Appealing administrative decisions made by New York State Education Department staff members

New York State Education Department’s Office of Teaching Initiatives [SED] denied the request submitted by a school counselor [Petitioner] holding a provisional certification for an extension of time in which to complete the requirements for obtaining permanent certification as a school counselor.

 

The Petitioner held provisional certification as a school counselor. In 2013 Petitioner received an extension to complete the necessary requirements to receive permanent certification.  Petitioner requested a second extension of time in 2019, which SED denied. Petitioner appealed to the decision to the Commissioner of Education seeking SED issuance of a permanent certificate in school counseling or, in the alternative, an extension of time in during which Petitioner could complete any additional requirements."

The Commissioner dismissed the appeal for "lack of jurisdiction." 

Citing Appeal of Carmel Academy, 56 Ed Dept Rep, Decision No. 16,976, the Commissioner explained that "[i]t is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department" and  that any such appeal must adjudicated "in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume59/d17773

Modernizing Government: How to Achieve Enhanced Mobility and Security

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Considering applications for accidental disability retirement benefits

A state trooper [Petitioner] filed for accidental disability retirement and State Police disability retirement benefits alleging that he was permanently incapacitated as a result of injuries sustained to his back, neck and right shoulder in when, in the course of investigating a motor vehicle accident, another vehicle rear-ended the parked patrol vehicle in which he was sitting and propelled his vehicle into a concrete barrier.

  

The New York Stateand Local Police and Fire Retirement System denied both applications, Petitioner sought a hearing and redetermination. The Hearing Officer upheld the denial of Petitioner's applications and he filed an appeal to the State Comptroller. The Comptroller ultimately remanded the applications for further action to a different Hearing Officer, finding that the first Hearing Officer had failed to make findings on an issue of fact central to the question of whether Petitioner's injuries rendered him permanently incapacitated.

Following a second hearing, during which all evidence and testimony presented at the first hearing was admitted into evidence* and ultimately the new Hearing Officer concluded that Petitioner had failed to establish that he was permanently incapacitated as a result of his injuries and, consequently, denied both of applications for benefits submitted by Petitioner.

The Comptroller accepted the second Hearing Officer's findings and conclusions and Petitioner commenced a CPLR Article 78 proceeding challenging the Comptroller's determination. Finding that the petition raised the issue of whether substantial evidence supported the determination, Supreme Court transferred the proceeding to the Appellate Division pursuant to CPLR §7804[g].

The Appellate Division affirmed the Comptroller's determination explaining that the applicant for accidental or State Police disability retirement benefits bears the burden of establishing, among other things, "that he or she is permanently incapacitated from performing his or her regular job duties." Further, noted the court, the Comptroller is vested with "the authority to resolve conflicts in medical evidence and to credit the opinion of one expert over that of another, so long as the credited expert provides an 'articulated, rational and fact-based opinion, founded upon a physical examination and review of relevant medical reports and records'" and where the Comptroller's determination is supported by substantial evidence, it will be sustained.

In this instance the Comptroller credited the expert opinions of the Retirement Systems expert, a board-certified orthopedic surgeon who reviewed petitioner's medical records and conducted physical examinations of Petitioner and opined that petitioner was not permanently incapacitated because there were reasonably safe treatment options available** and later following a second physical examination of Petitioner, found that Petitioner's conditions "had resolved or were stable."

In contrast to what the Appellate Division described as the Retirement System's expert "articulated, rational and fact-based opinions," Petitioner's experts opined that Petitioner was permanently incapacitated. The Comptroller discounted Petitioner's experts opinions for various reasons and rejected Petitioner's citing determinations made by the Workers' Compensation Board and the Social Security Administration, explaining that the opinions of those entities "are not binding upon the Comptroller."

Deferring to the Comptroller's credibility assessments, the Appellate Division found that substantial evidence supports the determination that Petitioner failed to prove that his injuries rendered him permanently incapacitated and confirm the Comptroller's determination.

* The decision notes that at the second hearing Petitioner had consented to the admission of evidence from the first hearing and thus rejected Petitioner's contention that the Comptroller could not rely on certain reports in the record.

** See Matter of Mondello v Beekman, 56 NY2d 513, affirmed on opinion below at 78 AD2d 824. In this instance the individual's application for line of duty disability retirement was dismissed because the individual had failed to accept proper corrective medical treatment, including surgery..

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07662.htm

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Disability Benefits for fire, police and other public sector personnel

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The emerging urgency of mitigating environmental impacts and potential public health risks of the United States Postal Service

Below an abstract of an article by Dr. Robert Michaels [bam@ramtrac.com] recently published in the Environmental Claims Journal.  The full text of the article can be downloaded from ResearchGate.netat no charge, via the following URL:   https://www.researchgate.net/publication/323256797_The_Emerging_Urgency_of_Mitigating_Environmental_Impacts_and_Potential_Public_Health_Risks_of_the_United_States_Postal_Service.

Abstract¹

The privatized, ‘quasi-public’ United States Postal Service (USPS) is the largest commercial entity sending and delivering letters and packages. USPS vehicles drive a billion miles/year, visit 150 million addresses/day, and stimulate fossil fuel mining and vehicle pollutant emissions, with significant environmental impacts and potential public health risks. Sending and delivering therefore constitute excellent candidate activities for optimization to reduce USPS and overall impacts and risks, which depend upon spatial relationships of local post offices and mail recipients. Recipients may receive mail passively, or pick it up at their post office. Under the USPS business model, recipients lack economic incentive for the latter, even if their post office is situated along their daily travel route. USPS can incentivize such customers by dividing the price of postage between two parties: senders, covering delivery of individual pieces to recipients' local post office; and recipients, in the form of annual subscriptions covering delivery of mail to their local address. This alternative model would greatly reduce the price of postage for senders, increase the number of recipients picking up mail at a local post office box to avoid paying for delivery subscriptions, reduce USPS and overall impacts and risks, and possibly restore USPS business volume and profitability.

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1 Michaels, Robert A.  The emerging urgency of mitigating environmental impacts and potential public health risks of the United States Postal Service.  Environmental Claims Journal, 30(2), 142-50, doi: 10.1080/10406026.2018.1442077, online 9 March 2018.

Supervisor the target of employee's disrespectful and aggressive behavior

An employee was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he acted disrespectfully and aggressively towards his supervisor and caused disruption in the workplace. The worker denied any wrongdoing.

The appointing authority presented three witnesses who were present at the scene and all credibly testified as to employee's misconduct.

New York City Office of Administrative Trials and Hearing Administrative Law Judge Noel R. Garcia found that appointing authority proved that employee behaved in a discourteous manner towards his supervisor and caused disruption to the workplace.

The ALJ recommended that the employee be suspended without pay for ten days.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-2248.pdf