An Education Law §306 appeal to the Commissioner of Education will be dismissed if not properly served

The Petitioner in this appeal to the Commissioner of Education sought the removal of a member of the Board of Education [Member] alleging the Member uttered an obscenity in response to comments made by Petitioner.  

Petitioner's complainant alleged that Member directed “[u]nprofessional, rude, and vulgar language” toward her in response to her questions.  As redress, Petitioner asked the Commissioner [1] to remove the Member from the board; [2] bar the Member from running and serving on any school board in the future; and [3] give Petitioner a written apology for his unprofessional behavior.

Member, conceding that he used an obscenity but denied making the specific remark attributed to him by Petitioner, contended that Petitioner's appeal must be dismissed for a number of reasons including "improper service." 

The Commissioner agree that the appeal must be dismissed "for lack of personal service" as §275.8 (a) of the Commissioner’s regulations requires that "the petition be personally served upon each named respondent." Noting that Petitioner’s affidavit of service indicates that the petition was sent by U.S.mail and there was no evidence that Petitioner made any other attempt at effectuating service. Significantly, the Commissioner pointed out that "service by U.S.mail" does not constitute valid service of a petition pursuant to Education Law §306.

The Commissioner then noted that even assuming that Petitioner effected valid service on the district clerk, this would not constitute service on Member.  Citing 8 NYCRR 275.8[a], the Commissioner said that although a district clerk is authorized to accept service on behalf of the board of education, "the district clerk generally cannot do so for individual respondents."

Observing that Petitioner's application must be denied on procedural grounds, the Commissioner opined that Member’s conduct "was entirely inappropriate, particularly for a member of a board of education" and admonish Member “to comport himself in the future in a manner befitting a holder of public office.”

Click HEREto access the full text of the Commissioner's decision.

New York's Governor Kathy Hochul announces new senior administration appointments

On September 1, 2021, Governor Kathy Hochul announced two senior appointments to her administration. 

Kathryn Garcia has been appointed Director of State Operations. Previously, she served as the Commissioner of the New York City Department of Sanitation, leading its 9,700 uniformed and civilian employees. Over the course of more than six years at the helm, Ms. Garcia led the department through nearly 15 feet of snow, expanded environmental programs from e-waste collection to the largest curbside organics program and implemented innovative technology solutions to manage the both its personnel and fleet. In addition to her duties at the Department of Sanitation, she served as the City's Lead Czar, developing a plan to eliminate childhood elevated blood lead levels, and during the winter of 2019, she also stepped in as the interim Chair of the New York City Housing Authority to begin implementation of an agreement with the federal government. During the pandemic, Commissioner Garcia served as the COVID-19 Food Czar, delivering over 1 million meals a day to hungry New Yorkers. A lifelong New Yorker, Commissioner Garcia launched her career as an intern at the Department of Sanitation. Before returning to the Department as Commissioner, she served as Chief Operating Officer at the New York City Department of Environmental Protection, where she was responsible for the operation of the City's water supply, water and sewer system, and wastewater treatment plants. Prior to her service at DEP, Garcia was Vice President at Appleseed. Commissioner Garcia earned her B.A. at the University of Wisconsin-Madison.

Neysa Alsina, Esq. has been appointed Special Advisor on Pandemic Relief.

Ms. Alsina previously served as chief counsel to the New York City Comptroller, overseeing the Office's legal affairs and representing its interests in safeguarding the fiscal health of the City and the assets of the City's five public pension systems. Ms. Alsina previously served as Senior Policy Advisor to Congresswoman Nydia M. Velázquez in Washington, D.C. Prior to that role, she was the Counsel to the New York City Bar Association where she provided legal advice on a broad range of matters. Ms. Alisna also previously counseled on a variety of legal matters at Municipal Credit Union. Ms. Alsina received a J.D. from Fordham University School of Law and a B.A. and B.S. from Rutgers University.

Accolades submitted by current and former supervisors tempers the penalty recommended be imposed on a correction officer found guilty of using excessive force against an inmate

OATH Administrative Law Judge Ingrid M. Addison recommended a 60-day suspension without pay for a Department of Correction correction officer [CO] found guilty of disciplinary charges involving the use of excessive force against an inmate whom CO struck in the face and head on multiple occasions, submitting a false and misleading use of force report regarding the incident, and having another officer who was not his supervisor complete his report.

Judge Addison found the CO’s defense that he felt himself in imminent danger of serious bodily injury to be incredible, making his use of deadly force unjustified. The ALJ also found that CO mischaracterized the inmate’s posture in his report and at his interview, in an attempt to justify his own reaction.

ALJ Addison, however, recommended that CO be suspended for 60 days without pay in lieu of termination because of numerous accolades from current and former supervisors at the Department as well as from his former supervising Coast Guard official, suggesting that CO's behavior in this case was a significant departure from his norm.

Click HERE to access Judge Addison findings and recommendation.

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A Reasonable Disciplinary Penalty Under the Circumstances- The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE.

 

Former Economic Advisor to President Obama to Become New York's Top Financial Regulator

On August 31, 2021, Governor Kathy Hochul announced that Adrienne Harris, Esq.  has been nominated to lead the New York State Department of Financial Services as its next Superintendent. Formerly a top economic advisor to President Obama, Ms. Harris will become the state's top financial regulator tasked with overseeing the banking and insurance industries and their compliance with state laws as New York works to rebuild its economy in the wake of the COVID-19 pandemic, if confirmed by the Senate.

Ms. Harris began her career as an Associate at Sullivan and Cromwell LLP in New York City representing a number of U.S. and non-U.S. based corporations in various forms of litigation and regulatory matters, before accepting a position at the United States Department of the Treasury under President Obama. While at the Treasury Department, Ms. Harris served as a Senior Advisor to both Acting Deputy Secretary and Under Secretary for Domestic Finance, Mary Miller, and Deputy Secretary, Sarah Bloom Raskin. As Senior Advisor, Ms. Harris focused on a number of financial policy issue areas which were, and continue to be, critical to the advancement of the national economy. This work ranged from helping jumpstart national financial reform efforts to finding ways to advance fintech, identifying solutions to the student loan crisis, analyzing the nexus between foreign investment and national security, and working to promote financial intelligence and health in communities throughout the country.

Following her time at the Treasury Department, Ms. Harris then joined The White House, where she was appointed as Special Assistant to the President for Economic Policy, as part of the National Economic Council. In this role, Ms. Harris managed the financial services portfolio, which included developing and executing strategies for financial reform and the implementation of Dodd-Frank, while also continuing to advance fintech initiatives, consumer protections for the American public, cybersecurity and housing finance reform priorities.

Since leaving the White House in January 2017, Ms. Harris went on to serve as General Counsel and Chief Business Officer, and presently as Advisor at States Title, Inc. (now DOMA), which provides title insurance and settlement services in a number of state throughout the nation. Ms. Harris also currently serves as a Professor and Faculty Co-Director at the Gerald R. Ford School of Public Policy's Center on Finance, Law and Policy at the University of Michigan, as well as a Senior Advisor at the Brunswick Group in Washington D.C. where she advises multinational corporations on mergers and acquisitions, stakeholder communications and management, future-proofing and policy intelligence.

Ms. Harris graduated from Georgetown University with a Bachelor of Arts degree and subsequently earned her Juris Doctor from Columbia Law School and a Master's in Business Administration from New York University.

Employment by a different school district, in and of itself, did not extinguish an educator's preferred list rights with the school district from which the educator was excessed

In this appeal to the Commissioner of Education the plaintiff [Petitioner] alleged the School District [District] failed to offer her a position in accordance with her preferred list rights to reinstatement by the District following her layoff. 

Initially Petitioner was second on the preferred list list.  Subsequently the District appointed another individual, not the first individual on the preferred list, as a substitute and, thereafter, another educator not the first name on the preferredlist as a leave replacement teacher. 

The Teachers’ Association [Association] filed a grievance alleging that the District violated the terms of their collective bargaining agreement “when it failed to notify teachers whose names [we]re on the Preferred Eligibility List [PEL] for K-6 certification of [vacancies] within their certification area during the school year 2019-20.”  The District stated it was committed “to adhere to all legal requirements regarding recalling teachers from the PEL, disclaimed any wrongdoing and ultimately a representative of the Association submitted a letter memorializing  Association’s "intent to withdraw its grievance with prejudice." Petitioner appealed.

Claiming that she was the most senior individual on the PEL list at time other individuals were employed by the District, Petitioner contended she should have been recalled to the position. As redress, Petitioner sought an “order requiring the District to pay her the wages she would have received” from February to May 2020 together with $2,500 per month during this time period she said represented "her out-of-pocket costs for health insurance."

The District, in addition to arguing that Petitioner's appeal [1] must be dismissed as untimely and [2] for failure to join a necessary party," denied that Petitioner was entitled to recall from the PEL prior to June 2020, or that she is entitled to any of the relief she demanded.

Addressing a number of procedural issues, the Commissioner dismissed Petitioner's appeal as untimely, explaining that an appeal the Commissioner "must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown," citing 8 NYCRR 275.16.

The Commissioner opined that where the alleged wrong is that another individual  has been appointed to a position in violation of the petitioner’s eligible list rights, the petitioner becomes aggrieved "on the date that such other person commences service in the position at issue." 

However, noted the Commissioner, "under certain circumstances, an appeal concerning PEL rights may be commenced within 30 days of discovery of an alleged wrongdoing." In this instance Petitioner admitted that she learned of another educator's appointment to the position May 23, 2020.  

In the words of the Commissioner, "Assuming without deciding that the 30-day time limitation ran from [May 23, 2020], the calculation most favorable to [Petitioner, Petitioner’s] service of the petition on September 5, 2020 was 105 days thereafter."

Petitioner claimed that the delay should be excused because the instant matter was the subject of a pending grievance.  Rejecting this argument, the Commissioner said "the existence of a union grievance does not affect the time in which to bring an appeal." As Petitioner failed "to set forth any good cause for such delay in the petition," the Commissioner ruled that the appeal must be dismissed as untimely.*

Finally, the Commissioner pointed out that were Petitioner's appeal timely, it would be dismissed for failure to join a necessary party, another teacher standing higher on the District's PEL. The fact that the educator standing higher on the PEL had taken a position with another school district and had a contract for the school year,  opined the Commissioner, did not "in and of itself, did not extinguish [the teacher's] preferred eligibility rights" with the District and thus the educator employed by the other school district remained a "necessary party" insofar as resolving Petitioner's appeal was concerned. 

* Typically seeking an administrative remedy or reconsideration of a final administrative determination does not toll the running of a controlling statute of limitations set by law.

Click HERE to access the Commissioner's decision in this appeal.