Performance reports and the testimony by administrators submitting the reports considered by the arbitrator in a disciplinary hearing

Supreme Court denied the Plaintiff's petition to vacate an arbitration award terminating Plaintiff's employment and granted the Appointing Authority's cross motion to dismiss Plaintiff's petition. Plaintiff appealed Supreme Court's disposition of the matter.

The Appellate Division unanimously affirmed [1] the Arbitrator's finding the Petitioner guilty of the disciplinary charges and specifications filed against him and [2] the penalty imposed, dismissal from his position. The court noted that the Arbitrator's decision was supported by the evidence, which included "eight observation reports and credible testimony of the principal and assistant principals who authored those reports," which described Plaintiff's persistent teaching deficiencies and inability to control his students.

Further, said the court, "[t]he evidence also demonstrated the school administrators' efforts to remediate [Plaintiff's] deficiencies, which ultimately were unsuccessful due to [Plaintiff's] lack of effort or interest in improving his performance."

Addressing the penalty imposed, termination of Plaintiff's employment, the Appellate Division opined that the penalty of dismissal "does not shock the conscience" in light of the prior disciplinary action taken against Plaintiff's which documented Plaintiff's "inability to meet standards of effective instruction" after considerable attempts were made to help him to improve his performance.

Click HERE to access the Appellate Division's decision.

 

 

Recall rights of educators receiving disability retirement benefits from the New York State Teachers' Retirement System

Plaintiff in this CPLR Article 78 proceeding applied for and was granted disability retirement benefits by the New York State Teachers' Retirement System [TRS].* 

Subsequently Plaintiff's condition improved and the school district [Board] recalled him and appointed Plaintiff as a probationary teacher. The Board subsequently summarily terminated Plaintiff from that position under color of §3013 of the Education Law and then appointed another individual to replace him.

Plaintiff challenged the Board's action, seeking a court order annulling the Board's  terminating his employment and directing the Board to reinstatement him to the position with back pay. Plaintiff argued, among other things, that the Board had "violated his recall rights pursuant to Education Law §2510 and interfered with his tenure rights by unlawfully terminating him without a hearing" in violation of §2510[3][a] of the Education Law. The Board, in its defense, contended, among other things, that Education Law §2510 only applied to small city school districts and Plaintiff's employer was a central school district.

Supreme Court granted Plaintiff's petition, holding that both Education Law §§2510(3)(a) and 3013(3)(a) applied under the circumstances. The court opined  that "the overall statutory scheme of both sections, as it related to recall rights, 'are most effectuated by affording similar protections to teachers within all school districts,' regardless of size." The court also ruled, among other things, that Plaintiff did not give up his recall rights upon acceptance of the position, and, in doing so, he also did not relinquish his rights to tenure.

The Board appealed Supreme Court's ruling, which ruling was affirmed by the Appellate Division following its analysis of the legislative history of the provisions of the Education Law respectively relied upon by the parties. 

Although the Board contended that Supreme Court erred in granting Plaintiff's petition as the controlling law is Education Law §3013, rather than Education Law §2510, arguing that §2510 does not grant recall rights to teachers who received disability retirement, the Appellate Division held:

1. Its review of Plaintiff's CPLR Article 78 claims is limited to whether the Board's determination, made without a hearing, was arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion;

2. No deference is given to the Board's interpretation of the law as the questions raised on appeal depend only "the accurate apprehension of legislative intent;" and

3. "The main goal in statutory construction is to discern the will of the Legislature and, as the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof".

Citing Matter of Soriano v Elia, 155 AD3d 1496, [leave to appeal denied 31 NY3d 913], the Appellate Division held that Education Law §2510(3)(a) supersedes Educational Law §3013(3) (a) "as it regards recall rights, and, consequently, it applies to all school districts, not just those districts within cities with less than 125,000 inhabitants."

The court pointed out that "Education Law §2510 has generally not been limited in its application to small city school districts; rather, it has been applied to other types of school districts, including central school districts," citing a number of court decisions including Van Derzee v Board of Educ. of Odessa-Montour Cent. School Dist., 228 AD2d 998, leave to appeal denied 89 NY2d 803.

Accordingly, the Appellate Division found that Plaintiff in the instant appeal "was entitled to recall rights pursuant to Education Law §2510(3)(a), which included, among other things, an opportunity for an administrative hearing prior to his termination," and held that "the Board's summary termination of [Plaintiff's]  employment was affected by an error of law and Supreme Court properly granted [Plaintiff's] petition."

* See §511 of the Education Law, which provides for a member of the New York State Teachers' Retirement System's "Retirement on account of disability" in general, and subdivisions (4), (5), and (6) of §511 of the Education Law with respect to discontinuing such disability retirement status in particular.

Click HERE to access the Appellate Division's decision. 

 

Former school district treasurer sentenced after pleading guilty to stealing school district funds

This decision illustrates acts of misconduct by a public official called Jobbery, i.e., using one's public office or position of trust for ones' personal gain or advantage.

On May 14, 2021, State Comptroller Thomas P. DiNapoli reported that a former school district treasurer pled guilty to stealing $34,000 from the school district at which she was employed.

The former district treasurer admitted she stole about $24,000 by depositing checks payable to the school district into bank accounts that she controlled. She also admitted stealing at least $10,000 more by using the school district’s Amazon account and credit cards to purchase personal items while serving as the district's treasurer over a six year period. Pleading guilty to two counts of federal program theft for stealing from a school district that received federal funds, she was sentenced to two years of probation, will be required to serve 50 hours of community service and was ordered to pay $34,000 in restitution.

Comptroller DiNapoli said that this case was investigated in partnership with the FBI and the New York State Police and was prosecuted by the U.S. Attorney's Office for the Northern District of New York.

Since taking office in 2007, DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by mailing a complaint to Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236, or by filing a complaint online at investigations@osc.state.ny.us.

 

The top 20 NYPPL searchers made during the weekend ending May 16, 2021

Have you ever wonder what other NYPER readers are researching over a weekend?

Below are the headings of the top 20 NYPPL items accessed during the weekend ending May 16, 2021.

Reports issued during the week ending May 14, 2021 by the New York State Comptroller

Giving effect to the plain meaning of the relevant statutory language is the clearest indicator of legislative intent

Education Law Blogs

Ability to pass hearing test without the assistance of a hearing aid found a business necessity for the purpose of qualifying for a security position

Responding to Freedom of Information requests

Residence requirements for public officers

Workers’ compensation benefits not available for injuries sustained by an individual in the course of an altercation unrelated to his or her employment

Absence from an assigned post

Distinguishing between “constructive criticism” and a “reprimand” in the nature of disciplinary action

Anastasia Titarchuk named Chief Investment Officer of the New York State Common Retirement Fund

Nepotism and public employment in New York State

Requesting reconsideration of a final administrative decision does not serve to toll or extend the running of the controlling statute of limitations

IRS Alerts Payroll and HR Professionals to Phishing Schemes

Final administrative determination for the purposes of determining the statute of limitations

At-will employee not entitled to a pre-termination hearing

Important Information on W-2/SSN Data Theft Scam

Terminating an educator during his or her probationary period

Conducting disciplinary hearings in absentia

Court rules that the employer rebutted the employee’s prima facie case it unlawfully discriminated against him because of his race

Concerning name-clearing hearings

 

 

 

Reports issued during the week ending May 14, 2021 by the New York State Comptroller

New York State Comptroller Thomas P. DiNapoli announced the reports listed below during the week ending May 14, 2021. 

 

Reviews of adopted 2021 budgets

Auditors conducted reviews of 20 adopted budgets of various counties, cities, towns and villages across the state to assess whether local officials adequately considered the impact of the pandemic on their financial operations while developing their 2021 fiscal year budgets. Below are the findings of some of the communities reviewed:

Click on the text highlighted in color to access these reviews.

Adequacy of 2021 Budgets - Town of Bolton (Warren County) Auditors found that officials for the Town of Bolton adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget. Due to uncertainties in available state funding for highway improvements that were planned to be made in 2020, officials delayed highway improvements from 2020 to 2021. The delays carried over their 2020 revenue estimate for state funding to 2021.

Adequacy of 2021 Budgets - Town of Elma (Erie County) Auditors found that officials for the Town of Elma adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets - Essex County Auditors found that Essex County officials adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets - City of Jamestown (Chautauqua County) Auditors found that officials for the City of Jamestown adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget.

Adequacy of 2021 Budgets - Town of Niskayuna (Schenectady County) Auditors found that officials for the Town of Niskayuna adequately assessed the impact of the pandemic on financial operations while developing estimates for significant revenues and expenditures in the 2021 adopted budget. However, officials balanced the 2021 adopted budget by including negative appropriations totaling $663,254. Those funds were identified as “2021 budget challenge” across departments in the general fund, highway fund, water district and two sewer districts. When adopting the budget, officials did not identify the specific appropriations in each department from which these budgeted cost savings would be realized nor did they develop a cost savings plan. This is not an appropriate budgeting method. As a result, the board adopted an out of balance budget.

Other audits released:

City of Amsterdam - Budget Review (Montgomery County) Auditors found that certain significant revenue and expenditure projections in the 2021-22 proposed budget are not reasonable and identified other matters that require city officials’ attention. The proposed general fund budget includes estimated revenues of $975,000 for federal aid anticipated to be received by the city through the Federal American Rescue Plan Act of 2021. The timing of the receipt of funds from the Act is uncertain at the time. Once received, the funds will come with restrictions on what they can be used for. The proposed budgets for the general and recreation funds are not structurally balanced because they include subsidies from other funds to finance their operations.

City of Long Beach – Budget Review (Nassau County) The city's financial condition remains in significant fiscal stress. The proposed general fund budget of $93.6 million is structurally imbalanced because the city continues to issue debt to finance recurring operating expenditures. The continued reliance on proceeds of long-term debt to finance recurring operating expenditures will further diminish the city's ability to finance needed services in future budgets. The city's proposed budget includes a tax levy of $50.5 million, which is $3 million above the legal limit, unless the city council overrides the tax levy limit. The proposed budget also includes a 4 percent water rate increase. However, at the time of the review, the city council had not authorized the rate increase. Based on the city's historical overtime cost trends, the city's overtime appropriation appears insufficient. City officials did not include cash flow projections in the proposed budget. Although not required, cash flow projections would provide officials with another gauge of the effectiveness of the proposed budget. City officials developed a "budget timeline," but they never confirmed an actual budget adoption date.

Town of Springfield – Accounting Records and Reports (Otsego County) The current supervisor did not maintain complete, accurate and timely accounting records and reports. As a result, the board was not provided with the necessary financial reports and information to properly oversee town finances. During the audit period, the current supervisor did not prepare bank reconciliations, record receipts in the financial accounting software, or provide the board with detailed monthly budget-to-actual reports. In addition, the annual financial reports required by the State Comptroller’s Office were not filed. The board did not annually audit or provide for an audit of the supervisor’s records and reports, as required.

Town of Springfield – Credit Card Purchases (Otsego County) The town board did not ensure credit card purchases were adequately supported, for legitimate purposes or approved before payment. Credit card statements were mailed to the prior supervisor and not provided to the board. They were also not always reconciled with supporting documentation before approval. The board approved payment of 116 credit card purchases totaling $18,014 without adequate supporting documentation. Auditors were unable to determine the appropriateness of an online shopping membership totaling $420 and they were unable to locate a ladder purchased for $585. Credit card reward points worth at least $1,250 were redeemed during the audit period. Auditors were unable to determine whether these points were redeemed to benefit the town.

 

Identity Theft complaints in New York State

Another Report issued by the Comptroller on May 14, 2021 noted that Identity Theft complaints in New York State in 2020 was 85% greater than in 2019.

Identity thefts in New York surged during the pandemic with more than 67,000 complaints filed statewide in 2020, which was 85 percent more than the previous year and more than four times the annual total from a decade earlier, according to a report released by the Comptroller.

The New York City metropolitan area had the highest rate of identity theft reports to the Federal Trade Commission (FTC) per capita at 403 reports per 100,000 people, followed by Poughkeepsie-Newburgh-Middletown (315) and Rochester (303) metropolitan areas.

The COVID-19 era has been marked by new varieties of financial fraud, including new identity theft scams. Although the full impact of the pandemic on the problem is not yet known, the Comptroller said that "New Yorkers should be aware of potential scams and guard against them."

The FTC has compiled identity theft complaints related to COVID-19 for 2020 through mid-March 2021, reporting 3,617 in New York. Of the state’s identity theft reports, about two-thirds (2,375) were related to information misused to try to get a government document or benefits such as economic relief checks or unemployment insurance.

According to the FTC, imposters are filing claims for unemployment benefits using the names and personal information of people who have not filed claims. People learn about the fraud when they get a notice from the state unemployment benefits office or their employer about their supposed application for benefits. As of late April 2021, the state Department of Labor (DOL) said it had identified over 1.1 million fraudulent unemployment benefit claims during the COVID-19 pandemic, preventing more than $12.3 billion in stolen benefits.

Comptroller DiNapoli’s office began an audit of the DOL in February. His office first conducted an assessment of the risk of potential identity theft fraud since the beginning of the pandemic, which included looking at complaints, large increases in payments, new programs and criteria, and changes to the internet technology. This assessment found numerous red flags that led DiNapoli’s office to launch a full audit.

Identity thieves have also attempted to leverage news of government COVID-related stimulus payments by posing as someone from an official organization and asking for personal or financial information. They have also tried to exploit pandemic fears by asking victims to pay out of pocket to get a COVID-19 vaccine or to put their name on a vaccine waiting list and, in the process, take their Social Security, bank account or credit card information. 

Private businesses that collect and maintain personal information must redouble their efforts to safeguard such data, DiNapoli said. He called on social media companies to promote best practices and proactively educate users about ways to keep private information confidential.

The Comptroller recommends the following actions, among others, to help prevent becoming a victim of identity theft:

1. Carry only the credit and bank cards you need;

2. Use two-factor authentication for online security where possible;

3. Use a password manager or strong passwords, including a mixture of capital letters, numbers, and symbols, and change passwords frequently;

4. Check bank or credit statements regularly; and

5. When online shopping, look for indications that the site is secure, such as a secure URL that begins with “https” (rather than “http”) and a lock icon near your browser’s location field.

Click on The Increasing Threat of Identity Theft to access the Comptroller's report posted on the Internet.