Proposed bills of particular interest to school administrators vetoed by the Governor

Proposed bills of particular interest to school administrators vetoed by the Governor

Source: Attorney Douglas E. Gerhardt, Harris Beach, PLLC

Douglas E. Gerhardt, Esq., a partner with the Harris Beach, PLLC law firm, has posted an article addressing two significant bills of interest to school administrators that were passed by the State legislature. One bill would have harmonized certain tenure laws, the second sought to remove the salary cap currently in effect applicable to BOCES superintendents. Both bills were vetoed by the Governor. 

Mr. Gerhardt discusses the impact of these vetoes on school districts and administrators in New York state public schools.

The article is posted on the Internet at:

https://www.harrisbeach.com/new-york-municipalities-blog/governor-vetoes-two-key-bills-for-school-administrators-in-final-hours-of-2018/?utm_source=Constant%20Contact&utm_medium=Email&utm_campaign=Blog&utm_term=vetoes%20for%20school%20districts&utm_content=Governor%20Vetoes%20Two%20Key%20Bills%20for%20School%20Administrators%20in%20Final%20Hours%20of%202018

Governor Cuomo Announces First Round Of Term 3 Administration Appointments

Governor Cuomo Announces First Round Of Term 3 Administration Appointments

Source: Office of the Governor

 

On January 4, 2019 Governor Andrew M. Cuomo announced the following new appointments to his administration.

 

Keith Corlett will be nominated Superintendent of the New York State Police. Mr. Corlett currently serves as Deputy Superintendent. He has served in the New York State Police in a variety of patrol, investigative and executive management roles for over 30 years, including as Assistant Deputy Superintendent, Troop Commander of Troop NYC and Acting Staff Inspector of Division Headquarters. He also serves on the State Police Executive Portfolio Review Board, the New York State Interoperable and Emergency Communications Board, the New York State Municipal Police Training Council. Mr. Corlett also previously served as Co-Chair of New York State Counter Terrorism Zone 4. Mr. Corlett holds a B.A. from the State University of New York at Stony Brook and a M.P.A. from Marist College. 

 

Linda Lacewell, Esq. will be nominated Superintendent of the New York State Department of Financial Services. Ms. Lacewell most recently served as Chief of Staff and Counselor to the Governor. In that role, she oversaw Executive Chamber operations, as well as ethics and law enforcement matters. Ms. Lacewell previously served as executive director of a cancer foundation initiative in Culver City, California. Prior to that, Ms. Lacewell served as Chief Risk Officer and Counselor to Governor Cuomo where she built and implemented the first statewide system for ethics, risk and compliance in agencies and authorities. Ms. Lacewell was formerly special counsel to the Governor, as well as the architect of OpenNY, a state-of-the-art open data initiative. She also served as special counsel to Attorney General Cuomo, where she oversaw the public pension fund pay-to-play investigation and the out-of-network health insurance investigation, both of which led to nationwide systemic reform. Prior to that, Ms. Lacewell spent nine years as an assistant U.S. attorney for the Eastern District of New York, including two years on the Enron Task Force, and received the Henry L. Stimson Medal and the Attorney General's Award for Exceptional Service. Ms. Lacewell earned her B.A. from New College of the University of South Florida and her J.D. with honors from the University of Miami School of Law. She clerked for a United States District Judge for the Southern District of Florida. She serves as an adjunct professor at New York University School of Law, teaching ethics in government, and previously served as an adjunct professor of law at Fordham University School of Law, teaching international criminal law. 

 

Michael Hein will be nominated Commissioner of the New York State Office of Temporary and Disability Assistance. Mr. Hein currently serves as Ulster County's first County Executive and was elected President of the New York State Association of Counties. Prior to that position, Mr. Hein served as the Ulster County Administrator and Deputy Treasurer. He holds a B.A. from Eckerd College.

 

Theodore Kastner will be nominated Commissioner of the New York State Office for People With Developmental Disabilities. Dr. Kastner previously served as the founder and President of Developmental Disabilities Health Alliance, Inc., an integrated primary care mental health practice for persons with intellectual and developmental disabilities. He was also the Director of the Rose F. Kennedy Children's Evaluation and Rehabilitation Center (RFK CERC) at Montefiore Medical Center and is Professor of Pediatrics and Professor of Psychiatry and Behavioral Sciences at the Albert Einstein School of Medicine where he also holds the Ruth I. Gottesman Chair in Developmental Pediatrics. Dr. Kastner earned his M.D. from the University of Connecticut School of Medicine and earned a Master of Science in population health from the University of Wisconsin. Dr. Kastner is board-certified by the American Board of Pediatrics in Pediatrics, Developmental and Behavioral Pediatrics, and Neurodevelopmental Disabilities and by the American Association for Physician Leadership as a Certified Physician Executive. Starting in 1976 as a Direct Support Professional with the Massachusetts Association for the Blind and Visually Impaired, he has worked in the field for more than 40 years. 

 

Lola W. Brabham will be nominated as a member of the Civil Service Commission and named President of the Commission. Ms. Brabham previously served as Acting Commissioner and Executive Deputy Commissioner of the Department of Civil Service. Prior, she served as Deputy Commissioner for Administration and Chief Financial Officer for the State Department of Labor and was Assistant Chief Budget Examiner for the State Division of the Budget. She was Assistant Secretary for Health, Medicaid and Oversight and Director of Human Services in the Executive Chamber under Governor David Paterson. She was also a Legislative Budget Analyst for the Assembly Committee on Ways and Means and, early in her career, was Chief of Staff to Assemblyman N. Nick Perry. Ms. Brabham has a dual B.A. in Criminal Justice and Sociology from the State University of New York and an M.P.A. from Rockefeller College of Public Affairs and Policy.

 

Erik Kulleseid, Esq. will be nominated Commissioner of the New York State Office of Parks, Recreation and Historic Preservation.  Mr. Kulleseid previously served as the Senior Vice President, Parks & Policy Program for the Open Space Institute. Prior, he was Deputy Commissioner for Open Space Protection for the Office of Parks, Recreation and Historic Preservation and served in a variety of roles at the Trust for Public Land for 13 years. Mr. Kulleseid holds a B.A. from Yale University, a J.D. from Stanford Law School and received a Master of Forestry from the Yale School of Forestry and Environmental Studies. 

 

Allen Riley is being designated as Chair of the State Commission of Correction.  Since April 2018, he has served as interim Chair which followed his appointment to the Commission in June 2017. Previously, Mr. Riley served as Madison County Sheriff for more than seven years. As Sheriff, he headed an agency with more than 160 employees, oversaw the Madison County Child Advocacy Center, which investigates child physical and sexual abuse cases, and served as a member of Governor Cuomo's Commission on Youth, Public Safety and Justice. Prior to being elected Sheriff, Mr. Riley was a 27-year veteran of the New York State Police, serving in Troop D as an investigator handling homicide and other serious cases and as a uniform trooper.  He was a narcotics detection and explosives detection K-9 handler and field training officer, among other duties. Mr. Riley served on the board of directors of the New York State Sheriffs' Institute, the New York State Association for Incarcerated Education Programs, and the Madison County Office of the Aging Advisory Council, among other positions.  He was twice named the American Legion Law Enforcement Officer of the Year in Madison County. He attended Morrisville State College (SUNY) and was the college's commencement speaker in 2014.

 

Mark Schroeder will be nominated to serve as Commissioner of the New York State Department of Motor Vehicles. Mr. Schroeder currently serves as Buffalo City Comptroller. Previously, he served in the New York State Assembly and Erie County Legislature. He earned a A.A.S. from Erie Community College and aB.S. from Empire State College. 

 

Caitlin Girouard has been appointed Press Secretary. Previously, she was Communications Director for U.S. Senator Amy Klobuchar, Deputy Chief of Staff and Communications Director for Congressman Sean Patrick Maloney and Communications Director for former Congressman Steve Israel. She received a B.A. in Political Science from the University of Notre Dame. 

Dana Carotenuto Rico, Esq. has been appointed Deputy Secretary for Legislative Affairs. Ms. Carotenuto Rico served in State Senate staff roles for over 10 years, most recently as Chief of Staff for the Senate Independent Democratic Conference negotiating the state budget and policy initiatives such as paid family leave, zombie property legislation and foreclosure protections. She holds a B.S.F.S from Georgetown University's School of Foreign Service and a J.D. from Brooklyn Law School. 

Kenita Lloyd has been appointed Assistant Secretary for Intergovernmental Affairs. Prior to this appointment, Ms. Lloyd served for four years as Senior Vice President for Development & External Affairs at the NYC Mission Society. At the NYC Mission Society, Ms. Lloyd led the fundraising and external affairs strategy for the 206-year-old antipoverty organization. Ms. Lloyd also previously served as Director of Development for the National Action Network.  Ms. Lloyd holds a M.P.A. from New York University's Robert F. Wagner School of Public Service and a B.A. from New York University's Gallatin School of Individualized Study.

   

Licha Nyiendo, Esq. has been promoted to Deputy Special Counsel for Public Integrity. Ms. Nyiendo previously served as Special Counsel for Ethics, Risk and Compliance at the Division of Homeland Security and Emergency Services. Prior, she was Security Counsel for Apple Inc.  She formerly was an Assistant U.S. Attorney for the Eastern District of New York and served as Deputy Chief of the Civil Rights Unit and Deputy Chief of the Narcotics Unit. Ms. Nyiendo holds a B.A. from Harvard University and a J.D. from Duke University.

 

Timothy Hartz has been appointed Director of Executive Operations. Mr. Hartz most recently served as a Special Assistant to President Obama and Deputy Director of Advance Operations for the White House. Previously, he served as the Director of Priority Placement with the Presidential Personnel Office and as the Director of Operations for the Department of the Interior. He holds a B.A. from Providence College. 

 

Barbara Rice has been appointed Assistant Secretary for Economic Development. Ms. Rice has had a distinguished career in local government and served as the first female Chair of the Franklin County Legislature. Previously, Ms. Rice has worked on land use planning and development in her role as a Commissioner on the Adirondack Park Agency and as a member of the NYS Fire Safety and Building Code Council. She received her BA in Business and Economics magna cum laude from SUNY Plattsburgh, a Post-Baccalaureate Certificate in pre-medical sciences from Bennington College, and her PA degree from Albany Medical College.

 

Barika X. Williams has been appointed Assistant Secretary for Housing. Prior to joining state government, Ms. Williams was Deputy Director with the Association for Neighborhood and Housing Development, where she led policy and advocacy efforts to secure and expand affordable housing and equitable economic development in New York City. She received her Master's in City Planning with a concentration in Housing and Economic Development from MIT's Department of Urban Studies and Planning and her Bachelor of Arts from Washington University in St. Louis. 

 

William Fisher has been appointed to the Joint Commission on Public Ethics. He fills the seat previously held by Gary J. Lavine, whose term expired on December 11th. Mr. Fisher previously served as Deputy County Executive for Onondaga County. Prior, he was the Co-Founder and CEO of Summit Software Company. Mr. Fisher holds a B.A. from Yale University and an M.A. from Syracuse University's Maxwell School of Citizenship and Public Affairs. 

An administrative determination made after a hearing will be sustained by the court if the decision is supported by substantial evidence

An administrative determination made after a hearing will be sustained by the court if the decision is supported by substantial evidence

DeStefano v Incorporated Vil. of Mineola, 2018 NY Slip Op 08481, Appellate Division, Second Department

Michael A. DeStefano, a member of the Volunteer Fire Department of the Incorporated Village of Mineola, was served with disciplinary charges alleging that he had violated certain provisions of the Fire Department's constitution and by-laws. Found guilty of the charges by the Fire Department's Fire Council [Fire Council], DeStefano membership in Fire Department was terminated.

DeStefano asked the Board of Trustees of the Incorporated Village of Mineola [Board] to review the Fire Council's determination. The Board of Trustees appointed a hearing officer, who conducted a hearing. Following the hearing, the hearing officer recommended that the Fire Council's findings of misconduct and the penalty of termination of DeStefano's membership in the Fire Department be sustained. The Board adopted the recommendation of the hearing officer.

DeStefano appealed the Board's decision by commencing a proceeding pursuant to CPLR Article 78 contending that the Board's determination "was made in violation of lawful procedure and was not supported by substantial evidence."* Supreme Court denied DeStefano's petition and dismissed the proceeding. DeStefano appealed the Supreme Court's ruling to the Appellate Division.

The Appellate Division, noting that as a matter of procedure Supreme Court should have transferred the proceeding to the Appellate Division but as the complete record "is now before this Court," held that it would treat the matter as one that has been transferred here and will review the determination de novo."

The court explained that with respect to judicial review of a determination rendered by an administrative body following a hearing, the Appellate Division's function "is limited to consideration of whether the determination is supported by substantial evidence." In this instance, said the Appellate Division, the Board's determination that DeStefano violated certain provisions of the Fire Department's constitution and its by-laws was supported by substantial evidence. Further, said the court, "... contrary to [DeStefano's] contention, certain members of the Fire Council were not required to disqualify themselves from acting on the disciplinary charges filed against him."

With respect to the penalty imposed, termination from the Fire Department, the Appellate Division noted that a court may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." 

The Appellate Division said that it found that the penalty of dismissal imposed on DeStefano was "not so disproportionate to the offenses as to be shocking to one's sense of fairness," citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

The court then confirmed the Board's decision and dismissed DeStefano's appeal "on the merits."

* Substantial evidence it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt and "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact [300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08481.htm

Procedures for Implementing Reasonable Accommodation for Applicants and Employees with Disabilities and Pregnancy-related Conditions in New York State Agencies

Procedures for Implementing Reasonable Accommodation for Applicants and Employees with Disabilities and Pregnancy-related Conditions in New York State Agencies

New York State Department of Civil Service General Information Bulletin GIB 19-01,

Click here https://www.cs.ny.gov/ssd/pdf/GIB19-01.pdf to download a PDF copy of General Information Bulletin 19-01.

Recusal and the Rule of Necessity

Recusal and the Rule of Necessity

Center for Jud. Accountability, Inc. v Cuomo, 2018 NY Slip Op 08996, Appellate Division, Third Department

Elena Ruth Sassower, Individually and as Director of the Center for Judicial Accountability, Inc., [Center], appealed a judgment of the Supreme Court Justice Denise A. Hartman which, among other things, granted the State of New York's motion for summary judgment. Center had challenged certain provisions in a bill establishing the budgets for the State Legislature and the State's Judiciary for the 2016-2017 fiscal year.

Among the several issues addressed by the Appellate Division was Center's contention that Supreme Court erred by denying its motion for recusal, arguing Justice Hartman "has a pecuniary interest in this action because Justice Hartman is paid in accordance with the salary schedule that is being challenged." Noting that recusal is warranted when a judge has an interest in the litigation, the Appellate Division said that "the Rule of Necessity* provides a narrow exception to this principle, requiring a biased adjudicator to decide a case if and only if the dispute cannot be otherwise heard." The court said that "self-interest inherent in adjudicating a dispute involving judicial compensation" otherwise provides grounds for disqualifying not only Justice Hartman, but every judge who might replace her. Accordingly, the Rule of Necessity permitted Justice Hartman to decide this action on the merits.

Further, opined the Appellate Division, Justice Hartman was not required to recuse herself for any other reason, explaining that "Absent a legal disqualification under Judiciary Law §14, which is not at issue here, a trial judge is the sole arbiter of recusal[,] and his or her decision, which lies within the personal conscience of the court, will not be disturbed absent an abuse of discretion." Perceiving "no abuse of discretion here," the court held that Justice Hartman's prior employment by the Attorney General's office does not mandate recusal.**

Other decision addressing "recusal" include the following:

● A board member’s involvement in the disciplinary process does not automatically require recusal of that individual [Birch v County of Madison, 123 AD3d 1324]

● 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" [see Matter of Baker v Poughkeepsie City School Dist., 18 NY3d 714].

In Opinions of the Attorney General, 92 Informal 61, the Attorney General, when asked how a member of a city council should conduct himself or herself, the opinion notes that "public officers have responsibility to exercise their official duties solely in the public interest [and] should avoid circumstances which compromise their ability to make impartial judgments." Further, public officers must avoid the appearance of impropriety in order to maintain public confidence in government.

* See, also, https://publicpersonnellaw.blogspot.com/2014/01/the-rule-of-necessity-permits-tribunal.html

** A court need not address, in its decision, every argument raised by a party, and "a ruling that is not to a litigant's liking does not demonstrate either bias or misconduct." In addition, noted the Appellate Division, "the Attorney General's office was not required to address every argument made by [Center] under our adversarial system" as each party is permitted to make the arguments believed most favorable to his or her or its position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08996.htm