Cofsky v Sinnott

Freedom of information

McCray v Lennon, NYS Supreme Court

Louis McCray, currently serving twenty years to life at Green Haven Correctional Facility, filed a Freedom of Information [FOIL] request seeking agency records that would identify the employment status, titles, and date of termination of a certain employee of a police department. When the Department refused to provide the information on the grounds that McCray had not properly identify the information he was seeking, McCray sued.

Citing Bahlman v Brier, 119 Misc2d 110, the Court ruled that the disclosure of such employee information would be an invasion of privacy within the meaning of §87.2 of the Public Officers Law and dismissed McCray complaint.

The Court said that there was a need to balance the public's right to know with the right of innocent individuals to be protected from unwarranted intrusions in their personal lives. Accordingly, the Court concluded, the Department's refusal to release information demanded, even if the request had been properly made, was appropriate because of the nature of the requested information.

Fire marshals and police officers

Fire marshals and police officers

Rossi v NYCMTA, NYS Supreme Court

Are New York City fire marshals police officers? The answer to this question proved to be the key to resolving Rossi v the New York City Municipal Transit Authority [NYCMTA]. City fire marshals Thomas Rossi and Gregory A. Papa complained that NYCMTA failed to include fire marshals in its police ride program as required by §1266(14) of the Public Authorities Law.

§1266.14 requires NYCMTA, in consultation with the Long Island Rail Road, to "establish and implement a "no fare program" on the Long Island Rail Road for police officers employed by the City of New York, the County of Nassau, Nassau County villages, the Division of State Police and a number of other public employers. The goal of the program was to increase protection and improve safety for its commuters by encouraging a "police presence" on commuter trains.

Claiming fire marshals have police officer status, Papa challenged the rejection of his application for a monthly transit pass under the program, citing as authority for his position Criminal Procedure Law, §1.20[34](i) and the Administrative Code of the City of New York §15-117. Two law suits were filed, one by Rossi and a second by Papa, when NYCMTA's refused to include the City's 238 fire marshals in the program. The two were later consolidated into a single action.

In defending its decision, NYCMTA argued  that the program was only available "to active members in good standing of the police departments specifically referenced in the [§1266(14) of the Public Authorities Law] ... [and] does not apply to individuals not ordinarily thought of as police officers, such as fire marshals, district attorney investigators and enforcement agents of the State's Department of Taxation and Finance."

The Court, disagreed, ruling that NYCMTA's implementation of the police pass program constituted an irrational construction of the §1266(14).

Noting that the fire marshals carried firearms and had the same power of arrest as members of the New York City Police Department, the Court directed NYCMTA to include all police officers employed by the City of New York, the chief and deputy fire marshals, the supervising fire marshal and the fire marshals of the bureau of fire investigation in the program.

The Court also commented that "[a]ll police officers in the State of New York derive their official status from the provisions of §1.20(34) of the Criminal Procedure Law."

Comparing administrative positions

Comparing administrative positions

Decisions of the Commissioner of Education, Decision No. 13733

In 1995 the Windham-Ashland-Jewett Central School District's budget was defeated. In response, the superintendent recommended that one position of building principal, together with the position of curriculum coordinator, be abolished and replaced by a new position of assistant superintendent. As a result, the building principal position held by Deborah Elmendorf was abolished effective June 30, 1995. She was not interviewed for the assistant superintendent position and Janette Bain was appointed to the title effective August 17, 1995.

Elmendorf appealed to the Commissioner of Education, contending that under §2510(1) of the Education Law she was entitled to the appointment because she was the "senior excessed administrator" in the administrative tenure area. In rebuttal, the District argued that the position of assistant superintendent is not similar to the position of building principal and thus §2510(1) was not relevant.

NOTE: §2510(1) essentially provides that if an office or position is abolished and another office or position performing similar duties is created, the incumbent of the abolished position "shall be appointed to the office or position thus created without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he has filled."

Although both titles were in the administrative tenure area, the Commissioner pointed out that Elmendorf would be entitled to appointment in a newly created position only if the duties of the new position were similar to those of her former position. The test applied in such situations when classroom teachers are involved is whether more than 50% of the duties to be performed by the incumbent of the new position are similar to those of his or her former positions. The Commissioner said that this comparison is more difficult when administrative positions are involved because they "do not lend themselves to the same analysis used under §2510 when teaching positions are concerned."

In any event, Elmendorf had the burden of proving that a majority of the duties of the new position are similar to those of her former position. To succeed, Elmendorf had to demonstrate that the degree of comparable skill and experience required to carry out the duties of both positions were similar. The Commissioner rejected Elmendorf's attempt to do this by allocating percentages of duties and creating a mathematical formula to calculate the similarities of duties between the two positions.

Instead the Commissioner compared the job descriptions of the two positions, concluding that "although there are several areas ... that were transferred to the new title ... the new position includes several functions which differ significantly from those of a building principal." Dismissing Elmendorf's appeal, the Commissioner also found it significant that the building principal position only required School Administrator and Supervisor certification while the assistant superintendent required School District Administrator certification.

As to any claim to a "due process hearing" prior to Elmendorf's termination, the Commissioner said that under the circumstances the District had an obligation to provide "... a due process hearing [to consider] the alleged similarity of the duties of the two positions," but the District's violation of Elmendorf's due process rights alone does not mean that she is entitled to the position.

Annulment of a disciplinary termination

Annulment of a disciplinary termination

Suarez v Egginton, 236 A.D.2d 547

Washington M. Suarez was terminated from his position after being found guilty of misconduct. This finding was based entirely on Suarez being convicted of criminal charges based on this misconduct. Suarez asked the Appellate Division to annul the administrative determination dismissing him "upon his assumption that the judgment in the criminal action would be reversed." As the conviction was upheld, the Appellate Division said that "the sole basis for annulment disappeared."

The Appellate Division noted that the disciplinary determination was based on substantial evidence. Even if the criminal conviction were reversed because the misconduct was proved "beyond a reasonable doubt," it would seem that the administrative determination based on substantial evidence would survive. The procedures underlying §30.1.e of the Public Officers Law appears to support such a conclusion.

Substitute service credit

Substitute service credit

Hudson v Hempstead UFSD, NYS Supreme Court

The Hudson case concerned the proper counting of service as a substitute teacher for the purposes of determining if a teacher had obtained tenure. The ruling emphasizes the importance of considering substitute service in making tenure decisions for probationary employees.

The Supreme Court commented in its decision that this was a case of "first impression." That is, the issue of crediting service as a "permanent substitute" had never before been litigated in New York State.

A probationary employee is deemed to have acquired tenure "by estoppel"  if the employer fails or neglects to take timely action to terminate the services of the probationer prior to end of his or her maximum period of probation.

In the Hudson case, Shawn Hudson had served as a per-diem substitute elementary school teacher for a number of years with the Hempstead Union Free School District. The District then appointed him as a "permanent substitute" for a teacher while she was on maternity leave for the school year.  Hudson was subsequently appointed as an elementary school teacher subject to a two-year probationary period. The probationary period was to end February 1, 1995.

Prior to the end of this probationary period, Hudson signed a document advising him that the superintendent would not recommend him for tenure at the end of his probationary period and that his probationary period would be extended for another year and would now run through February 1, 1996. The document also contained a waiver whereby Hudson agreed not to claim tenure by estoppel based on his employment with the District after February 1, 1995.

On December 12, 1994 Hudson was told in a letter that his probationary period would not be extended after all and that he was terminated effective February 1, 1995.  Hudson sued.

Hudson argued that (1) he had acquired tenure by estoppel and (2) as a tenured teacher, he could not be discharged without formal proceedings being taken pursuant to Education Law. How could Hudson argue this given the fact that he had waived his right to tenure by estoppel? Hudson asserted and the Court agreed that the District's letter dated December 12, 1994 rendered Hudson's waiver of any claim to tenure by estoppel null and void. Simply put, when the District reneged on its offer of an additional year of probation, all bets were off.

NOTE: The Court ruled that Hudson's state of mind when he signed the letter was not relevant to the issue of whether or not he was actually entitled to credit towards tenure.

Hudson's claim of tenure by estoppel amounted to a counting of the days he served. He contended that by tacking together all of his service in the District, he had served a total of three or more years with Hempstead and therefore was entitled to "Jarema Credit."*He included his service as a full-time substitute teacher for one school year, other  service as a substitute for the District, his service as a "permanent substitute," and his probationary service.

The District contended that only Hudson's full-time substitute service (one school year) and his time as a probationary teacher (slightly less than two years) should be counted and credited toward the three-year service requirement for tenure. Thus, argued the District's "no hearing was required under the Education Law and it had the right to discharge [Hudson] without cause."

The Court said that central to resolving the dispute between the parties was the calculation of Jarema credit. That determination, in turn, depended on whether Hudson was to be given credit for the time he served as a "permanent substitute." To resolve the issue, the Court said it must first look to the regulations of the Commissioner of Education in an attempt to find the classifications of the various categories of teacher service.

Was the position "permanent substitute" analogous to a "regular substitute" within the meaning of §3012.1(a)?  Here the Court decided  that it was and that the Board of Education was "estopped from denying Hudson Jarema Credit for the time in which he served as a "permanent substitute."

According to the ruling,  "the provisions of the Education Law applicable to the granting of tenure are in derogation of the common law and should be strictly construed." The Court said that "a board of education may not deny tenure and other rights to its employees by refusing to designate such employees by the appropriate title or by designating their positions as "acting" or "temporary."

Citing Ricca v Board of Education, 47 NY2d 385. the Court concluded that whether or not a Board of Education acted intentionally to circumvent the tenure laws is not determinative because "even good faith violations of the tenure system must be forbidden, lest the entire edifice crumble from the cumulative effect of numerous well-intentioned exceptions."

Another argument made by Hempstead was that Hudson's periods of service in which the he served as a regular substitute must have been immediately preceded his probationary appointment to be considered. The District contended that because Hudson served certain semesters less than full time prior to his probationary period, he could not qualify for Jarema credit.

Not so, said the Court.  "While the Commissioner of Education noted in Matter of Carey, 31 Ed. Dept. Rep. 394 (1992), that there is a distinction between seniority credit and 'Jarema Credit,' he did not state that in order to qualify for 'Jarema Credit,' the full-time substitute work must come immediately before the probationary appointment."

In addition, the Court commented that "... §3012 does not impose such a requirement and it is permissible for a teacher to achieve tenure by estoppel ... by tacking together two non-continuous periods of service," quoting from Lindsey v Mt. Morris Board of Education, 172 AD2d 185.

The Court decided that Hudson's "service sufficient to allow the petitioner to qualify for 'Jarema Credit' for the regular substitute periods in which he served."

Concluding that Hudson had attained tenure by estoppel and thus "should not have been discharged without formal proceedings pursuant to Education Law §3012(2) being brought," the Court ruled that he was entitled to back pay for the period following his termination, subject to an adjustment based on Hudson's "mitigation of those damages."

* §2509.1(a), the "Jarema Act," provides that the statutory three-year probationary period for teachers is reduced to one year if the teacher rendered satisfactory service as a "regular substitute" for two years or more prior to the teacher's probationary appointment by the same school district. The probationary period is not to exceed two years in situations involving the appointment of a probationary teacher who was tenured in another school district.  The Education Commissioner has  distinguished between "Jarema Credit" and "seniority credit" for the purposes of §2510. He said that  seniority credit recognizes continuous full-time service in a  school district and unlike Jarema credit,  may not be used  to obligate a board to grant tenure to a teacher. Tenure decisions may be  made  without  regard to a teacher's  accumulated  seniority. Citing  Matter of Crandall (20 Ed. Dept. Rep. 16),  the Commissioner said "seniority, then,  relates only to a teacher's rights vis-à-vis other teachers" such as may be relevant in a layoff situation. The Commissioner observed that in such a context, "it is reasonable to assume that  teachers  will  be  retained according  to  the  length  of continuous [i.e., uninterrupted] service, whether  such  service  was  all  rendered subsequent to a probationary appointment or was rendered partly before and partly after such an appointment."