Commissioner of Education lacks jurisdiction to consider appeals involving acts or omissions of post-secondary education institutions

Commissioner of Education lacks jurisdiction to consider appeals involving acts or omissions of post-secondary education institutions

Appeal of Diana Marie Van Vleet, Decisions of the Commissioner of Education, Decision No. 17,538

Diana Marie Van Vleet appealed an action of Molloy College, an institution of post-secondary education concerning Ms. Van Vleet's being given a failing grade in a course. 

The record before the Commissioner of Education indicated that at the time of the events described in this appeal, Ms. Van Vleet was enrolled as a student at Molloy College and here presents claims against Molloy College and several of its officers and employees asserting that she was improperly given a failing grade in one of her courses. 

The Commissioner said that Ms. Van Vleet's appeal must be dismissed as outside the jurisdiction of the Commissioner of Education in an appeal pursuant to Education Law §310.  The pertinent portion of Education Law §310 reads as follows:

"Any party conceiving himself aggrieved may appeal by petition to the commissioner of education who is hereby authorized and required to examine and decide the same; and the commissioner of education may also institute such proceedings as are authorized under this article. The petition may be made in consequence of any action: 7. By any other official act or decision of any officer, school authorities, or meetings concerning any other matter under this chapter, or any other act pertaining to common schools."

In the words of the Commissioner, "[t]his grant of jurisdiction does not extend to acts or omissions of institutions of post-secondary education. The Commissioner explained that while the language of Education Law §310(7) “could literally, and if it stood alone, embrace much more than the common school classifications of the first six subdivisions, " the text do not stand alone and are "circumscribed and modified by the contextual words which precede and follow them.”

Citing Bd. of Educ. of City Sch. Dist. of City of Rome v. Ambach, 118 AD2d 932 and Application of Bowen, 17 AD2d 12, aff’d 13 NY2d 663, the Commissioner said courts have held that “the statute deals throughout with the common schools and, inferentially, ... it does not invest the Commissioner with carte blanche appellate jurisdiction in all controversies involving the Education Law,” the Commissioner dismissed Ms. Van Vleet's appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17538

Audits and reports issued by New York State Comptroller Thomas P. DiNapoli during the week ending December 21, 2018

Audits and reports issued by New York StateComptroller Thomas P. DiNapoli during the week ending December 21, 2018

Source: Office of the State Comptroller

Click on text highlighted in color to access the full report

Department of Health: Medicaid Overpayments for Medicare Part B Services Billed Directly to eMedNY (2017-S-36)
Auditors identified up to $8.7 million in improper payments for costs related to Medicare Part B deductibles and coinsurance between 2012 and 2017. Auditors found that Medicaid made: questionable payments totaling $5.3 million to providers who claimed excessive Part B coinsurance amounts; overpayments totaling $2.3 million to providers for the Part B coinsurance on services Medicaid did not cover; and overpayments totaling $1.1 million to providers for Part B deductibles that exceeded yearly limits.

Department of Health: Medicaid Overpayments for Medicare Advantage Plan Services (2017-S-46)
During the audit period, 2013 through 2017, Medicaid was the primary payer on 92,296 claims totaling almost $12.8 million for services typically covered by a recipient’s plan. Auditors sampled 266 such claims (totaling $220,661 in Medicaid payments) to determine the appropriateness of the payments. Auditors found that for 187 claims the provider either never billed the plan for the services, incorrectly indicated a plan payment of zero on its Medicaid claim or did not follow the plan’s billing guidelines. Medicaid paid $183,019 on these claims, while its actual obligation amounted to only $5,484. During the audit, certain providers acknowledged receiving overpayments and repaid Medicaid $25,300, leaving $152,235 to be recovered.

Department of Health: Improper Medicaid Payments for Recipients in Hospice Care (2017-S-76)
Auditors identified about $8 million in inappropriate Medicaid payments for services provided to hospice recipients, including: $2.9 million for services that were not allowed in combination with the daily hospice rate; $2.4 million for drugs, durable medical equipment, home care, and other services that are covered under the daily hospice rate; $2.6 million for services that should have been covered by Medicare or a Medicaid managed care organization; and $107,141 for hospice services while the patient was in the hospital.

Department of Labor (DOL): Protection of Child Performers (Follow-Up) (2018-F-24)
An initial audit found DOL had not created a sound and effective system of internal controls for the Child Performers Unit and did not have the necessary controls to monitor and enforce compliance with regulations designed to protect child performers’ earnings. Auditors also found that DOL’s electronic permit application system had significant data entry, maintenance, and functionality deficiencies that limited its effectiveness and reliability as a monitoring tool. In a follow-up, auditors found DOL officials have not made progress in addressing the issues identified in the initial report.

Department of Motor Vehicles (DMV): Registration and Enforcement of Automotive Service, Sales, and Salvage Facilities (Follow-Up) (2018-F-25)
State law outlines DMV’s responsibilities for administering the registration and licensing for certain types of automotive businesses, including registration of repair shops, dealers, dismantlers, and junk and salvage facilities and licensing of inspection stations. Where facilities are found to be in violation of laws, rules, or regulations, DMV must take necessary actions against them, which may include issuing penalties, suspending or revoking registrations/licenses to operate, or referring the operator or facility for criminal prosecution. An audit issued in August 2017 identified many locations where businesses could potentially be operating without a license. Auditors also identified delays in DMV’s process for handling consumer complaints. In a follow-up, auditors found DMV officials have made significant progress in correcting the problems identified in the initial report.

Find out how your government money is spent at Open Book New York. Track municipal spending, the state's 150,000 contracts, billions in state payments and public authority data. 

 

Procedural considerations relevant to conducting a disciplinary hearing pursuant to §75 of the Civil Service Law

Procedural considerations relevant to conducting a disciplinary hearing pursuant to §75 of the Civil Service Law

Tinter v Board of Trustees of the Pound Ridge Lib. Dist., 2017 NY Slip Op 08385, Appellate Division, Second Department

In this appeal from a disciplinary determination following a Civil Service Law §75 disciplinary hearing that resulted in the termination of the employee [Petitioner], the Petitioner challenged, among other things, the authority of the hearing officer to conduct the hearing.

The Appellate Division said that the Board of Trustees of the Pound Ridge Library District's [Board] minutes reflecting a resolution to appoint the Hearing Officer and the letter addressed to the Hearing Officer on Pound Ridge Library letterhead and signed by the Board's president, advising that the Hearing Officer had been designated to hold a hearing on the disciplinary charges preferred against Petitioner and on "amendments or supplements to the charges as might thereafter be preferred ... sufficiently documented the validity of the Hearing Officer's appointment and satisfied the relevant provisions of Civil Service Law §75(2), citing McKenzie v Board of Education, City School District of Albany, 100 AD3d 1096.

Petitioner also challenged certain members of the Board participating in the Board's review of the findings and recommendations of the Hearing Officer.

Citing Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714, the Appellate Division stated that while individuals "who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges", the "[i]nvolvement in the disciplinary process does not automatically require recusal." The court opined that the Board members who reviewed the recommendations of the Hearing Officer and acted on the charges "were not so personally or extensively involved in the disciplinary process so as to compel the conclusion that they could not fairly consider the evidence and recommendation resulting from the hearing and, thus, that their recusal was necessary."

Another issue raised by Petitioner was the Hearing Officer's involvement in another matter. The Appellate Division said that "[c]ontrary to the [Petitioner's] contention, the Hearing Officer's undisclosed participation in another matter involving the Board's counsel did not compel the Hearing Officer's disqualification."

With respect to Petitioner's claim that the Board's determination should be annulled because the Board made no independent review of the record, the Appellate Division found that the Board "had an opportunity to review the record, transcripts, exhibits, and post-hearing memorandum," and Petitioner "failed to make any clear showing that the Board did not make an independent appraisal and did not reach an independent conclusion."

Note:With respect to an appointing authority's review of the hearing record, in cases in which a board is the appointing authority and is voting to accept a hearing officer’s finding of fact, each member of the board must make an independent review of the record. This means a copy of the transcript must be made available to each member of the board who votes. The appointing authority, however, is not required to read every page of the transcript taken at a disciplinary hearing. In McKinney v Bennett, 31 AD3d 860, the Appellate Division held that the appointing authority was not required to read all 1,228 pages of the hearing transcript and each document submitted, citing Matter of Taub v Pirnie, 3 NY2d 188. In Stanton v Board of Trustees, 157 AD2d 712, the court commented that Stanton failed to demonstrate that the appointing authority "made no independent appraisal and reached no independent conclusion”, quoting Matter of Kilgus v Board of Estimate of City of N.Y., 308 NY 620.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08385.htm

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

A public retirement system's denial of an application for retroactive membership in the System must be supported by substantial evidence

Sears v DiNapoli, 2018 NY Slip Op 08610, Appellate Division, Third Department

§803.a of the Retirement and Social Security Law [RSSL] addresses processing applications for retroactive membership in a public retirement system of New York State and provides, in pertinent part, that "A public retirement system shall have the authority to grant relief from a failure to file an application for membership in that system in connection with service rendered prior to April first, nineteen hundred ninety-three in accordance with the provisions of this [§803]."

Patricia Sears, a permanent employee of the Department of Taxation and Finance [T&F] from November 1977 until her retirement in July 2015 was enrolled in ERS as a Tier 3 member.  Prior thereto her permanent appointment in 1977, Sears had been employed by T&F as a seasonal employment on two occasions, initially from March 4, 1976 to June 30, 1976 and then again from January 6, 1977 until September 16, 1977. Prior to the commencement of her second temporary period of employment with T&F Sears signed a waiver dated December 28, 1976 acknowledging her right to join the Retirement System and elected not to do so.*

After RSSL §803 was enacted in 1993, Sears sought, but was denied, retroactive Tier 2 membership in ERS. Shortly before Sears retired in July 2015, she again sought to have her ERS membership in Tier 3 changed to a Tier 2 membership. Although ERS again denied Sears' request for Tier 2 membership, Sears challenged the decision via an administrative hearing and the Hearing Officer recommended Sears' application for retroactive Tier 2 membership be granted. The Comptroller rejected the Hearing Officer's recommendation and Sears filed an Article 78 petition challenging the Comptroller's determination.

The Appellate Division said the ERS conceded, and its review of the record confirms, that the underlying determination denying Sears' application to Tier 2 membership in ERS was not supported by substantial evidence. In words of the court, "As the Hearing Officer aptly observed, the waiver signed by [Sears] in December 1976 cannot be applied retroactively to encompass [Sears'] initial period of seasonal employment from March 1976 to June 1976, and Sears testified without contradiction that she was neither offered an opportunity to join nor declined membership in the Retirement System at that time."

The court explained that there was no information in Sears' personnel file regarding her membership options or opportunities when she was first hired in 1976, nor were there any current employees who could attest to the membership notification procedures that were in place when Sears was initially employed by T&F. Further, said the court, the documentary proof offered at the hearing was insufficient to establish, among other things, that Sears participated in a procedure that a reasonable person would recognize as an opportunity to join or decline membership in the Retirement System.

Accordingly, the Appellate Division annulled the Comptroller's determination, granted Sears application for retroactive Tier 2 status in ERS and remitted the matter to ERS "further proceedings not inconsistent with this Court's decision."

In contrast, see Schuyler v New York State & Local Employees' Retirement System at http://www.nycourts.gov/reporter/3dseries/2018/2018_00874.htm where the Appellate Division ruled that a "lack of documentation, coupled with information suggesting that petitioner's services were performed as an independent contractor rather than a state employee, supports the Comptroller's denial of petitioner's request for additional service credit."

* Frequently employees, other than employees in the Labor Class, eligible for membership in ERS but not required to become a member, declined becoming a member in order to avoid being required to make employee contributions to ERS and participating in Social Security. Employees in the Labor Class were required to participate in Social Security regardless of their membership in ERS.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08610.htm

As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

As a general rule, the determination of whether a person is “qualified” should be made at the time of the alleged discriminatory employment action

Smith v. Town of Ramapo, USSC, Second Circuit, Docket 18-148-cv*

The single issue before the court in this appeal was whether Raymond K. Smith’s inability to perform the essential functions of his job at the time of the alleged discrimination forecloses his claim of discrimination under §102(a) of the Americans with Disability Act [ADA].   

Due to an injury Smith could no longer work as a police officer and Ramapo approved his disability status under New York General Municipal Law §207-c.** Smith alleged that Ramapo treated him differently than nondisabled officers in violation of the ADA.   

After qualifying for §207-c disability benefits, Smith was not permitted to use vacation days he had previously accrued when working as a police officer; and, while disabled, Smith was unable to accrue new vacation time or to take bereavement leave. The district court concluded that Smith failed to plead a necessary element of his ADA discrimination claim, namely that he was qualified to be a police officer at the time of the alleged discrimination. The Circuit Court agreed, explaining that one of the elements of a claim under the ADA is that an employee was "qualified to perform the essential functions of his job, with or without reasonable accommodation."

Smith’s injury, however, severely limited the use of his arm and shoulder and left him unable to engage in many daily activities and nowhere in his complaint did he claim that following his injury he could have performed the essential duties of a police officer, either with or without a reasonable accommodation. 

Citing Stevens v. Rite Aid Corp., 851 F.3d 224, the Circuit Court noted that where a disability renders an individual unable to perform the essential functions of the job, "that disability renders him or her unqualified.”

Thus Smith’s failure to plead that he was qualified to be a police officer is fatal to his claim. Although Smith cited Castellano v. City of New York, 142 F.3d 58, in contending he was "qualified' to be a police officer at the time he earned certain benefits, and that he is entitled to those benefits under the ADA regardless of his ability to serve as a police officer at the time of the discrimination, the court said that "Smith misreads Castellano, and his claim was properly dismissed," noting that Castellano hold that retired employees who were qualified to perform the essential functions of their jobs while employed remain entitled to receive post-employment benefits. The general rule, said the Circuit Court, is that the determination of whether a person is "qualified" should be made at the time of the discriminatory employment action and Castellano created a narrow exception to the rule for post-employment benefits intended to be used by retirees.   

In any event, the court indicated Smith’s claims were not about post-employment benefits, or any benefit used by a former employee., nor did he allege that he was ultimately deprive of the value of any previously accrued benefit, such as a payout for his accumulated vacation days.   

As the Castellano’s exception does not apply in Smith's situation and because Smith failed to plead that he was able to perform the essential duties of a police officer at the time of the alleged discrimination, the court ruled that he "failed to state a claim for disability discrimination."

Click here to Read a FREE excerpt from Disability Benefits for fire, police and other public sector personnel in New York State.

* The decision noted that it is a "Summary Order" and rulings by summary order do not have precedential effect.

** §207-c  provides for the payment of salary and medical expenses to a police officer who is injured in the performance of his or her official duties.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/doc/18-148_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c82839c-7f0a-452f-8af6-8449599f621b/8/hilite/