Tenure may be acquired by estoppel

Tenure by estoppel 

Wilson v Department of Educ. of the City of N.Y., 2019 NY Slip Op 01161, Appellate Division, First Department

An employee may attain tenure by estoppel as the result of the appointing authority's failing to provide the individual with timely notice that his or her services will not be continued beyond his or her probationary period.*

Citing McManus v Board of Educ. of Hempstead Union Free School District, 87 NY2d 183, the Appellate Division affirmed a Supreme Court's ruling that annulled New York City Department of Education's [DOE] discontinuing Petitioner's employment and directed the educator's reinstatement to her former position as a tenured teacher with back salary.**

DOE had appointed Petitioner as a teacher in 2011 and her initial 3-year probationary period was set to expire in 2014. Prior to the date on which Petitioner probationary period was to expire, she and DOE entered into a written agreement extending her probation through September 8, 2015. 

In March 2015, DOE temporarily reassigned Petitioner to perform certain clerical duties. Significantly, DOE did not advise Petitioner concerning its decision regarding her status as a probationary teacher upon her reassignment. In March 2016, DOE discontinued Petitioner's clerical assignment and  directed her to resume performing her teaching duties. The Appellate Division's decision reports that after resuming her teaching duties Petitioner was involved in an incident with her school principal and she "took an unapproved leave of absence." On June 15, 2016, DOE notified Petitioner that "it was discontinuing her probationary service as of July 15, 2016."

The Appellate Division explained that a probationary teacher typically acquires tenure by estoppel when a school board fails to take the action required by law to either [1] grant or deny tenure to the individual prior to the expiration of the teacher's probationary term and [2] accepts the continued services of an educator in his or her position. Here, said the Appellate Division, Petitioner obtained tenure by estoppel at the end of her extended probationary period as the result of DOE's failure to deliver the notice of it's decision to terminate her on or before September 8, 2015.

In addition, the court noted that DOE failed to advise Petitioner that the temporary assignment to perform clerical duties would not count toward her satisfying her probationary term of service. Accordingly, Petitioner's decision to accept the temporary reassignment did not "serve to disrupt" Petitioner's  probationary period nor did it result in an automatic extension  of her probationary term for a period equal in length to the period of her service in a clerical capacity.

Having attained tenure in her position as an educator by estoppel, which is sometimes referred to as tenure by acquiescence or tenure by default, Petitioner could only be removed from her position for cause, after notice and hearing.

In contrast, for the purposes of determining the duration of the probationary period, if a teacher is absent during his or her probationary period, the appointing authority may take appropriate action to extend the probationary period for a period of time equal to such absence.

The same is true with respect to absence during the probationary period of employees in the classified service.*** However, with respect to employees in the classified service, the appointing authorities may be given discretion to waive a limited period of such absence pursuant to the rules of the responsible civil service commission. Otherwise the minimum and maximum periods of the probationary term of the employee are extended by the number of workdays of such absences not counted as time served in the probationary term” [see, for example, 4 NYCRR 4.5(g), “Absence during probationary term”].

Another element to consider is the extension of the probationary period in the event an employee is given a “light duty” or some other alternate assignment while serving his or her probationary period [see Boyle v Koch, 68 NY2d 60].

* If the notice of termination of the employee's service is timely given, the last day of service need not coincide with the last day of his or her probationary period. If the termination date of service of the individual is made effective within a reasonable time of the last day of his or her probationary period, such as to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel as the result of the “carryover” [see Mendez v Valenti, 101 AD2d 612].

** The Supreme Court's ruling was subsequently amended to provide that amount earned by the Plaintiff from a specified date to a later specified date would be deducted from the amount of back pay owed to Plaintiff by the Department of Education.

*** The positions of teachers and school administrators are typically in the Unclassified Service [see Civil Service Law §35, subdivisions g through and including k].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01161.htm

National emergency at the US-Mexico border declared

National emergency at the US-Mexico border declared

Source: New York Time news report, February 12, 2019

[This post was updated February 18, 2019]

On February 12, 2019 the New York Times published a news article reporting that President Trump "declared a national emergency at the border ... to access billions of dollars to build a border wall [and] would sign the declaration to protect the country from the flow of drugs, criminals and illegal immigrants coming across the border from Mexico, which he characterized as a profound threat to national security."

A joint statement concerning the Emergency Powers Act by members of Western Michigan University Cooley Law School’s Constitutional Law Department is set out below:

“Over the years, Congress has delegated expansive powers to the President to declare national emergencies. This delegation of emergency powers poses a threat to the delicate separation of powers between Congress and the President set forth in the Constitution. The President’s declaration of an “emergency” allowing him to fund the border wall is the latest test of the emergency powers statute and will surely lead to a dramatic expansion of presidential powers if left unchecked.”    

Constitutional Law Professors at WMU-Cooley include:

Professor Gerald Tschura – Auburn Hills campus

Assistant Dean and Professor Devin Schindler – Grand Rapids campus

Associate Dean and Professor Michael McDaniel – Lansing campus

Professor Brendan Beery – Tampa Bay campus

The Brennan Center for Justice at New York University School of Law has assembled a listing of relevant provisions of federal law that may be cited as authority for actions taken in the event of a declaration of a national emergency is issued and has posted this information on the Internet at https://www.brennancenter.org/analysis/emergency-powers.

The Brennan Center has summarized the basics with respect to a President's declaring a national emergency as follows:

50 USC §§1601-1651 - National Emergencies Act (1976): "With respect to acts of Congress authorizing the exercise, during the period of a national emergency, of any special or extraordinary power, the President is authorized to declare such national emergency”.

The Center's analysis continues: "The National Emergencies Act imposes procedural requirements on the President’s exercise of emergency powers. It has governed the declaration of multiple emergencies. For a complete list of emergencies declared under this statute, see here."

  50 U.S. Code §1622 - National emergencies

The provisions of 50 U.S. Code §1622, addressing the termination of a national emergency, are set out below:

(a) Termination methods

Any national emergency declared by the President in accordance with this subchapter shall terminate if—

(1) there is enacted into law a joint resolution terminating the emergency; or

(2) the President issues a proclamation terminating the emergency.

Any national emergency declared by the President shall be terminated on the date specified in any joint resolution referred to in clause (1) or on the date specified in a proclamation by the President terminating the emergency as provided in clause (2) of this subsection, whichever date is earlier, and any powers or authorities exercised by reason of said emergency shall cease to be exercised after such specified date, except that such termination shall not affect—

              (A) any action taken or proceeding pending not finally concluded or determined on such date;

                (B) any action or proceeding based on any act committed prior to such date; or

                (C) any rights or duties that matured or penalties that were incurred prior to such date.

(b) Termination review of national emergencies by Congress

Not later than six months after a national emergency is declared, and not later than the end of each six-month period thereafter that such emergency continues, each House of Congress shall meet to consider a vote on a joint resolution to determine whether that emergency shall be terminated.

(c) Joint resolution; referral to Congressional committees; conference committee in event of disagreement; filing of report; termination procedure deemed part of rules of House and Senate

(1) A joint resolution to terminate a national emergency declared by the President shall be referred to the appropriate committee of the House of Representatives or the Senate, as the case may be. One such joint resolution shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee, unless such House shall otherwise determine by the yeas and nays.

(2) Any joint resolution so reported shall become the pending business of the House in question (in the case of the Senate the time for debate shall be equally divided between the proponents and the opponents) and shall be voted on within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

(3) Such a joint resolution passed by one House shall be referred to the appropriate committee of the other House and shall be reported out by such committee together with its recommendations within fifteen calendar days after the day on which such resolution is referred to such committee and shall thereupon become the pending business of such House and shall be voted upon within three calendar days after the day on which such resolution is reported, unless such House shall otherwise determine by yeas and nays.

(4) In the case of any disagreement between the two Houses of Congress with respect to a joint resolution passed by both Houses, conferees shall be promptly appointed and the committee of conference shall make and file a report with respect to such joint resolution within six calendar days after the day on which managers on the part of the Senate and the House have been appointed. Notwithstanding any rule in either House concerning the printing of conference reports or concerning any delay in the consideration of such reports, such report shall be acted on by both Houses not later than six calendar days after the conference report is filed in the House in which such report is filed first. In the event the conferees are unable to agree within forty-eight hours, they shall report back to their respective Houses in disagreement.

(5) Paragraphs (1)–(4) of this subsection, subsection (b) of this section, and section 1651(b) of this title are enacted by Congress—

             (A) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and as such they are deemed a part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in the House in the case of resolutions described by this subsection; and they supersede other rules only to the extent that they are inconsistent therewith; and

                (B) with full recognition of the constitutional right of either House to change the rules (so far as relating to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

(d) Automatic termination of national emergency; continuation notice from President to Congress; publication in Federal Register

Any national emergency declared by the President in accordance with this subchapter, and not otherwise previously terminated, shall terminate on the anniversary of the declaration of that emergency if, within the ninety-day period prior to each anniversary date, the President does not publish in the Federal Register and transmit to the Congress a notice stating that such emergency is to continue in effect after such anniversary.

(Pub. L. 94–412, title II, § 202, Sept. 14, 1976, 90 Stat. 1255; Pub. L. 99–93, title VIII, § 801, Aug. 16, 1985, 99 Stat. 448.)

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Penalty of termination imposed on a employee found to have been conducting private business activities "on company time"

Ficken v Suffolk Vocational Education Board, 238 A.D.2d 589

An employee of Suffolk County's Vocational Education and Extension Board [VEEB] was conducting a personal business activity while simultaneously being employed by VEEB. The problem was that the employee was alleged to have been conducting some of her personal business on VEEB property and on VEEB time.

Although warned several times not to conduct her personal business affairs while on VEEB property and that her failure to comply with directive could result in disciplinary action, the employee persisted in conducting some of her personal business while at work. This resulted in the employee being charged with, and found guilty of, misconduct characterized as theft of services. The penalty imposed: termination. 

The employee appealed the disciplinary action taken against her, claiming that there was no substantial evidence to support the appointing authority's determination. 

The Appellate Division disagreed and dismissed the appeal challenging the disciplinary action taken against her. The court explained that the employee's admission that she met with a client to conduct aspects of her business on VEEB property and on "VEEB time," coupled with the testimony of two co-workers that the employee typed documents related to her business activities while "at work," was "sufficient to provide substantial evidence to sustain the findings of misconduct."

As to the penalty imposed, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, said that under the circumstances, dismissal was not so disproportionate to the offense as to be "shocking to one's sense of fairness."

The decision is posted on the Internet at:
https://www.leagle.com/decision/1997827238ad2d5891242

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Improper performance of a judicial function by a legislative body

Improper performance of a judicial function by a legislative body

Porcari v Griffith, 2019 NY Slip Op 00918, Appellate Division, Second Department

In 2016, the individuals [Plaintiffs] initiating this action were appointed to certain local offices by the Mayor of the City of Mount Vernon. Later that same year the Mount Vernon City Council enacted an ordinance declaring that the offices occupied by the Plaintiffs were "vacant" because the Plaintiffs were not residents of the City within the meaning of §50-38* of City's Code.

The ordinance as enacted also required the City's Comptroller to "... immediately cease payment of salary and benefits to Plaintiffs."** The Comptroller ceased paying salary and benefits to Plaintiffs notwithstanding the fact that Plaintiffs continued to perform the duties of their respective offices.

The Plaintiffs thereupon brought an action seeking a declaratory judgment and injunctive relief against the actions of the members of the City Council and the Comptroller, alleging that City Council "exceeded its legislative authority in enacting the ordinance that declared that the offices held by the plaintiffs were vacant." Plaintiffs asked Supreme Court to issue an order enjoining their suspension, termination, any interference with their salary and benefits or preventing them from performing the duties and responsibilities of the positions to which they had been appointed by the Mayor. Supreme Court granted Plaintiffs' motions and Mt. Vernon appealed the court's ruling.

The Appellate Division, noting that the "party seeking a preliminary injunction must demonstrate a probability of success on the merits, danger of irreparable injury in the absence of an injunction and a balance of equities in its favor," explained that "the decision to grant a preliminary injunction is a matter ordinarily committed to the sound discretion of the court hearing the motion" and "[i]n the absence of unusual or compelling circumstances, [the] court[s] [are] reluctant to disturb said determination."

The Appellate Division then opined that Plaintiffs had demonstrated a likelihood of success on the merits on their claim that the City Council "improperly performed a judicial function" by enacting an ordinance  "declaring" that the local offices were vacant within the meaning of §50-38 of the City of Mount Vernon's Code.*** In addition, said the court, Plaintiffs also demonstrated "a danger of irreparable injury in the absence of an injunction, and that the equities balance in their favor."

Accordingly, the Appellate Division sustained the Supreme Court's determination granting Plaintiffs' motion for the preliminary injunction.

* Article III, [Residency Requirements] of Chapter 50 [Personnel Policies] set out in City of Mount Vernon's Code requires certain local officers and employees to be residents of the City of Mount Vernon [See https://ecode360.com/6600350].

** The Appellate Division's decision indicates the City Council overrode the Mayor's veto of the ordinance.

*** §36 of the Public Officer Law sets out the procedures for the removal of a town, village, improvement district or fire district officer other than a justice of the peace.  Typically, such officers may be removed from office for misconduct, maladministration, malfeasance or malversion in office by the filing of an application for such removal with the Appellate Division have jurisdiction.  

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00918.htm

Proposed amendment to 2 NYCRR 315.5 will permit certain special duty assignments performed by sworn officers to qualify as public safety overtime in determining the individual's retirement allowance

Proposed amendment to 2 NYCRR 315.5 will permit certain special duty assignments performed by sworn officers to qualify as public safety overtime in determining the individual's retirement allowance

Source: New York State Register, February 13, 2019

The Department of Audit and Control has posted a notice of a proposed amendment of 2 NYCRR 315.5 to provide that certain special duty assignments qualify as public safety overtime and qualify as allowable service in determining the Retirement System member's retirement allowance.

The Retirement System explains that it has:

"[L]ong considered certain special duty assignments that consisted primarily of security work performed by public safety professionals at the request of a private entity on a voluntary basis, paid or reimbursed by the private entity, performed under the direction of the private entity, or primarily for the benefit of the private entity not to be creditable because such assignments did not constitute paid public service with a participating employer.

"Courts have upheld the Retirement System’s position that such work, often referred to as 'private entity overtime,' was not allowable service and was not within the realm of the employee’s duties for the participating employer. In recent years, however, the manner in which special duty assignments performed at the request of private entities are assigned, supervised, and compensated has changed.

"Today, special duty assignments are often mandatory and are directed and controlled by the public employer. Compensation to the employee is paid by the public employer, not the private entity.

"In recognition of the changing nature of special duty assignments, the Retirement System has determined that those special duty assignments that meet the criteria established by the Retirement System, qualify as “public safety overtime” and shall be considered allowable service."

The text of the proposed amendment is posted on the Internet at:

https://docs.dos.ny.gov/info/register/2019/feb13/rulemaking.pdf