A writ of mandamus seeking to compel a public officer to perform a certain act will not be issued if the act is discretionary in nature

Plaintiffs, who are teachers and professional staff employed by a school district [Respondent], commenced this CPLR Article 78 proceeding seeking a writ of mandamus*to compel Respondent to offer courses and sequences in the arts during the school day and equitably throughout the school district "in accordance with regulations promulgated by the New York State Commissioner of Education.

Supreme Court dismissed Plaintiffs' petition and Plaintiffs appealed.

The Appellate Division, noting that a writ of mandamus "is available to compel a governmental entity or officer to perform a ministerial duty, explained that the writ "does not lie to compel an act which involves an exercise of judgment or discretion" and citing Matter of Brusco v Braun, 84 NY2d 674, explained that such a writ is "an extraordinary remedy that is available only in limited circumstances."

In this instance, opined the court, Supreme Court "properly determined that mandamus to compel does not lie" as the regulations relied on by Plaintiffs provide, in relevant part, that a school district "shall offer students the opportunity to complete a three- or five-unit sequence in ... the arts and must provide that opportunity beginning in ninth grade."

In the words of the Appellate Division: "Although the regulations provide that the District must offer students the opportunity for an arts sequence, [Respondent] may exercise discretion in how to do so." The court then explained that "because the actions that [Petitioners] seek to compel are not ministerial in nature but discretionary, mandamus to compel does not apply."

Accordingly, the Appellate Division sustained Supreme Court's ruling.

* A writ of mandamus is one of a number of the ancient “common law” writs and is granted by a court to compel an official to perform acts that such an official is duty-bound to perform. Other such ancients writs include the writ of prohibition, issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction"; the writ of "certiorari," compelling a lower court to send its record of a case to the higher tribunal for review by the higher tribunal; and the writ of  “quo warranto,” which requires a person or body to show by what warrant, office or franchise, held, claimed, or exercised, with respect to that individual or entity performing a particular act or omission. New York State's Civil Practice Law and Rules [CPLR] sets out the modern equivalents of the surviving ancient writs.

Click HERE to access the Appellate Division's decision posted on the Internet.

Educator pleads guilty to submitting false time cards

On May 6, 2022, New York State Comptroller Thomas P. DiNapoli and the Onondaga County District Attorney William Fitzpatrick announced that a teacher [Educator] employed in a school district's "after-school program" [The Twilight Program] to assist students in need of support to graduate "on time" plead guilty to corrupting the government in the 3rd Degree, admitting his having submitted submitting false time cards to the school district.*

This investigation was the result of the coordinated efforts of the New York State Comptroller’s Office and the Onondaga County District Attorney’s Office.

“Abuse of public funds should never be tolerated, but is particularly egregious when an educator takes funds meant to improve students’ lives,” said Comptroller DiNapoli.  “I thank District Attorney Fitzpatrick for his continuing partnership in combating public corruption and for holding [Educator] accountable.”

Teachers participating in the district’s Twilight Program receive additional compensation for teaching classes to Twilight participants. As the program coordinator, Educator was in charge of the Twilight teaching schedule and also received additional compensation for his services at Twilight.

From 2016-2018, Educator regularly left his Twilight position early but submitted time cards that inflated the number of hours he had actually worked at Twilight. He also directed certain Twilight teachers to submit false time sheets that reported that  they were at work when they were not. 

Educator was arrested in May of 2021, together with two Twilight teachers. The  cases involving these other Twilight teachers are still pending.

* Educator also agreed to resign from his employment with the school district. 

New York Public Personnel Law Handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

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 about this e-book click HERE.

 

 

A public retirement system of New York State is required to correct errors made in its administration of retirement benefits

Judgment, Supreme Court, New York County (W. Franc Perry, J.), entered May 11, 2021, denying the petition to annul a determination of respondent Board of Trustees of New York City Employees' Retirement System (NYCERS), which reclassified petitioners from Tier 4 to revised Tier 3/Tier 6 membership, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.

Petitioner in the CPLR Article 78 action were members of various New York State stage and local had left their previous jobs within the various retirement systems and were hired as uniformed sanitation workers by the City of New York after April 1, 2012. These petitioners became sanitation workers and were placed in Tier 4 of the New York City Employees' Retirement System [NYCERS] based on their prior participation in public employee retirement systems.

In 2016, NYCERS determined that it had made an error, and reclassified Petitioners' memberships in NYCERS from the Tier 4 Sanitation 20-Year retirement plan [SA-20] pursuant to Retirement and Social Security Law Article 15 to the revised Tier 3/Tier 6 Sanitation 22-Year retirement plan [SA-22] pursuant to Retirement and Social Security Law Article 14.

The Appellate Division rejected Petitioners' contention that the doctrine of "equitable estoppel" barred NYCERS placing in SA-22. The court explained that NYCER "is mandated by statute to correct errors in administration of retirement benefits," and held that "estoppel may not be invoked to prevent [NYCERS] from reclassifying Petitioners' memberships in SA-22", noting that reading these provisions together determines whether a sanitation worker is subject to the SA-20 or SA-22 plan, based on the date that he or she becomes a sanitation member.

In the words of the Appellate Division, "The legislative history of the amendment supports the conclusion that "new . . . uniformed sanitation . . . members" such as petitioners, who were not sanitation members before April 1, 2012, would be given the "modified Tier 3 police/fire benefits" provided in SA-22."

Further, said the court, "The Retirement and Social Security Law transfer provision, which applies to two of the five individual petitioners, entitles them to credit for prior service. It does not affect the date that they became uniformed sanitation members...."

Finally, opined the Appellate Division, Petitioners' membership reclassification did not violate Article V, §7 of the New York State Constitution which, in pertinent part, provides that "After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired", since "petitioners were never entitled to [SA]-20 benefits to begin with and, thus, did not have a contractual right to those benefits."

Click HEREto access the Appellate Division's posted on the Internet.

 

Audits and reports issued by the New York State Comptroller during the week ending May 6, 2022

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued during the week ending May 6, 2022:

Click on the text highlighted in colorto access the complete audit report.

Municipal Audits

City of Amsterdam – Budget Review (Montgomery County) City officials did not implement all recommendations in the previous budget review letter when preparing the 2022-23 proposed budget. As a result, certain significant revenue and expenditure projections in the 2022-23 proposed budget continue to be unreasonable. 

 

Chenango County Industrial Development Agency – Project Approval and Monitoring (2022M-10)  Although the board evaluated projects prior to approval, it did not adequately establish and document their evaluation and approval process. In addition, the board did not properly monitor the performance of businesses receiving financial benefits. 

 

Town of Dix – Justice Court Operations (Schuyler County) The justices did not ensure all collections were properly collected, recorded, deposited, reported and remitted in a timely and accurate manner, or that all adjudicated cases were reported. They did not provide adequate oversight of the clerk or ensure she was properly trained. Neither the justices nor the clerk prepared monthly accountabilities to ensure that all collections were accurately accounted for, and discrepancies could be promptly identified. As a result, recording and reporting errors occurred, causing the court to owe the Office of the State Comptroller’s Justice Court Fund (JCF) $21,204, victims $1,701 and defendants $439. 

 

Town of North Greenbush – Town Clerk (Rensselaer County) The clerk did not record, deposit, disburse or report all money collected in a timely and accurate manner. As of Dec. 31, 2015, more than $16,000 in cash was collected but not deposited. In 2016, over $13,500 in cash was deposited but not recorded. Remittances to the supervisor were late ranging from one to four months after due. The clerk also did not perform monthly accountabilities to ensure sufficient assets to cover liabilities.  

 

 

Ontario County Four Seasons Development Corporation – Procurement (2021M-197) Corporation officials did not always seek competition or maintain adequate documentation of purchasing processes when procuring goods and services. Auditors reviewed payments totaling $305,033 to nine vendors and found officials made purchases from two vendors totaling $58,375 without seeking competition. Auditors reviewed payments totaling $298,044 to 13 professional services vendors and found officials did not follow a competitive process when selecting two professional service providers, paid a total of $40,253, and did not document the rationale for the process that was followed.

 

Village of Port Jefferson – Justice Court Operations (Suffolk County) The justices did not provide adequate oversight of court operations. As a result, errors and irregularities were found in the court’s records. Bank records provided by the senior court clerk were altered and there was a cash shortage of $2,096. The senior court clerk deposited 12 personal checks totaling $2,096 in place of missing cash and deposited receipts totaling $6,525 into a neighboring village’s bank account and transferred it back two months later without notifying the justices. These findings were referred to outside law enforcement for review.  

 

Village of Sherman – Treasurer’s Cash Receipts (Chautauqua County)  The former treasurer did not record and deposit collections in an accurate manner. The board did not provide adequate oversight of the treasurer and did not annually audit the former treasurer’s records and reports. The former treasurer did not deposit more than $20,000 in recorded real property taxes, water, sewer and general fund receipts collected during the period July 1, 2012, through August 3, 2016. The board and village officials did not establish adequate written policies and procedures over the cash receipt collection process.   

 

Village of Suffern – Budget Review (Rockland County) Auditors found that significant revenue and expenditure estimates in the tentative budget were reasonable, and the village’s tentative budget includes a tax levy of $12,029,454, which is within the limit established by law.

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Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local

An employee cannot be found guilty of disciplinary charges not included in the notice of discipline or a timely amendment to such notice

The employee [Petitioner] was terminated from his position following an investigation conducted by the Inspector General's office into his alleged misconduct and ultimately was served with a notice of disciplinary charges pursuant to Civil Service Law §75. The notice of discipline set out nine charges of purported official misconduct in violation of Penal Law §195.00. Petitioner's answer denied all of the charges and Petitioner requested a hearing.

A §75 disciplinary hearing was held, after which the Hearing Officer recommended dismissal of all of the charges preferred against Petitioner. 

The appointing authority [Director] adopted the Hearing Officer's recommendation to the extent of dismissing all charges except Charge 3. The Director sustained Charge 3 and imposed the penalty of dismissal of Petitioner from his position with the employer. 

Petitioner next commenced a CPLR Article 78  proceeding seeking a court order annulling the Director's determination with respect to Charge 3, contending, among other things, that the Director erred as a matter of law and abused her discretion in finding Petitioner guilty of acts of misconduct that were not alleged in the charge.

Supreme Court transferred the matter to the Appellate Division, which said, "we must annul [the Director's] determination as to [Charge] 3" because it believed that the Petitioner's due process rights were violated.

Charge 2 had alleged that Petitioner had "accosted a particular ... employee with unwanted and inappropriate conversation" while at an after-hours social gathering at a restaurant. The language of Charge 3 addressed Petitioner's behavior toward the same employee at "similar after-hours social functions" as set out in Charge 2.

In addition to denying all of the charges in the notice of discipline, Petitioner requested that the charges be particularized and that he be provided with the names of the employees referred to in the charges. In response to the request for particularization, the employer  served Petitioner with an amended notice of discipline which, among other things, amended Charge 3 to specify that, at these same after-hours social functions, Petitioner inappropriately referred to the employee's sexual orientation but the Charge was "otherwise unchanged."

At the disciplinary hearing, the female employee testified that the conversation described in the amended Charge 3 occurred in the workplace rather than at an "after-hours social function." The Director determined that Charge 3 had proven implicitly and "amended by the testimony of [the female employee] during the hearing." The Appellate Division observed that this "implicit amendment" was first pronounced in the Director's decision, well after the close of proof, for the purpose of conforming the Charge 3 to the proof, which in effect changed the location of Petitioner's alleged misconduct conduct from an after-hours social function to the workplace.

The Appellate Division opined that the Petitioner's due process rights were violated by, in essence, convicting him of uncharged conduct and imposing the severe penalty of termination based on such uncharged conduct. The court noted that the standard of review of such a determination made after a disciplinary hearing is whether it is supported by substantial evidence and the first fundamental of due process is "notice of the charges made." 

This principle, said the court, equally applies to an administrative disciplinary proceeding "for even in that forum no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged," citing Matter of Murrayv Murphy, 24 NY2d 150 and other court decisions. In the words of the court: "Fundamentally, the determination made in a disciplinary proceeding 'must be based on the charges made' and it is error to find a public employee guilty of uncharged specifications of misconduct and impose a penalty thereon."

In some circumstances, however, the Appellate Division noted that amendments of the charges filed against the individual are allowed, calling attention to the fact that "a minor amendment to a charge, made 'part way through [a] hearing, and at a time when [the] petitioner had ample opportunity to respond to the amendment, did not deprive [the petitioner] of due process'."

In contrast, however, the court found that Petitioner was afforded no such opportunity as the amendment was made by the Director in her decision "after the proof was most assuredly closed and the Hearing Officer's determination referred." This was characterized as a "fatal flaw in this argument" as the testimony that was elicited at the hearing essentially amounted to a new charge based on a totally different context: conduct that allegedly took place at an after-hours social functions "was transported to the formal office setting."

Also noted by the court was the fact that the record is void of any request by the employer, "formally or informally, before or during the hearing, to amend the charge to give [Petitioner] notice that the behavior complained of was committed in the workplace."* Further, opined the Appellate Division, "the onus is not upon the employee to make the employer's case for it by objecting when hearing testimony strays from the conduct charged [and the] employee has the right to assume that such testimony will be properly rejected, as the Hearing Officer indicated here."

Accordingly, the Appellate Division found that the portion of the determination sustaining Charge 3 should be annulled.

* The Appellate Division also rejected the employer's argument that the challenged amendment was proper because no objection was made to the "amending" testimony given by the witness at the disciplinary hearing.

Click HERE to access the Appellate Division's posted on the Internet.

New York Public Personnel Law handbooks

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.

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.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE.

The Layoff, Preferred List and Reinstatement Manual -This e-book reviews the relevant laws, rules and regulations, and selected court and administrative decisions. Click HERE for more information.