Application seeking the removal of an employee of a School District

Application seeking the removal of an employee of a School District

Decisions of the Commissioner of Education, Decision No. 17,274

A resident and taxpayer of the school district petitioned the Commissioner of Education to remove the school district's physical education director and/or athletic director pursuant to §135.4 of the Commissioner’s regulations. 

The Commissioner denied the taxpayer's application, explaining that the Commissioner lacks the authority to grant the relief requested as the individual targeted for removal is an employee, not an officer subject to removal under Education Law §306. 

In the words of the Commissioner: "I lack jurisdiction to do so.  Education Law §306 authorizes the Commissioner to remove school officers under appropriate circumstances.  For purposes of §306, "school officers" include trustees, members of boards of education, clerks, collectors, treasurers, district superintendents, or "other school officer[s]."  An athletic director, however, is a school district employee, not a school officer, and is thus not subject to removal under Education Law §306."

Addressing a number of fatal procedural defects, the Commissioner noted that even if the targeted individual were a school officer subject to her jurisdiction under Education Law §306 the defective notice of petition submitted by the taxpayer would warrant denial of the application. 

The Commissioner further explained that the notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office. In this case, the petitioner failed to give such notice and, instead, used the notice prescribed under 8 NCYRR §275.11(a) for appeals brought pursuant to Education Law §310. 

Further, said the Commissioner, "A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent. It is the notice of petition that alerts a party to the fact that he or she is the subject of removal proceedings, and the failure to comply with 8 NYCRR §277.1(b) necessarily results in a jurisdictional failure and requires dismissal."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17274

Failing to file a timely cause of action bars applying court ordered salary adjustments retroactively

Failing to file a timely cause of action bars applying court ordered salary adjustments retroactively

Quirk v Lippman, 2017 NY Slip Op 08732, Appellate Division, First Department 

The genesis of this action was the Court of Appeals order in O'Neill v Pfau in 2011.*

In O'Neill a group of Suffolk County court officers challenged an administrative order issued in January 2004 that reclassified various court officers' employment titles, affecting their compensation, and an administrative order issued December 22, 2004, that made an upward salary adjustment to those titles, retroactive to January 2004.

The petitioners argued that the effect of applying the December 2004 order retroactively would be to deprive them of a year of continuous service credit to which they otherwise would be entitled.

On April 6, 2005, the court officers received pay checks reflecting the salary adjustments ordered in December 2004, without continuous service credit.

In this decision the Appellate Division considered the issue of demands for retroactive salary adjustments and "prospective relief.

NYSCOA member on whose behalf this action was initiated also had received their first "retroactive" paycheck 2004. They initiated this Article 78 action in January 2015, at which time the four-month statute of limitations had run "long before they commenced this proceeding."

Addressing the merits of the claim, the Appellate Division said "A cause of action challenging an administrative body's payment of salary or pay adjustments accrues when the individual  receives a check or salary payment reflecting the relevant administrative order.

The Appellate Division held that NYSCOA's time-barred claims may not be revived by recourse to equal protection principles and "no toll that exists 'solely to enable aggrieved parties to sit on their existing rights pending the outcome of an early challenge brought by others.'"

Further, said the court, as NYSCOA in this action brought this proceeding nearly 10 years after the four-month statute of limitations had begun to run, it had no more timely cause of action for "prospective" relief than it had for the retroactive pay adjustment NYSCOA sought.

In the words of the court: "Indeed, there is no legal basis for a distinction between "prospective" and "retroactive" relief here. In failing to challenge the administrative order in a timely fashion, NYSCOA  petitioners waived any right to the benefit of legal review of the December [2004} order, whatever its implications for the future."

*  O'Neill v Pfau (31 Misc 3d 184 [Sup Ct, Suffolk County 2011], affd as modified 101 AD3d 731 [2d Dept 2012], affd 23 NY3d 993.

The decision is posted on the Internet at:           

http://www.nycourts.gov/reporter/3dseries/2017/2017_08732.htm

Disclosure of a police officer's disciplinary files are protected by Civil Rights Law §50-a

Disclosure of a police officer's disciplinary files are protected by Civil Rights Law §50-a

Doe v New York City Police Dept., 2017 NY Slip Op 08734, Appellate Division, First Department

"John Doe," a former New York City Police Officer, sued the New York City Police Department seeking to recover damages arising from alleged harassment on the job due to his sexual orientation. Supreme Court rejected Doe's demand for a further deposition of one of his coworkers, a police officer, and the disclosure of the disciplinary files of that officer and another employee of the police department.

Supreme Court denied Doe's requests.

Considering Doe's appeal, the Appellate Division sustained the Supreme Court's decision, explaining that a "police officer's disciplinary files are protected by Civil Rights Law §50-a ... and [Doe] failed to provide a clear showing of facts sufficient to warrant even an in camera review of those records.

§50-a, in pertinent part, provides that " All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces ... shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the department of corrections and community supervision or probation department except as may be mandated by lawful court order.

With respect to obtaining a court order, §50-a further provides that "Prior to issuing such court order the judge must review all such requests and give interested parties the opportunity to be heard. No such order shall issue without a clear showing of facts sufficient to warrant the judge to request records for review [and] after such hearing, the judge concludes there is a sufficient basis he [or she] shall sign an order requiring that the personnel records in question be sealed and sent directly to him [or her]" for review and to make a determination as to whether the records are relevant and material in the action before him. Upon such a finding the court shall make those parts of the record found to be relevant and material available to the persons so requesting."

Further, the Appellate Division noted that "Discovery of the disciplinary file of the other police department employee was not warranted, as she was not similarly situated with [Doe]  and thus is not comparable for the purpose of showing discrimination.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08734.htm

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 15, 2017

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations during the week ending December 15, 2017

Click on text highlighted in color to access the full report

Department of Environmental Conservation (DEC): Collection and Use of Oil Spill Funds (Follow-Up) (2017-F-13)
An initial audit report issued in August 2015 determined that there were weaknesses in DEC’s oversight of Major Oil Storage Facilities (MOSFs) reporting and facility registration, as well as a lack of facility data analysis to identify and correct discrepancies. In a follow-up, auditors found DEC officials have made significant progress in correcting the problems identified in the initial report. The initial report’s four recommendations were implemented.

Department of Health: Medicaid Claims Processing Activity October 1, 2016 Through March 31, 2017 (2016-S-66)
Auditors identified approximately $12.4 million in improper Medicaid payments, including $4.58 million in overpayments for long-stay inpatient claims that were billed at higher levels of care than what was allowed; $2.9 million in overpayments for Comprehensive Psychiatric Emergency Program claims that were billed in excess of permitted limits; and $1.4 million in overpayments for claims that were billed with incorrect information pertaining to other health insurance coverage that recipients had. By the end of the audit fieldwork, about $6.3 million of the overpayments had been recovered.

Department of Health (DOH): Appropriateness of Medicaid Eligibility Determined by the New York State of Health System (NYSOH) (Follow-Up) (2017-F-4)
An initial audit report released in October 2015 found flaws in NYSOH’s eligibility process that resulted in overpayments of about $3.4 million due to enrollments of deceased individuals and continued coverage for individuals who died after enrollment; multiple Client Identification Numbers (CINs) issued to individual recipients; and unreasonably high numbers of CINs issued for expected multiple births per pregnancy. In a follow-up, auditors found DOH made certain improvements to NYSOH and most of the overpayments caused by the enrollment of deceased individuals were recouped. However, further actions are still needed.

Office of Information Technology Services (ITS): Disaster Recovery Planning (2016-S-97)
Auditors found ITS has made some efforts toward disaster recovery planning; however, there is not a complete, functional, and tested disaster recovery plan that covers all aspects of its operations, including the College of Nanoscale Science and Engineering (CSNE) data center and the centralized IT services it provides to the 46 executive agencies. ITS is working on completing a disaster recovery plan for the CNSE data center and anticipates it will be done in late 2018.

Metropolitan Transportation Authority: Long Island Rail Road - Utilization of the Arch Street Yard and Shop Facility (2016-S-78)
Auditors found the facility was never used as intended for the acceptance and inspection of certain train cars. Moreover, except for occasional use of the wheel truing equipment to round off flat spots on rail car wheels, the facility was also not used for periodic inspections or repairs. Since its construction in December 2004, the facility has undergone periods when it was vacant (for over 3.5 years), leased to a vendor to make warranty repairs, and licensed twice; once as a parking lot to accommodate a tenant displaced from an MTA project, and once to a contractor to perform modifications on Metro-North Railroad rail cars. The LIRR incurred costs of $2.43 million to maintain and secure the facility from January 1, 2013 to June 30, 2016.

New York City Department of Housing Preservation and Development: Vacancies at the Clinton Towers Mitchell-Lama Housing Development (2017-N-1)
Vacant apartments at Clinton Towers were often not rented in a timely manner. Auditors found that for the period January 2012 through March 2017, an average of 13 apartments each month had been vacant for over 60 days, resulting in an estimated $740,000 in lost rental revenue. On March 31, 2017, 15 apartments at Clinton Towers had been vacant for more than 60 days, even though there were over 9,000 applicants on the external waiting lists, resulting in approximately $78,000 in lost rental revenue. Eleven of these apartments were vacant for more than six months, including three that had been vacant for more than a year.

State Education Department (SED): The New Interdisciplinary School (NIS), Compliance with the Reimbursable Cost Manual (2017-S-20)
NIS is a not-for-profit special education provider located in Suffolk County providing preschool special education services to children with disabilities who are between three and five years of age. For the two fiscal years ended June 30, 2014 and 2015, auditors identified $119,752 in ineligible costs that NIS reported for state reimbursement. The ineligible costs included: $83,192 in personal service costs and $36,560 in other than personal service costs.

State To Save Millions After Audit Uncovers Unnecessary Medicaid Transportation Costs

New York state’s Medicaid program is expected to save $7.6 million over the next five years as the result of actions taken by the state Department of Health (DOH) after an audit found it had incorrectly paid contractors for transportation management services it shouldn’t have, according to a report released by State Comptroller Thomas P. DiNapoli.

“Thanks to the work of my auditors, the state has tightened oversight of this important service and these changes will save millions of dollars,” DiNapoli said. “The state Department of Health moved quickly to correct these problems, and my office will continue to monitor for overpayments and abuse in the Medicaid system.”  

The Medicaid program provides transportation to medical services for individuals who are unable to obtain their own transportation. DOH contracted with two companies to manage the non-emergency transportation program statewide: LogistiCare Solutions LLC and Medical Answering Services LLC. These companies were reimbursed nearly $180 million over the audit period, January 1, 2013 to December 31, 2016.

DiNapoli’s auditors found that DOH overpaid these contractors more than $6.2 million during the audit period for transportation management services for individuals who were not eligible for these services. In response to the audit, DOH made changes, which are expected to save taxpayers another $7.6 million over the coming years.

Auditors also identified a provider of taxi services that overbilled DOH for tolls. The provider told auditors it charged for tolls based on the cash toll rate instead of the discounted amount it actually paid through its E-ZPass account. During the audit period, the provider billed Medicaid a total of $169,893 for tolls. In response to the work of auditors, the provider informed the Office of the Medicaid Inspector General (OMIG) of the overbilling. At the end of the audit fieldwork, the amount of the overpayment had not yet been determined by the OMIG.

DiNapoli’s auditors also identified another provider of taxi services that did not have supporting documentation for claims totaling about $2.4 million, and four advanced life support first responder (ALSFR) providers that were inappropriately enrolled in Medicaid, resulting in $162,401 in inappropriate payments.

DiNapoli recommended DOH:

● Recover the $6.2 million in contract overpayments to the transportation managers for the period January 2013 to December 2016 and ensure that Medicaid coverage groups are excluded from the monthly recipient counts that are used to pay transportation managers;

● Review the Medicaid payments made to the two taxi providers and recover any improper payments as warranted; and

● Review the Medicaid payments made to the four ALSFR providers and recover overpayments as warranted. Take the necessary corrective steps regarding the four ALSFR providers’ future participation in the Medicaid program, and take steps to ensure that ALSFR companies are not enrolled as Medicaid providers.

DOH’s response is included in the audit.

Read the report, or go to: http://www.osc.state.ny.us/audits/allaudits/093018/16s67.pdf

For access to state and local government spending, public authority financial data and information on 140,000 state contracts, visit Open Book New York. The easy-to-use website was created to promote transparency in government and provide taxpayers with better access to financial data.

Appeal of Richard A. Mikulek regarding the use of library funds, property and staff

Appeal of Richard A. Mikulek regarding the use of library funds, property and staff

Decisions of the Commissioner of Education, Decision No. 17,277

Richard A. Mikulek [Petitioner] appealed certain actions of the Board of Trustees of the Fairport Public Library [Board], alleging the Board had improperly gifted library funds, among other things, to a third party, the "Friends of [the] lFairport Public Library [FFPL].* 

The Commissioner's decision frames the underlying facts as follows: FFPL is an entity whose main purpose is to provide support to the Library in various ways.  At issue in the instant appeal are book sales the FFPL conducts.  The proceeds from these book sales provide a source of funding for various Library activities, programs, and purchases.  The Library apparently maintains bins for its patrons to donate their used books.  These used books are then donated by the Library to the FFPL to be sold at a book sale.  During normal Library business hours, the sale of these books, still located at the Library, are handled by Library staff.

Petitioner and the Board disagreed over the extent to which the Library may make such donations to FFPL and the bounds of a permissible relationship between the Library and FFPL.

The Commissioner, after setting out an extensive background statement concerning the positions of the parties, said that "[t]he appeal must be dismissed for failure to join a necessary party."  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner, here FFPL, was a necessary party but was not joined as such.

Addressing additional procedural infirmities, the Commissioner said:

1. To the extent Petitioner requests the removal of trustees through an order requiring their resignation, such a claim must be dismissed for lack of subject matter jurisdiction.  Education Law §306 authorizes the Commissioner of Education to remove members of a board of education, superintendents and other school officers for willful violations of law or neglect of duty.  A public library trustee is not a “school officer” as defined in Education Law §2(13), and such a trustee is not among the officers listed in §306. Therefore, such a trustee is not subject to removal by the Commissioner pursuant to Education Law §306.

2. Petitioner also asked that the Commissioner order a “full audit” of the Library’s financial records by an independent auditor who will make a presentation to the community on the his/her findings in a public forum prior to next year’s budget."  However, an appeal to the Commissioner is appellate in nature and does not provide for investigations.

3. As to Petitioner's requesting several advisory opinions based on Education Law §226(6) and its impact on the actions of the Board and the FFPL, including the Library donations of surplus books to a not-for-profit which shares the Library’s website; the ownership of donations that are received from the Library; and whether discussion of FFPL business at Library board meetings causes it to become “associated” with the Library and no longer an independent non-for-profit corporation, "[i]t is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310." Thus, such requests for advisory opinions must be denied.

That said, the Commissioner addressed Petitioner's claims that the Board continues to allow the FFPL to use Library resources, including its facilities and books received from the Library, and continues to allow the use of its communications facilities and employees to further the book sales conducted by the FFLP and alleges that in so doing, the Library violates the prohibition in New York State Constitution, Article VIII §1 of the "gift-giving" public monies.

The Commissioner declined  to dismiss the appeal to the extent Petitioner "seeks an order directing [the Board] to cease allowing the use of its resources by the FFPL because it allegedly involves an unconstitutional gift," noting that "Even if the appeal were not dismissed for non-joinder of the FFPL as a necessary party, it would be dismissed on the merits."

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 the petitioner seeks relief. On this record, said the Commissioner, "I find that Petitioner has not met his burden of proving that [the Board] has violated Article VIII, §1 of the New York State Constitution, or any other provision of law, with respect to the book sales by the FFPL.

The Commissioner cited Chapter 96 of the Laws of 1987, which, among other things, amended Education Law §226(6)(b) by removing a requirement that donations of books by a public library to a not-for-profit must have no market value, contained a “Legislative findings” that stated in part: The legislature recognizes that as the repository of the art and knowledge of our civilization, library books are capable of continuing to provide a benefit to the community even after a library determines that they are surplus or of such condition that they are no longer suitable for library use.  The legislature hereby finds that the donation of such used or surplus books to not-for-profit corporations or political subdivisions is a public purpose and that such continued use of used or surplus books will provide an important benefit to the general public. (Emphasis in the Commissioner's decision.) 

Based on the Legislature’s finding, the Commissioner ruled that that "a public library’s donation of used or surplus books, pursuant to Education Law §§226(6)(b) and 260 to a not-for-profit corporation such as the FFPL is a public purpose."

Also noted in the decision was that the record indicated that "FFPL is taking used books donated to the Library and a small percentage of books originally purchased by the Library and subsequently discarded by the Library as surplus books and conducting book sales to the public." Further, the Board and FFPL indicate that the proceeds of such book sales "are used to provide funding for library activities, programs and purchases." The Commissioner opined that "Such an arrangement is entirely consistent with Education Law §§226(6) and 260 in that the FFPL is conducting the sale of used or surplus books for the benefit of the Library."

Additional findings by the Commissioner include:

a. Donation of books to the FFPL under such circumstances clearly serves a proper library and public purpose by raising funds to support library programs and activities. 

b. Use of the Board's library resources to promote book sales by the FFPL for the benefit of the Library, including its facility, communications facilities and employees, also serves a proper library and public purpose.  

Finally, although the appeal was dismissed for the reasons stated above, the Commissioner urged the Board to avoid future such appeals by being more transparent about the fund-raising activities of the FFPL.  

As the Board knows that FFPL provides the Library with approximately $15,000-$20,000 each year to support library programs and activities, the Commissioner said that "it should be an easy matter for the Board to document what those programs and services are and to identify to the public upon request where in the Library budget those contributions appear."  In so doing, the Board should be able to persuasively document that the FFPL’s activities are of substantial benefit to the Library rather than responding in generalities as it did with Petitioner’s inquiries.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17277