petitioners' appeal was untimely filed. An untimely appeal to the Commissioner of Education is one that was not commenced within 30 days from the making of the decision, or the performance of the act or omission complained of, unless such delay is excused by the Commissioner "for good cause shown."

The Commissioner then observed that "Even if the application were not subject to dismissal on procedural grounds, it would be dismissed on the merits, explaining that "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" and the 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 .

On this record, in the words of the Commissioner, Petitioners "have not proven any willful violation or neglect of duty under the Education Law which would warrant removal of the individual respondents from office." Although it has long been held that "that impolite, rude or even aggressive speech is not, by itself, enough to warrant removal ... a single isolated instance of inappropriate or unbecoming speech by a board member is not ordinarily grounds for removal."

However, concluded the Commissioner, while Petitioners failed to proved sufficient grounds for respondents’ removal. the school board is reminded that district residents "have the right to attend board of education meetings and speak about issues of concern, including their views regarding the performance of district staff."

Although the Board contended that one of the Petitioners “repeatedly and unfairly leveled personal insults and accusations” against a school administrator, it does not appear from the record that her comments warranted responses as heated as a respondent's statements that petitioner should be “ashamed” of herself, and that she “embarrassed” herself and reminded the Board members involved that they should "comport [them]selves in the future in a manner befitting holder[s] of public office.”

The Hempstead Union Free School District Appeal

Decisions of the Commissioner of Education, Decision No. 17,164

The Petitioners in this appeal sought a temporary restraining order [TRO] in Supreme Court ex parte* barring the holding a meeting of the Hempstead UFSD Board of Education at the offices of the district’s labor attorney, located outside the school district’s geographic boundaries, would Petitioners contended would be in violation of the Open Meetings Law. The court granted the TRO was granted. 

Contending that certain board members proceeded to hold the meeting in violation of the court-ordered TRO and the Open Meetings Law, Petitioners filed an appeal with the Commissioner and sought "interim relief, in which they sought to restrain the board from taking any actions relating to the interviewing and hiring of a new superintendent of schools pending the outcome of this application and appeal." The Commissioner denied the request for "interim relief."

The Board had asked the Commissioner to dismiss Petitioners' application , contending that [1] the application was untimely, [2] the interim relief requested was moot, [3] Petitioners lack standing to bring this application, and [4] the Petitioners' application must be dismissed for failure to state a claim upon which relief may be granted. 

As to the procedural defects allege by the Board of Education, the Commissioner found that with respect to the Petitioners attempt to use certain events as the basis for its removal application, the application was untimely. However, the Commissioner held that the allegations with respect to the alleged violation of the court-ordered TRO and the Open Meetings Law, the Petitioners' application was, in fact timely "with respect to those alleged violations of law," thus surviving the Board of Educations motion to dismiss this aspect of Petitioners' application.

As to the issue of standing to submit the application to the Commissioner, the Commissioner said as the Petitioners are district residents they have standing to bring a removal proceeding against their elected officials pursuant to Education Law §306 and declined to dismiss the petition for lack of standing.

In its request for relief, Petitioners sought a stay restraining the Board of Education from taking any action "related to the interviewing of candidates, deliberations by the board for the selection of a candidate, and possibly the imminent making of an offer of employment to any candidate for the position of superintendent of schools."  The Commissioner had denied the stay, explaining that "only matters in actual controversy will be considered and the Commissioner will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest."

In this instance Commissioner found that the relevant school year has ended and thus the Petitioners’ request that the "board president for the remainder of 2016-2017 school year" was moot.

The Commissioner then dismissed the Petitioners' application related to Board of Education allegedly violating the Open Meetings Law "for lack of jurisdiction," explaining that with respect to Petitioners allegations that the board violated the Open Meetings Law and a TRO issued in a proceeding in State supreme court alleging violations of the Open Meetings Law, Public Officers Law §107 vests exclusive jurisdiction over complaints alleging such violations in the Supreme and alleged violations of such law "may not be adjudicated in an appeal to the Commissioner."

Finally, the Commissioner noted that "[i]t is well-established that the Commissioner will not render an advisory opinion on an issue before it becomes justiciable." Here, said the Commissioner, "On this record, I cannot find that a proper basis for removal has been proven based on the alleged violation of the ex parte TRO" as the TRO involves claims under the Open Meetings Law over which the Commissioner did not have jurisdiction. Further, a TRO is, by its nature, a temporary non-final order and any violation of a TRO  is enforceable through the court’s civil contempt power.

In any event, the Commissioner said that record before her indicated that no meeting was held in violation of the TRO. The Board of Education had contended that the alleged meeting involving an executive session held to interview candidates for the position of superintendent of schools had been initially delayed, and upon being advised by their attorney that the TRO had not been lifted, the meeting was not held and the Board of Education did not conduct any interviews of candidates for the position.

 

Under these circumstances, and "in the interest of promoting judicial economy," the Commissioner denied Petitioners' application.

* A proceeding before a tribunal is said to be Ex Parte in situations where one or more of the parties involved is not present or is not represented and a decision is made that affects the absent party or parties. Typically the ex parte decision or order is temporary and issued by the tribunal having jurisdiction where time is limited with respect effectively directing or barring the performance of the act or omission in dispute.

The Lindenhurst Union Free School District decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17160

The Hempstead Union Free School District decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17164

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 2, 2017

New York State Comptroller Thomas P. DiNapoli announced the following audits and reports were issued during the week ending September 2, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Town clerk pleads guilty to attempting to increase her ERS retirement benefits 

On August 30, 2017, Springport Town Clerk Deborah Waldron pleaded guilty in Aurelius Town Court to official misconduct and attempted computer trespass, and agreed to resign for her attempts to boost her state retirement benefits by using a town computer, State Comptroller Thomas P. DiNapoli said. 

Waldron, 62, a 25-year town employee, was initially charged in May following an investigation by the Comptroller, New York State Police and the Cayuga County District Attorney’s office. Her actions were exposed during the Comptroller’s review of Springport’s monthly retirement reports. When DiNapoli’s office re-calculated her actual hours and benefits, it prevented Waldron from receiving extra money she did not earn. 

"This case is a warning to any public employee who falsifies retirement records: You are risking arrest and tarnishing your reputation," DiNapoli said. "I hope this case will deter others who attempt to defraud the New York State and Local Retirement System. I thank Cayuga County District Attorney Jon E. Budelmann for partnering with us to protect our retirement system." 

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236. Review prior cases at http://www.osc.state.ny.us/investigations/index.htm.

Employer contributions on behalf of employees will decrease for the State's 2017-2018 fiscal year

Employer contribution rates for the New York State and Local Retirement System (NYSLRS) in State Fiscal Year 2018-19 will decrease from State Fiscal Year 2017-18, New York State Comptroller Thomas P. DiNapoli announced today.

The estimated average contribution rate for the Employees’ Retirement System (ERS) will decrease from 15.3 percent of payroll to 14.9 percent of payroll. The estimated average contribution rate for the Police and Fire Retirement System (PFRS) will decrease from 24.4 percent to 23.5 percent of payroll. 

"We’ve had strong recent investment returns that have helped keep rates stable," DiNapoli said. "Stable rates are very important to our employers and provide the predictability they need to plan for their future budgets. Prudent management helps keep New York State’s pension fund one of the strongest and best funded in the country and allows our public workforce to retire with security."

The investment rate of return was 11.48 percent as of March 31, 2017, the end of the fiscal year for the state pension fund.

Employer rates are determined based on actuarial assumptions recommended by the Retirement System’s Actuary and approved by DiNapoli. A copy of the Actuary’s report can be found here.

In 2015, the Actuary conducted a review of the Systems’ economic and demographic experience for the prior five years. The Actuary proposed assumptions and methods for the actuarial valuations, which were adopted by DiNapoli. Based on that report, DiNapoli lowered the assumed rate of return in 2015 from 7.5 percent to 7 percent. The median assumed rate of return among public pension funds is 7.5, according to a February 2017 brief issued by the National Association of State Retirement Administrators.

In 2012, DiNapoli began providing employers with access to a two-year projection of their annual pension bill six weeks earlier than in previous years. Employers use this projection for preparation of their local budgets.

Projections of required contributions vary by employer depending on factors such as retirement plans, salaries and the distribution of their employees among the six retirement tiers. 

There are more than 3,000 participating employers in ERS and PFRS, and 335 different plan combinations.

Payments based on the new rates are due by Feb. 1, 2019, but may be pre-paid by Dec. 15, 2018.

In April, the Pew Charitable Trusts public policy foundation ranked New York’s pension system as the third best funded retirement system among states.

Read the report, or go to: http://osc.state.ny.us/retire/word_and_pdf_documents/reports/actuarial_assumption/aa_2017.pdf.

See a chart of historical employer contribution rates, visit: http://osc.state.ny.us/pension/images/emplyr_contribution_rates.pdf.
 

A stipulation waiving rights to a disciplinary hearing and agreement to resign from the position may not disqualify the individual for Unemployment Insurance benefits

A stipulation waiving rights to a disciplinary hearing and agreement to resign from the position may not disqualify the individual for Unemployment Insurance benefits

2017 NY Slip Op 05885, Appellate Division, Third Department

As a general rule, a claimant for unemployment insurance benefits who voluntarily leaves his or her employment without good cause or who engages in disqualifying misconduct is ineligible to receive such benefits.

In contrast, courts have held that "[a] claimant who voluntarily leaves his or her position in the face of disciplinary charges may qualify for unemployment benefits if the actions did not amount to misconduct."* Further, as the court ruled in Matter of Oberman [New York City Dept. of Citywide Admin. Servs.—Commissioner of Labor], 143 AD3d 1022, whether a claimant for unemployment insurance benefits has engaged in disqualifying misconduct "is a factual question for the Board to resolve and its determination will not be disturbed if supported by substantial evidence."

In this case the employee [Claimant], who was in the public service, was confronted with various disciplinary charges over a period of time. Ulimately Claimant and the public employer entered into a "stipulation of settlement" resolving the most recent round of alleged disciplinary infractions.** The stipulation provided that Claimant would waive her right to a Civil Service Law §75 disciplinary hearing and would resign from the position by a specified date. In addition, it was stipulated that Claimant "would be allowed to collect her accrued annual leave and, going forward, would receive a 'neutral reference' from the employer."***

Claimant then filed an application for unemployment insurance benefits. The Department of Labor issued initial administrative determinations disqualifying claimant from receiving benefits upon the grounds that she had voluntarily left her employment without good cause or, in the alternative, lost her employment due to misconduct. Claimant appealed the administrative rulings.

An Unemployment Insurance Administrative Law Judge [ALJ] overruled the initial determinations, finding that Claimant "had good cause to separate from her employment and had not otherwise committed disqualifying misconduct." The ALJ also determined that Claimant "had been subject to a hostile work environment."

Ultimately the Unemployment Insurance Appeal Board adopted the ALJ's findings and affirmed the ALJ's decision, rejecting the employer's challenge to the ALJ's ruling granting Claimant unemployment insurance benefits.

The Appellate Division sustained the Board's decision, noting that the stipulation of settlement entered into between Claimant and the employer contained no finding or admission of wrongdoing with respect to the Claimant, holding that the Board credited Claimant's testimony as to the nature of her work environment and her reasons for resigning.

Further, said the court, the Board agreed with the ALJ's findings that Claimant's actions did not rise to the level of disqualifying misconduct but, rather, were undertaken in direct response to her "hostile" and "untenable" work environment — an environment that, in turn, provided her with "a compelling reason for her to resign."

The Appellate Division said that as there was substantial evidence to support the Board's decision regarding Claimant's application for unemployment insurance benefits, "it will not be disturbed notwithstanding the presence of other evidence in the record that could support a contrary conclusion."

* See Matter of Jimenez [New York County Dist. Attorney's Off.—Commissioner of Labor], 20 AD3d 843.

** The stipulation of settlement contained no admission of misconduct, and no finding of wrongdoing on the part of Claimant was made.

*** The decision notes that provided that Claimant would be given a "neutral reference" should a prospective employer contact the agency for such a purpose. In contrast, Education Law §1133.1 provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by Article 23-B of the Education Law in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05885.htm

Filing disciplinary charges against an employee where the absence is due to an injury or disease

Filing disciplinary charges against an employee where the absence is due to an injury or disease

OATH Index No. 648/17

An appointing authority may serve an employee of the State* as the employer  with disciplinary charges alleging he or she is guilty of "excessive absence." It is typically inappropriate to do so, however, when the employee is eligible for Workers' Compensation Leave pursuant to §71 of the Civil Service Law or Leave for Ordinary Disability pursuant to §72 of the Civil Service Law.

Civil Service Law §71 provides for leaves of absence in the event an employee’s injury or disease is “work connected” and is typically referred to as “workers’ compensation leave. §72 of the Civil Service Law provides for leaves in situations where the employee’s injury or disease is not job related and is usually designated “leave for ordinary disability.” §73 of the Civil Service Law provides for the termination of an employee absent on §72 leave while termination of leave in §71 situations is authorized by §71 itself.**

Significantly neither termination pursuant to §71 nor §73 is pejorative in nature and the individual is eligible for reinstatement to his or her former position, or a similar position, upon timely application once the underlying cause of his or her absence abates.

a. Workers’ Compensation Leave, §71 of the Civil Service Law, “stands alone” with respect to placement on such leave and termination from, and subsequent reinstatement following such termination from §71;

b. Civil Service Law §72, Leave for Ordinary Disability, provides for such leave and reinstatement from such leave while §73 of the Civil Service Law provides for termination from a §72 leave and subsequent reinstatement after such termination; and

c. Termination from §71 or §72 leave once the minimum periods of such leaves are satisfied is at the discretion of the appointing authority.

It should be noted that although the employee must be absent on leave pursuant to §72 continuously for period of one year to trigger the appointing authority’s ability to elect to terminate the individual pursuant to §73, the appointing authority may, as an exercise of discretion, terminate an employee absent on §71 Worker’s Compensation Leave after he or she has been absent on such leave due to the same injury or disease for an “accumulative period” of one year or longer.

Further, where an employee is placed on §71 Workers’ Compensation Leave because of a disability resulting from an assault sustained in the course of his or her employment, he or she is entitled to a leave of absence for an “accumulative period” of at least two years.

In any event, neither §71 nor §72 requires the termination of the employee after he or she has been absent for the requisite minimum period of such a leave. Such termination effected as the result of an appointing authority's exercising a right of discretion to do so.

This issue was recently addressed by New York City Office of Administrative Tribunals and Hearings [OATH] Administrative Law Judge Kara J. Miller as the result of a New York City construction worker being charged with incompetence pursuant to §75 of the Civil Service Law due to "excessive absence."

The record, however, established that the employee's absence was due to an occupational injury which resulted in his being "out on worker’s compensation" for more than one year. ALJ Miller recommended that the worker be separated from employment pursuant to Civil Service Law §71 because his extended absence resulted exclusively from an occupational injury.

Indeed, in Gooshaw v Village of Massena, 216 AD2d 819, the Appellate Division said that it is inappropriate to file disciplinary charges against an individual who is unable to report for work because of his or her conceded disability.

* Although not all employees of the State are State officers, all officers of the State are employees of the State.

** See 4 NYCRR 21.3(e) and 4 NYCRR 21.8, both of which apply to employees of the State as an employer. Many local civil service commissions and personnel officers have adopted similar rules or regulations.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-648.pdf

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Applying the doctrine of primary jurisdiction

Applying the Doctrine of Primary Jurisdiction

2017 NY Slip Op 02192, Appellate Division, Fourth Department

In 2003 the petitioner-plaintiff [Petitioner] was notified by her employer,  Erie 2-Chautauqua-Cattaraugus Board of Cooperative Educational Services [BOCES], that her position as a tenured teacher of gifted and talented elementary school students had been abolished. Petitioner's name was then placed on a preferred eligible list for reappointment to the same or a similar position in accordance with Education Law §3013(3)(a).

Petitioner subsequently learned that BOCES had created a teacher position in a universal prekindergarten [UPK] program in one of the BOCES' component school districts. Despite declining offers of that position in December 2007 and June 2008, Petitioner brought this "hybrid plenary action and CPLR Article 78 proceeding"

In her petition-complaint, Petitioner advanced various theories alledging that BOCES violated her "recall from the preferred list" rights under the Education Law and sought "reappointment to the UPK teacher position, with back pay and benefits and restored pension credit, retroactive to 2005," at which time BOCES had allegedly established the UPK position. Supreme Court, after granting Petitioner's motions to reargue, dismissed her petition in its entirety based on the Doctrine of Primary Jurisdiction.* The court had concluded that the issue of whether the former and new positions are similar for the purposes of §3013(3)(a) is for the Commissioner of Education to resolve in the first instance. Petitioner appealed Supreme Court's decision to the Appellate Division.

The Appellate Division sustained the lower court's rulings with respect to Petitioner's motions to reargue, which had been granted, holding that Supreme Court, in the person of the newly assigned Individual Assignment System (IAS) Judge, properly entertained and granted Petitioner's motion for leave to reargue. The Appellate Division then said the Supreme Court, after granting Petitioner motions to reargue, properly dismissed her petition relying on the Doctrine of Primary Jurisdiction.

The Appellate Division explained that in this instance the Commissioner of Education "has the specialized knowledge and expertise" to resolve the factual issue of whether Petitioner's former position with BOCES  as a teacher of gifted and talented elementary school students and the new UPK teacher position are similar within the meaning of §3013(3)(a) of the Education Law.

Citing Hessney v Board of Education of Public Schools of Tarrytowns, 228 AD2d 954, the Appellate Division held that Supreme Court properly dismissed Petitioner's action as she had failed to timely appeal the matter to the Commissioner of Education.

* Applying the Doctrine of Primary Jurisdiction permits a court to refer an issue to an administrative agency for its determination when the issue is within the agency's purview and expertise. Should a party challenge the administrative determination, the administrative agency's decision may be, if timely appealed, addressed by the court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02192.htm