Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Procedural errors to avoid in an appeal submitted to the Commissioner of Education

Decisions of the Commissioner of Education, Decision No. 17,166

In this appeal the School District contended, among other things, that the Petitioner's application was untimely, constituted a "class appeal," and that the Petition had not been properly verified. In addition, with respect to Petitioner's reply, the School District claimed that it "should not be considered to the extent it raises new assertions or contains new exhibits."

The School District's objection to a "class appeal"

Addressing the issue of a "class appeal", the Commissioner said Petitioner's attempt to bring this appeal on behalf of individuals who “either reside or own properties within" the School District, such an appeal may only be maintained on behalf of a class where [1] the class is so numerous that joinder of all members is impracticable and [2] where all questions of fact and law are common to all members of the class.

The Commissioner denied class status, explaining that other than identifying the proposed class as residents or property owners within the district, Petitioner’s pleadings did not include any allegations meeting the requirements for a class appeal set out in 8 NYCRR §275.2.  In particular, the Commissioner noted that the Petitioner failed to identify the number of class members and offered no explanation of how all questions of fact and law would be common to all residents and property owners of the School District.

The School District's Objection to the verification of the petition

With respect to the School District 's claim that the petition was not properly verified, the Commissioner, citing 8 NYCRR §275.5[a], said that such a petition must be verified by the oath of a petitioner. However, in this instance the petition had been verified by the attorney for the Petitioner and the attorney was not a party to the appeal. Accordingly, said the Commissioner, the verification was improper.

The School District's objection to the Petitioner's reply

As to the School District's objections with respect to Petitioner's reply, the Commissioner said the Petitioner's “Reply Affidavit” included additional facts and exhibits concerning the School District that were not in the petition.

A reply, said the Commissioner, "is not meant to buttress allegations in the petition or to belatedly add assertions that should have been in the petition." Accordingly, the Commissioner said that she would not considered those portions of the reply that contained "new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer" in her review of Petitioner's reply.

Finally, the Commissioner ruled that the petition was timely but that even had not be dismissed on procedural grounds, "it would be dismissed on the merits."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17166

Court of Appeals to determine whether the Taylor Law trumps Second Class Cities Law with respect to negotiating police disciplinary procedures

Court of Appeals to determine whether the Taylor Law trumps Second Class Cities Law with respect to negotiating police disciplinary procedures

Appeal of Matter of City of Schenectady v New York State Pub. Empl. Relations Bd., 136 AD3d 1086

N.B. The Court of Appeals reversed the Appellate Division's ruling in 134 AD3d 1086. See City of Schenectady v New York State Pub. Empl. Relations Bd., 2017 NY Slip Op 07210, Court of Appeals, Decided on October 17, 2017.

The City of Schenectady [Schenectady], under color of §133 of Article 9 of Second Class Cities Law, announced that it would no longer be bound by negotiated police disciplinary procedures then set out in a collective bargaining agreement between Schenectady and the Schenectady Police Benevolent Association [PBA].

PBA filed an improper practice charge with Public Employment Relations Board [PERB] alleging that Schenectady violated Civil Service Law §209-a(1)(d) of the Public Employees' Fair Employment Act [Article 14 of the Civil Service Law], the so-called “Taylor Law," and ultimately the Appellate Division held that the Taylor Law trumps Second Class Cities Law Article 9 with respect to negotiating police disciplinary procedures.* 

Citing 46 PERB 3025, the Appellate Division said "PERB aptly noted in its decision" that §4 of the Second Class Cities Law  states that a provision of this statute  "such as article 9 containing its police disciplinary procedures shall apply only until such provision is superseded pursuant to the municipal home rule law, was superseded pursuant to the former city home rule law or is or was otherwise changed, repealed or superseded pursuant to law" and that such language "reveals a statutorily planned obsolescence for [the Second Class Cities Law] resulting from subsequent enactment of state or local legislation."

Schenectady appealed the Appellate Division's ruling, which appeal was argued before the Court of Appeals on September 6, 2007.

In Town of Wallkill v Civil Serv. Empls. Assn., Inc. (Local 1000, AFSCME, AFLCIO, Town of Wallkill Police Dept. Unit, Orange County Local 836), 19 NY3d 1066, the Court of Appeals said that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town, apparently rejecting characterizing such negotiations as a "non-mandatory subject of collective bargaining" within the meaning of the Taylor Law.**

It should be noted that the State's authority for supplementing, modifying or replacing Civil Service Law §75 disciplinary procedures pursuant agreements negotiated with an  employee  organization  pursuant  to the Taylor Law with respect to State officers and employees of the State as the employer is set out in §76.4 of the Civil Service Law.***

§76.4, however, is silent with respect to authorizing a political subdivision of the State as the employer to negotiate supplementation, modification or replacement of  Civil Service Law §75 in the course of collective bargaining between the political subdivision of the State and  an  employee  organization with respect to the political subdivision's  employees in collective bargaining units pursuant to the Taylor Law.

Typically legislation addressing public officers and employees of the State of New York as the employer with respect to personnel matters such as health insurance does not automatically extend to officers and employees of a political  subdivision of the  State and  a political subdivisions of  the State is typically given the option of electing to extend such personnel matters to its officers and employees.

For example, §161.1 of the Civil Service Law authorizes the president of the New York State Civil Service Commission to establish a health benefit plan, commonly referred to as the New York State Health Insurance Program [NYSHIP], for state officers and employees, retirees and their dependents and the employees, retirees and their dependents of certain other entities such as the Statutory Contract Colleges at Cornell and Alfred Universities.

In contrast, §163.4 of the Civil Service Law permits "[a]ny public authority, public benefit corporation, school district, special district, district corporation, municipal corporation, or other agency, subdivision or quasi-public organization of the state to elect to participate in NYSHIP." This is accomplished by the municipality's governing body adopting a resolution "and, in the case of any municipal  corporation where a resolution of its governing body is required by law  to be approved by any other body or officer, such resolution shall also  be approved by such other body or officer."

How do you think the high court will decide Schenectady's appeal, and why? Will it follow its ruling in Town of Wallkill v Civil Serv. Empls. Assn., Inc., 19 NY3d 1066,**** in which it held that negotiating such disciplinary procedures is a "prohibited subject of collective bargaining" with respect to a town and an employee organization representing the police officers of the town" or will it sustain the ruling of the Appellate Division, holding that the PERB was correct in concluding that Taylor Law trumps the Second Class Cities Law when negotiating police disciplinary procedures are concerned?

* The decision, City of Schenectady v New York State Pub. Empl. Relations Bd., 136 AD3d 1086, posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2016/2016_00729.htm

** NYPPL's summary of this ruling is posted on the Internet at:

https://publicpersonnellaw.blogspot.com/2012/10/negotiating-disciplinary-procedures.html

*** §76.4 provides: Nothing contained in section seventy-five or seventy-six of this chapter shall be construed to repeal or modify any general, special or local law or charter provision relating to the removal or suspension of officers or employees in the competitive class of the civil service of the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter. Where such sections are so supplemented, modified or replaced, any employee against whom charges have been preferred prior to the effective date of such supplementation, modification or replacement shall continue to be subject to the provisions of such sections as in effect on the date such charges were preferred.

**** See, also, Patrolmen's Benevolent Assn. of City of N.Y., Inc. v PERB., in which the Court of Appeals held that "police discipline may not be a subject of collective bargaining under the Taylor Law when the Legislature has expressly committed disciplinary authority over a police department to local officials." posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_02288.htm

Unemployment Insurance Appeal Board may reject an application for unemployment insurance benefits based on its finding the Claimant's employment was terminated due to disqualifying misconduct

Unemployment Insurance Appeal Board may reject an application for unemployment insurance benefits based on its finding the Claimant's employment was terminated due to disqualifying misconduct

2017 NY Slip Op 02109, Appellate Division, Third Department

A Claimant for unemployment insurance benefits appealed a decision of the Unemployment Insurance Appeal Board that found that she was disqualified from receiving unemployment insurance benefits because her employment was terminated due to her misconduct.

Claimant had been found guilty of disciplinary charges filed against her pursuant to §3020-a of the Education Law. The charges alleged that  she had engaged in misconduct, conduct "unbecoming and/or prejudicial," insubordination and violating the employer's rules.

The Department of Education's §3020-a hearing officer found Claimant guilty of the charges and specification filed against and based on the Hearing Officer's findings, Claimant's employment was terminated by her employer.

Claimant then appealed the Unemployment Insurance Appeal Board's decision, challenging the Unemployment Insurance Appeal Board's Hearing Officer's factual and credibility determinations. Essentially Claimant contended that there evidentiary errors were made at the disciplinary hearing.

The Appellate Division, noting that it did not appear that Claimant appealed the §3020-a hearing officer's disciplinary determination, said that her challenges concerning the merits of the disciplinary hearing officer's determination may not be raised in this unemployment insurance proceeding. The court said that the record indicated that Claimant was represented by an attorney at the §3020-a disciplinary hearing and her  attorney "had the opportunity to present evidence and witnesses and to cross-examine the employer's witnesses" in that forum. In addition, Claimant testified at length with regard to the charges and specifications filed against her.

In view of the fact that Claimant had "a full and fair opportunity to litigate the charges of misconduct at that hearing," the Appellate Division said that the Board "properly gave collateral estoppel* effect to the [§3020-a] Hearing Officer's factual determinations." In addition, having taken into account the factual findings concerning Claimant's misconduct, the court said that the Board "was entitled to make its own independent conclusions as to whether [Claimant's] behavior constituted disqualifying misconduct for the purposes of [determining her eligibility for] unemployment insurance benefits."

Finding that the Board's decision to give "collateral estoppel effect" to the factual findings in the disciplinary hearing was not affected by an error in law and its finding that Claimant had committed disqualifying misconduct was supported by substantial evidence, the Appellate Division ruled that it determination would not be disturbed.

* The Doctrine of Collateral Estoppel stands for the proposition that a decision between parties is conclusive as to the issues or controverted points adjudicated by a tribunal having jurisdiction and may not be relitigated by the same parties in a subsequent proceeding involving the same issue or issues in a different forum.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_02109.htm

New York City employee found guilty of used his employer's telephone and computer equipment for his political campaign while at work

New York Cityemployee found guilty of used his employer's telephone for his political campaign while at work

Oberman v New York City Conflicts of Interest Bd., 2017 NY Slip Op 02366, Appellate Division, First Department

Accepting the findings and recommendation of a New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ], the New York City Conflicts of Interest Board found Igor Oberman guilty of having violated New York City Charter §2604(b)(2) and 53 RCNY §1-13(a) and (b), as the result of his using his employer's telephone in connection with his political campaign activities while at work and ordered him to pay a civil penalty of $7,500.* The ALJ, however, found that Oberman's employer failed to prove that he had used the employer's computer during business hours to work on his political campaign. 

§2604(b)(2) provides that "No public servant shall engage in any business, transaction or private employment, or have any financial or other private interest, direct or indirect , which is in conflict with the proper discharge of his or her official duties" while 53 RCNY §1-13(a) and (b), respectively, provide as follows:

   (a) Except as provided in subdivision 3 of this section, it shall be a violation of City Charter §2604(b)(2) for any public servant to pursue personal and private activities during times when the public servant is required to perform services for the City.

   (b) Except as provided in subdivision 3 of this section, it shall be a violation of City Charter §2604(b)(2) for any public servant to use City letterhead, personnel, equipment, resources, or supplies for any non-City purpose.

With respect to the penalty to be recommended by the Administrative Law Judge, Oberman contended that he suffered financial hardship due to his being terminated from his position and his failed run for elected office. The ALJ said that was there no proof with respect to Oberman's claims of financial hardship and opined that Oberman's "good work" in his former employment "is not compelling mitigation." However, said the ALJ, Oberman's "termination from employment should be factored into a penalty determination" and the Board's imposing a $7,500 civil penalty "takes into account the Board’s precedent, the aggravating and mitigating factors, and it comports with the Board’s deterrent function."

Oberman appealed the Board's determination and the penalty it imposed. The Appellate Division unanimously confirmed the Board's ruling

The court held that the Board's determination was supported by substantial evidence and there was no basis to disturb the credibility determinations of the Administrative Law Judge made at the Oberman's administrative hearing. Further, said the Appellate Division, "strong circumstantial evidence" including records of numerous calls involving Oberman's work telephone and donations to Oberman's political campaign raised a reasonable inference that Oberman used his public employer's resources for private purposes, "in violation of Charter §2604(b)(2) and 53 RCNY § 1-13(a) and (b)."

Citing Kelly v Safir, 96 NY2d 32, the Appellate Division held that the penalty was not shockingly disproportionate to the offense "in light of the extent of [Oberman's]  misconduct, the warnings he had received against such misconduct, his failure to accept responsibility, and the high ethical standards to which he was held as an attorney."

* The administrative hearing findings and recommendation of the OATH Administrative Law Judge [OATH Index No. 1657/14]  and the decision of the City of New York Conflicts of Interest Board, COIB Case No. 2013-609, are both posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1657.pdf

The Appellate Division's decision is posted on the Internet at

http://www.nycourts.gov/reporter/3dseries/2017/2017_02366.htm

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