Former employee's application seeking the removal of a "problem code" from his personnel file rejected

Supreme Court dismissed an Article 78 petition filed by a former employee [Plaintiff] of the New York City Department of Education [DOE] challenging its placement of a "problem code" in Plaintiff's employment file and its refusal of his request to begin an "employment investigation" to remove the code. 

The Appellate Division unanimously affirmed the Supreme Court's dismissal of Plaintiff's petition.

Citing  Matter of Pepin v New York City Dept. of Educ., 148 AD3d 443, the Appellate Division held that DOE:

1. Was not prohibited from considering the Petitioner's service during his earlier probationary period in assessing his eligibility for employment; and

2. The assignment of a "problem code"* based upon the discontinuance of Plaintiff's earlier probationary employment was neither arbitrary nor capricious.

Further, opined the Appellate Division, absent a nomination for employment Plaintiff "lacks entitlement to an employment investigation to remove the code."

* In Pepin v New York City Dept. of Education, 45 Misc 3d 1221(A), DOE contended that it did not maintain "any list of persons ineligible for employment" with DOE and told Supreme Court it used "internal codes based on a past employee's employment record to reflect the reason the employee left [DOE's] service." 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05139.htm

 

October 2020 AELE case notes, publications, and seminar alert

Americans for Effective Law Enforcement, Inc. [AELE] case notes, publications, and seminar alerts for October 2020 are set out below.

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Courts Address COVID-19 Issues in Prisons and Jails. New October AELE Law Journal article posted at http://www.aele.org/law/2020all10/2020-10MLJ301.pdf 

Public Safety Discipline and Internal Investigations Seminar --- Attend Virtually On Demand.  A 3.5-day updated seminar on "Public Safety Discipline and Internal Investigations." A first: You can virtually attend the seminar on demand! The seminar became available on Monday, September 28, 2020 and will remain open for 60 days. You can register during the month of October and still have plenty of time to successfully complete this important AELE seminar. Another first is online registration and payment.  ON-DEMAND attendance at the seminar enables you to attend, review, and complete the entire seminar at your convenience, in comfortable surroundings, and gives you the opportunity to replay presentations to make sure you hear the important points of the many presenters. After completing the seminar, you can print out a customized attendance certificate, or take a short assessment and upon its passing, print out a customized certificate that counts as a program credit toward the exclusive AELE Certified Litigation Specialist designation. For registration and more information, click on http://www.aele.org/public-safety-discipline-and-internal-investigations.html

October 2020 Law Enforcement Liability Reporter: This issue has cases on assault and battery: physical, electronic control weapons: dart and stun modes, false arrest: no warrant, Federal Tort Claims Act, firearms related: intentional use, firearms related: Second Amendment issues, First Amendment, and medical care. http://www.aele.org/law/2020all10/LR2020OCT.pdf

October 2020 Fire, Police & Corrections Personnel Reporter: This issue has cases on arbitration procedures, Bill of Rights laws, First Amendment, homosexual employees, political discrimination, retaliatory personnel actions, retirement benefits, sex discrimination, whistleblower protection, and workers’ compensation. http://www.aele.org/law/2020all10/FP2020OCT.pdf

October 2020 Jail and Prisoner Law Bulletin: This issue has cases on medical care, medical care: vision, prisoner assault: by inmate, prisoner death/injury, prisoner suicide, retaliation, search and seizure: body cavity, and strip searches: prisoners. http://www.aele.org/law/2020all10/JB2020OCT.pdf

 

School district audits released during the week ending October 2, 2020

On October 2, 2020, New York State Comptroller Thomas P. DiNapoli announced the following school district audits have been issued. 

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Northern Adirondack Central School District – Financial Condition (Clinton County and Franklin County) Auditors found expenditures have exceeded appropriations by a total $626,000 in 2017-18 and 2018-19. Additionally, the budgets are not structurally balanced and have used $1.5 million in appropriated fund balance to fund operations. Because of the district’s ongoing reliance on fund balance to finance expenditures, the total fund balance has declined from about $2.5 million at the beginning of 2017-18 to about $1 million at the end of 2018-19. In addition, the board has not adopted a multiyear financial plan or a plan to address the declining fund balance. 

Northern Adirondack Central School District – Leave Accruals (Clinton County and Franklin County) Auditors determined that employees are allowed to earn vacation leave accruals that exceed the amount allowed in board-approved contracts. Errors occurred in the leave records maintained for 24 of the 33 (73 percent) employees tested. The district overpaid seven employees $29,686 for unused leave accruals. 

Owego-Apalachin Central School District – Special Education Services and Medicaid Reimbursements (Tioga County)  District officials did not ensure that students received all services in accordance with their individual education programs (IEP). Auditors reviewed IEPs for 28 students who received services in 2018-19. They found that these students did not receive 1,057 (39 percent) required physical therapy, speech therapy, occupational therapy and counseling sessions. Five students did not receive any required therapy and counseling services. In addition, officials did not have procedures in place to reschedule missed sessions. The district was not reimbursed for 427 of 729 eligible services (59 percent) totaling $12,170.  

Red Creek Central School District – Financial Management (Wayne County and Cayuga County)   Auditors determined that actions taken by the board and district officials to manage financial condition were not transparent and more taxes were levied than necessary to sustain operations. Approximately $1.5 million (72 percent) of appropriated fund balance from 2016-17 through 2018-19 was not used as planned. In addition, the board did not adopt multiyear financial and capital plans.

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Municipal audits issued during the week ending October 2, 2020

On October 2, 2020, New York State Comptroller Thomas P. DiNapoli announced the following local government audits was issued.

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City of Amsterdam – Budget Review (Montgomery County) Auditors found that certain significant revenue and expenditure projections in the 2020-21 adopted budget are not reasonable and other matters that require city officials’ attention. Auditors identified several funds that are not balanced or are not reasonable. The city’s tax levy of $6,047,472 also exceeds the allowable tax levy limit by $187,957. However, the council adopted a local law to override the tax levy limit prior to budget adoption and, as such, was authorized to adopt a budget that included a levy in excess of the tax levy limit.

 

Failure to satisfy procedural requirements bars considering the merits of a CPLR Article 78 petition challenging the termination of a probationary employee

The Petitioner [Teacher] initiated a CPLR Article 78 proceeding in which she challenged her dismissal from her employment as a probationary teacher. Supreme Court dismissed Teacher's Article 78 petition for a number of procedural reasons and Teacher appealed.

Supreme Court dismissed Teacher's petition after determining that Teacher had failed to exhaust her administrative remedies. The decision notes that with respect to the "ineffective" performance rating in her evaluation, her administrative appeal was still pending at the time she had filed her Article 78 petition. The Appellate Division sustained the Supreme Court ruling with respect to Teacher's failure to exhaust her administrative remedy.

Supreme Court had found that Teacher's challenge to the discontinuance of her probationary employment status was time-barred. The Appellate Division affirmed the Supreme Court's ruling concerning the issue of Teacher's failure to file a timely Article 78 petition, explaining that statute of limitations to challenge the decision to terminate her employment as a probationary employee expired on December 12, four months after the effective date of her termination the previous August 11.

Addressing Teacher's motion "to renew," the Appellate Division explained that such a motion must be based upon new facts, i.e., facts that were not offered on Teacher's prior motion "to renew" and that would change the prior determination. As Teacher presented no new relevant facts in the motion to renew she had submitted to Supreme Court, the Appellate Division affirmed Supreme Court's refusal to grant her motion to renew, opining that Teacher's motion to renew failed to meet this standard. 

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_05141.htm