Challenging the credibility of the witness

Challenging the credibility of the witness

Ghastin v New York City Dept. of Educ., 2019 NY Slip Op 01152, Appellate Division, First Department

The Plaintiff in this action asked Supreme Court to vacate an Education Law §3020-a arbitrator's award that found the individual guilty of certain disciplinary charges and imposed a penalty of suspension without pay for four weeks. Supreme Court granted the New York City Department of Education's motion to dismiss Plaintiff's petition and Plaintiff appealed. 

The Appellate Division sustained the lower court's ruling.

Plaintiff had objected to the hearing officer's "credibility determinations" with respect to the testimony of the Department's witnesses at the hearing. The Appellate Division said that the fact that the hearing officer found the testimony of the Department's witnesses more credible than Plaintiff's testimony does not serve to demonstrate that the hearing officer's determination was arbitrary and capricious.*

As to the penalty imposed by the hearing officer, the court observed that Plaintiff  failed to demonstrate how a four-week suspension without pay is so shockingly disproportionate to the offenses involved that it constitutes an abuse of discretion "given her proven misconduct which could have resulted in violence."

Noting that the Plaintiff had some 19 years of service at the time of the hearing with no known disciplinary record before the incident, the Appellate Division said that the record shows that Plaintiff failed to acknowledge the gravity of her misconduct, continued to deny any wrongdoing and showed a lack of remorse for her actions.

Another issue raised by Plaintiff: Did the hearing officer have jurisdiction to decide the matter. However, Plaintiff first raised this issue in the petition filed in Supreme Court. The Appellate Division, citing Matter of DeMartino v New York City Department of Transportation, 67 AD3d 479 said that raising the question of the jurisdiction of the hearing officer was of "no moment" as Petitioner is deemed to have "waived the issue" when it was not raised in the course of the arbitration.

* The Appellate Division described the testimony of the Department's witnesses as "interlocking and closely corroborating".

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_01152.htm

Reports and audits issued by New York State Comptroller Thomas P. DiNapoli

On February 15, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits were issued.

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Procurement of Electricity and Natural Gas through Aggregators (2018MS-5)

Local governments and school districts did not always evaluate procurement options or make comparisons to benchmark rates to ensure they received the lowest prices for electricity and natural gas. Five of seven entities reviewed (city of Albany; counties of Broome, Cortland and Oneida; and North Syracuse Central School District) spent approximately $2.4 million more for electricity than the benchmark rate used by auditors.

Bainbridge Fire District – Board Oversight (Chenango County)

The board established adequate controls to help safeguard assets, and the legally required procurement policy, investment policy and code of ethics were in place. The treasurer’s financial records and reports accurately and properly accounted for all financial activities. Although the board did not perform a formal annual audit of the treasurer’s records, it reviewed reports each month and performed a thorough audit of claims before they were paid to ensure they were supported and funds were used for legitimate expenditures.

Town of Hyde Park – Payroll and Time Records (Dutchess County)

Controls over payroll and time records were adequate to ensure the accuracy of payroll and time records.  While the town has a good system in place, it could be further improved by filing approved time sheets electronically instead of printing them out only to have paper copies on file in order to save the time and expense of printing. 

Town of Lyons – Real Property Tax Exemptions Administration (Wayne County)

The assessor granted a total of 633 non-New York State School Tax Relief Program property tax exemptions for non-municipal owned property on the 2017 assessment roll, collectively reducing the town’s 2018 taxable assessed value by more than $34 million. The assessor granted exemptions without applications, renewal forms or supporting documentation and did not correctly calculate granted exemptions.

Town of Moravia – Real Property Tax Exemptions Administration (Cayuga County)

The assessor granted 306 non-NYS School Tax Relief Program exemptions on non-municipal owned property on the 2017 assessment roll, which collectively reduced the town’s 2018 taxable assessed value by more than $12 million. Auditors reviewed 85 exemptions totaling $9.3 million and identified issues with 68 exemptions totaling $6.9 million (74 percent). The files related to the 85 granted exemptions and found that 68 exemptions (80 percent) totaling $6.9 million in town-exempt assessed value lacked one or more required supporting documents to determine eligibility or verify the accuracy of the exemption calculation.

Town of Solon – Financial Management (Cortland County)

The board did not adopt a fund balance and reserve policy or create comprehensive multiyear financial and capital plans. From Dec. 31, 2014 through Dec. 31, 2017, general fund unrestricted fund balance increased by $106,230 (110 percent). Over the same three-year period, highway fund unrestricted fund balance increased by $50,007 (24 percent).

On February 15, 2019 New York State Comptroller Thomas P. DiNapoli announced the following audits were issued.

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Procurement of Electricity and Natural Gas through Aggregators (2018MS-5)

Local governments and school districts did not always evaluate procurement options or make comparisons to benchmark rates to ensure they received the lowest prices for electricity and natural gas. Five of seven entities reviewed (city of Albany; counties of Broome, Cortland and Oneida; and North Syracuse Central School District) spent approximately $2.4 million more for electricity than the benchmark rate used by auditors.

Bainbridge Fire District – Board Oversight (Chenango County)

The board established adequate controls to help safeguard assets, and the legally required procurement policy, investment policy and code of ethics were in place. The treasurer’s financial records and reports accurately and properly accounted for all financial activities. Although the board did not perform a formal annual audit of the treasurer’s records, it reviewed reports each month and performed a thorough audit of claims before they were paid to ensure they were supported and funds were used for legitimate expenditures.

Town of Hyde Park – Payroll and Time Records (Dutchess County)

Controls over payroll and time records were adequate to ensure the accuracy of payroll and time records.  While the town has a good system in place, it could be further improved by filing approved time sheets electronically instead of printing them out only to have paper copies on file in order to save the time and expense of printing. 

Town of Lyons – Real Property Tax Exemptions Administration (Wayne County)

The assessor granted a total of 633 non-New York State School Tax Relief Program property tax exemptions for non-municipal owned property on the 2017 assessment roll, collectively reducing the town’s 2018 taxable assessed value by more than $34 million. The assessor granted exemptions without applications, renewal forms or supporting documentation and did not correctly calculate granted exemptions.

Town of Moravia – Real Property Tax Exemptions Administration (Cayuga County)

The assessor granted 306 non-NYS School Tax Relief Program exemptions on non-municipal owned property on the 2017 assessment roll, which collectively reduced the town’s 2018 taxable assessed value by more than $12 million. Auditors reviewed 85 exemptions totaling $9.3 million and identified issues with 68 exemptions totaling $6.9 million (74 percent). The files related to the 85 granted exemptions and found that 68 exemptions (80 percent) totaling $6.9 million in town-exempt assessed value lacked one or more required supporting documents to determine eligibility or verify the accuracy of the exemption calculation.

Town of Solon – Financial Management (Cortland County)

The board did not adopt a fund balance and reserve policy or create comprehensive multiyear financial and capital plans. From Dec. 31, 2014 through Dec. 31, 2017, general fund unrestricted fund balance increased by $106,230 (110 percent). Over the same three-year period, highway fund unrestricted fund balance increased by $50,007 (24 percent).

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.)