ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

May 05, 2020

Determining an educator's eligibility for unemployment insurance benefits between two successive academic years

Labor Law §590 (10) provides that "[a] professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment." In Matter of Murphy [Copake-Taconic Cent. School Dist.-Commissioner of Labor], 17 AD3d 762, "a reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

The Unemployment Insurance Appeal Board ruled that the claimant in this action [Claimant] was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment. Claimant appealed.

The employer sent Claimant, a per diem substitute teacher, a letter in June informing her that it wished to retain her to teach during the next academic school year. Claimant applied for unemployment insurance benefits between the two academic years and the Department of Labor awarded her benefits upon finding that the employer did not offer her a reasonable assurance of continued employment.

Although an Administrative Law Judge affirmed the Department of Labor's determination, the Unemployment Insurance Appeal Board [Board] reversed this decision, ruling that the employer had provided Claimant with a reasonable assurance of continued employment and thus she was not entitled to receive the unemployment insurance benefits for which she had applied. Claimant appealed the Board's decision.

The Appellate Division sustained the Board's ruling, holding that the employer had clearly expressed its interest in having Claimant return as a per diem substitute teacher for the next academic year in the June letter that it sent to her. The employer indicated that it anticipated that "there will be as much work for Occasional Per Diem Substitute Teachers" during the following school year as was available to Claimant during the current academic year and the economic terms and conditions would be substantially the same next academic year as the academic year then ending and requested that she acknowledge receipt of the letter.

The court opined that the letter, together with the testimony concerning the per diem rate of pay for the following academic year and number of potential work days available, provides substantial evidence supporting the Board's finding that the employer provided claimant with a reasonable assurance of continued employment and said it found no reason to disturb the Board's decision.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_02335.htm

May 04, 2020

Bringing employees absented due to COVID-19 concerns back to the workplace

The COVID-19 pandemic plateauing in many regions has spurred talk of re-opening the economy and bringing employees back to the workplace. Harris Beach is offering a complimentary webinar on Friday, May 8, 2020, from 9:00 - 10:00 a.m., ET, at which its labor and employment attorneys will address legal considerations for doing so safely and effectively, and field related questions submitted by participants.*

* In addition, Harris Beach will take questions in advance if submitted when you register. The webinar will also be recorded for those unable to attend live.

Instructions for participation will be included in your confirmation email after registration.

April 30, 2020

Multistate project offers 3 successful approaches for creating and disseminating health data

The results of a multistate research pilot project* offers 3 successful approaches for creating and disseminating medical data to communities. Sub-county data often are more difficult to obtain than county-level data and require additional considerations such as estimate stability, validating accuracy, and protecting individual confidentiality.

The Journal of Public Health Management and Practice has published a paper co-authored by Trang Q. Nguyen, MD, DrPH; Isaac H. Michaels,** MPH; Dulce Bustamante-Zamora, PhD; Brian Office of Public Health Practice, New York State Department of Health, Albany, New York (Dr Nguyen, Mr. Michaels, and Ms Li); Department of Epidemiology and Biostatistics, School of Public Health, University at Albany, Rensselaer, New York (Dr Nguyen, Mr Michaels, and Ms Li); Office of Health Equity, California Department of Public Health, Sacramento, California (Dr Bustamante-Zamora); Hospital Industry Data Institute, Missouri Hospital Association, Jefferson City, Missouri (Dr Waterman); Division of General Medical Sciences, Department of Medicine, Washington University School of Medicine, St Louis, Missouri (Dr Nagasako); BJC HealthCare Center for Clinical Excellence, St Louis, Missouri (Dr Nagasako); and University of Wisconsin Population Health Institute, University of Wisconsin-Madison, Madison, Wisconsin (Drs Givens and Gennuso).

The teams summarized the common themes shared by all projects as well as unique technical considerations arising during the project implementation. In addition, technical challenges and implementation challenges involved in sub-county data analyses are discussed. Lessons learned and proposed recommendations for prospective analysts of sub-county data are provided on the basis of project experiences, successes, and challenges.

The teams encourage future projects to further refine techniques for addressing these critical considerations.


* The project was funded by County Health Rankings and Roadmaps, a collaboration between the Robert Wood Johnson Foundation and the University of Wisconsin Population Health Institute. Additional research support (E.N.) was provided by BJC HealthCare and NIH/NCATS Washington University-ICTS grants UL1 TR000448 and KL2TR000450.

** NYPPL earlier noted New York State health statistics and data reports posted on the Internet by Mr. Michaels at 
https://publicpersonnellaw.blogspot.com/2020/04/new-york-covid-19-data-tracking-report.html

An abstract of the paper and a link to the text of the Journal's paper is on the Internet at:
https://journals.lww.com/jphmp/Abstract/9000/Generating_Subcounty_Health_Data_Products__Methods.99288.aspx

April 29, 2020

Application to quash a subpoena ad testificandum


Following an investigation, a tenured high school principal [Principal] employed by the New York City Department of Education [NYCDOE]  was served with charges and specifications of misconduct alleging the improper utilization of school funds for inappropriate or personal reasons.

An Education Law §3020-a disciplinary hearing was conducted and 23 of the charges and specifications filed against Principal were sustained. The Hearing Officer concluded that the appropriate penalty to impose would be termination from service. The Chancellor of NYCDOE sustained the findings of the Hearing Officer that Principal was guilty of misconduct but, citing mitigating factors including Principal's "years of unblemished service," reduced the penalty to [1] a six-month suspension without pay and [2] removal from the position of principal and [3] assignment to a nonsupervisory administrative position.

Principal subsequently entered into a "stipulation of settlement" with NYCDOE pursuant to which, among other things, NYCDOE agreed 

[1] not terminate Principal; 

[2] suspended Principal for six months without pay; 

[3] reinstate Principal to her tenured teaching position; and 

[4] assign Principal to a nonteaching position. In addition  NYCDOE and Principal mutually agreed to release the other from any future claims related to the disciplinary matter.

The a complication arose. 

Principal's representative in the §3020-a disciplinary action was a union-assigned attorney [Attorney]. During the course of the disciplinary hearing, Attorney applied for and accepted a position as executive deputy counsel with NYCDOE, whereupon Attorney recused herself from representing Principal in the then ongoing §3020-a disciplinary action. 

Principal continued pro se* through the remainder of the disciplinary hearing and entered into the stipulations of settlement described above.

Based upon the disciplinary findings, New York State Department of Education [SED] commenced a decertification proceeding to determine if Principal was of good "moral character" and entitled to retain her teaching certificate. SED then moved to apply the findings of fact made by the Hearing Office in the disciplinary hearing in the decertification hearing under color of the doctrine of collateral estoppel.

The Hearing Officer in the SED proceeding granted SED's motion subject to the qualification, among others, that collateral estoppel would not apply if Principal lacked "competent counsel" at the disciplinary hearing. At Principal's behest, the  Hearing Officer  in the decertification proceeding issued a subpoena ad testificandum** requiring Attorney, now a NYCDOE employee and nonparty witness, to testify at the decertification hearing to assist in Principal's defense against the application of collateral estoppel based upon her claim that she lacked competent counsel at the disciplinary hearing.

The Hearing Officer denied NYCDOE's motion to quash the subpoena, finding that Attorney's testimony would be relevant to Principal's defense that she lacked competent counsel. NYCDOE then moved in Supreme Court to quash the subpoena. Principal opposed the motion and sought a court order to compel compliance with the subpoena.

Supreme Court granted the motion to quash, finding, among other things, that Attorney's testimony was immaterial to the decertification hearing in that it did not concern Principal's moral character. Principal appealed the Supreme Court's decision.

The Appellate Division, explaining that the "limited issue" it was whether the subpoena ad testificandum issued in the pending SED administrative decertification matter was properly quashed by the Supreme Court.

Noting that a subpoena ad testificandum will be quashed only where the futility of the process to uncover anything legitimate is inevitable or obvious or where the information sought is utterly irrelevant to any proper inquiry, the Appellate Division, citing Kapon v Koch, 23 NY3d at page 39, said that the party moving to quash bears "the burden of establishing that the subpoena should be [quashed] under such circumstances."

Principal sought to subpoena Attorney in order to defend — in the decertification proceeding — against SED's request to collaterally estop Principal from challenging the factual findings made at the §3020-a disciplinary hearing.

Opining that factual findings made in the course of a disciplinary hearings have been given collateral estoppel effect, provided the party to be precluded "had a full and fair opportunity to be heard with respect to the charges of misconduct," the Appellate Division pointed out that the SED Hearing Officer recognized this issue and only provisionally granting SED's motion to apply collateral estoppel in the ongoing decertification proceeding.

As to Principal's contention that she "lacked competent counsel" in the §3020-a disciplinary proceeding, the Appellate Division said that the SEC Hearing Officer noted that "[e]vidence admitted to date shows that while representing ... [Principal] in the [§3020-a disciplinary] proceeding ... [Attorney] was actively seeking employment with [NYCDOE] [and, d]uring the course of the [disciplinary] proceeding .... [Attorney] was offered and accepted a position with [NYC]DOE." 

This alone, said the Appellate Division, is sufficient to allow Principal to inquire into Attorney's handling of her [§3020-a disciplinary] action "for the purpose of avoiding the application of the doctrine of collateral estoppel." 

In other words the Appellate Division deemed Attorney's testimony "highly relevant to whether collateral estoppel will be applied in the pending SED decertification proceeding."
 
Accordingly, the court found that NYCDOE had not satisfied its burden of proof with respect to its motion to quash the subpoena. While stating that it "express[es] no opinion on the ultimate merits of the collateral estoppel defense or any other issue," the Appellate Division concluded that Attorney's testimony at the decertification proceeding "is not 'utterly irrelevant' to the inquiry regarding the preclusive effect, if any, to be given to the factual findings made at the disciplinary proceeding."

Thus, it was error for Supreme Court to have quashed the subpoena.

* To act as one's own attorney.

** A subpoena ad testificandumrequires a person to come to court to testify in the event the person declines to come on his own. Another type of subpoena, a subpoena duces tecum, is used to require an individual to bring specified documents, papers or writings to the court to be used as evidence.

The decision is posted on the Internet at:

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com