School board's discontinuing probationary employee's services based on the school superintendent's recommendation appealed

In Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, the Court of Appeals ruled that the services of a probationary teacher may be discontinued at any time during the probationary period unless the teacher shows that a board terminated service "for a constitutionally impermissible purpose, in violation of a statutory proscription, or in bad faith."

In this appeal to Commissioner of Education, Commissioner Betty A. Rosa considered the application of Education Law §3031 with respect to the school superintendent's response to a probationary teacher’s [Probationer] request that the superintendent provide written reasons for her or his recommendation to the School Board that her services be discontinued.  In the words of Dr. Rosa, §3031 is “a procedural device to force the superintendent to lay bare the reasons for his [or her] recommendation so that [a] probationer [can] ascertain whether any were constitutionally or statutorily impermissible.”

Citing Rathbone v Board of Educ. of HamiltonCent. School Dist., 47 AD2d 172, [3d Dept 1975], affd 41 NY2d 825, Commissioner Rosa noted that "[t]he superintendent’s reasons must be sufficiently specific so that the teacher can submit “a reasonable and logical reply” thereto. In this instance, said Dr. Rosa, the superintendent recommended Probationer’s termination based on her (1) use of “controversial materials”; (2) “[f]ailure to utilize [the] approved curriculum”; and (3) “promot[ing] misinformation” but failed to provide any dates or specific details. This, opined Commissioner Rosa, deprived the Probationer of her ability to argue that her conduct was protected by the United States or New York Constitutions, explaining "[i]t is well settled that a board of education may not dismiss or refuse to grant tenure to an employee in retaliation for the exercise of constitutionally guaranteed freedoms or statute."*

The Commissioner remanded the matter to the superintendent for further proceedings, noting the procedure for doing so was described by the Appellate Division in Rathbone, [supra] at page 178, where the court instructed Rathbone's superintendent to "resubmit [the] statement of reasons for [the] recommendation of dismissal." Further, said the Rathbone court, "[i]f these reasons are subsequently demonstrated to be unlawful, or if they are not accepted by the Board of Education, [Rathbone] will then be entitled to her benefits from the date of the unlawful dismissal" but if adequate reasons are given "which in the superintendent’s view would have justified [Rathbone's] dismissal ... and the board, after [Rathbone] has had the opportunity to respond, chooses to accept the recommendation, [Rathbone] should not receive back pay or benefits …."

*The Commissioner declined to consider the more specific reasons for Probationer’s discontinuance that the superintendent articulated for the first time after Probationer's appeal to the Commissioner, explaining that time to provide the Probationer with these reasons "was at the local level and permitting the superintendent to proceed in this matter would effectively abrogate the protections of Education Law §3031."

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

Parol evidence may not be used in challenging a written agreement that is complete, clear and unambiguous on its face

When parties set forth their agreement in a clear, complete document, the writing should be "enforced according to its terms," and "[e]vidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing" said the Court of Appeals in W.W.W. Assoc. v Giancontieri, 77 NY2d 157.

The relevant collective bargaining agreement [CBA] between Plaintiff's union [CSEA] and the County provided "[a]ny employee who retires on or after 1/1/08 and who is eligible for retiree health insurance benefits, and who opts out of such retiree health insurance due to other coverage, shall receive a cash payout equivalent to fifty (50%) percent of the value of Individual Coverage for the plan with the most active employee enrollees."

Prior to his retirement the Plaintiff in this CPLR Article 78 action had opted out of the County's health insurance benefits as he had other coverage and upon his retirement applied for the appropriate "cash payout equivalent".

The County denied Plaintiff's request for the payout equivalent contending that the Plaintiff was not eligible for retiree health insurance benefits because the NYSHIP Manual for Participating Agencies [NYSHIP] "provided that only an employee enrolled in the NYSHIP program or another employer-sponsored health plan at the time of retirement was eligible to continue coverage in retirement." The County argued that because the Plaintiff had opted out of the County's health insurance benefits prior to his retirement, he was not entitled to the payout for opting out of retiree health insurance benefits pursuant to the CBA.

Supreme Court granted Plaintiff's motion for summary judgment and County appealed.

The Appellate Division sustained the Supreme Court's ruling explaining that "[t]he fundamental, neutral precept of contract interpretation is that agreements are construed in accord with the parties' intent and the best evidence of what parties to a written agreement intend is what they say in their writing". Further, said the court, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms", citing Kolbe v Tibbetts, 22 NY3d 344 and other decisions.

Plaintiff, said the Appellate Division, had "established his prima facie entitlement to judgment as a matter of law by submitting, among other things, a copy of the relevant pages of the CBA" and the County failed to raise a triable issue of fact by submitting a copy of materials set out in the NYSHIP manual.

Click HEREto access Appellate Division decision posted on the Internet.

Attendance Rules for employees of the State as the employer designated management or confidential

Attendance rules officers and employees of the State of New York as the employer designated management or confidential within the meaning of Article 14 of the Civil Service Law, the so-called Taylor Law, were amended effective August 3, 2022 to increase the accumulation of sick leave credits from 15 to 25 days in one year. 

The Organization of Management Confidential Employees (OMCE) supported the amendment to the rule and noted that "it will extend family sick leave benefits to employees in managerial/confidential positions consistent with benefits provided to employees in represented positions."

The text of rule and required statements and analyses may be obtained from: Jennifer Paul, NYS Department of Civil Service, Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: commops@cs.ny.gov.

Audits and reports issued by the New York State Comptroller during the week ending August 5, 2022

New York State Comptroller Thomas P. DiNapoli announced the audits listed below for School Districts and Municipalities were issued during the week ending August 5, 2022:

Click on the text highlighted in color to access the complete audit report.

School District Audits

North Syracuse Central School District – Professional Services (Onondaga County)

District officials did not always seek competition for professional services in accordance with district policy. As a result, services may not have been procured in the most economical manner and in the best interest of the taxpayers. District officials paid $1.2 million to six professional service providers without seeking competition and used a request for proposals (RFP) process to select certain professional service providers many years ago but did not seek new competition. Officials paid $2.1 million to six professional service providers who were selected based on RFPs issued in 2013 and 2014.

 

Somers Central School District – User Accounts and Software Updates (Westchester County)

District officials did not establish adequate controls over user accounts and software updates to help prevent against unauthorized use, access and loss. In addition, officials did not periodically review all network user accounts and permissions. Auditors found 58 network user accounts had unnecessary administrative permissions and 111 network user accounts were unneeded and should have been disabled. Officials also did not adopt an adequate comprehensive information technology contingency plan to minimize the risk of data loss or prevent a serious interruption of services.

 

Municipal Audits

Village of Waterford – Board Oversight (Saratoga County)

The board did not provide adequate oversight of financial operations. Specifically, the board did not establish compensation controls to address the lack of segregation of the treasurer’s duties. The board also did not request or receive adequate monthly reports from the treasurer to adequately monitor operations, ensure bank reconciliations were properly prepared, retained and reviewed or ensure all claims paid in advance were for allowable purposes. 

 

Town of Waterloo – Financial Management (Seneca County)

The board and supervisor did not effectively manage the town’s financial operations, and were unaware of the town’s true financial position, because the supervisor did not maintain accurate accounting records and reports. In addition, the board did not implement adequate corrective action to address prior audit findings and recommendations, which prolonged significant deficiencies, such as inadequate financial policies, procedures, records and reports. The board also did not conduct, or contract for, an annual audit of the supervisor’s records or establish written multiyear financial and capital plans to adequately manage fund balance.

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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 government financial records, track state contracts, and find commonly requested data.

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New York State Comptroller Thomas P. DiNapoli also reported that a former Village of Sherman treasurer was arrested for an alleged theft of $20,000 of town funds, noting that residents’ cash tax payments were then spent at Dollar General, Walmart, QVC and Amazon.

Former Village of Sherman Treasurer Ann Gilbert faces felony charges for the alleged theft of more than $20,000 in cash paid by residents from 2012 to 2016 for village sewer, water and taxes, according to an investigation by State Comptroller Thomas P. DiNapoli, the Chautauqua County District Attorney Jason Schmidt and the Chautauqua County Sheriff’s Office. Gilbert, 54, who now resides in Florida, was charged with grand larceny in the third degree.*

“Ms. Gilbert allegedly betrayed her neighbors by pocketing tax payments to pay her personal expenses,” DiNapoli said. “I thank District Attorney Schmidt and the Chautauqua County Sheriff’s Office for partnering with my office to hold her accountable.”

“This is not a victimless crime,” District Attorney Schmidt said. “The Village of Sherman, like many of our local municipalities here in Chautauqua County, is engaged in an every-day battle to service its residents with precious little money. Every dollar stolen is a dollar not spent on the community. No one should use their public office for personal gain.”

Ms. Gilbert allegedly embezzled village funds to pay for her personal utility bills and purchases from QVC, Dollar General, Walmart, Amazon and Pampered Chef.

To conceal her crimes, she stopped recording cash village tax payments and, instead, pocketed the money. After the Village of Sherman’s Mayor Colleen Meeder discovered Gilbert’s alleged acts of "jobbery"**, she reported them to the State Comptroller and the District Attorney who commenced an investigation. Gilbert was the village treasurer from June 2007 until August 2016.

On April 22, 2022, the State Comptroller’s Office released an audit detailing financial mismanagement of cash receipts and making recommendations for improved internal controls.

Gilbert was arrested today pending arraignment in Chautauqua County Court before Judge Marilyn Gerace.

The arrest was a result of a joint investigation between the State Comptroller’s Office, the Chautauqua County District Attorney’s Office and the Chautauqua County Sheriff’s Office.

* The charges against the defendant are merely accusations and the defendant is presumed innocent until and unless proven guilty in a court of law.

** As noted in previous NYPPL reports of such alleged acts of such misconduct, there is a term for such breaches of the public trust, "jobbery." Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain".

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Since taking office in 2007, DiNapoli has 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 filing a complaint online at investigations@osc.ny.gov or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.

Recent decisions issued by New York City Office of Administrative Trials and Hearings Administrative Law Judges

ALJ Julia H. Lee recommended termination of employment for a correction officer who unjustifiably struck an inmate in the face and torso. The correction officer’s claim that he used “soft hand“ techniques in response to a threat from the inmate was contradicted by video evidence and testimony. Click HEREto access Judge Lee's decision and recommendation.

 

ALJ Christine Stecura recommended a 30-day suspension for a correction officer who submitted a false, misleading, incomplete, and inaccurate report regarding a use of force incident by failing to report that she observed another officer headbutt an inmate where the video evidence established that respondent observed the incident from close range and with an unobstructed view. Click HEREto access Judge Stecura's decision and recommendation.

 

ALJ Joan R. Salzman recommended termination of employment for a Department of Correction captain who delivered clothes in a brown paper bag to an inmate after midnight, a few hours before the inmate died of a heart attack due to drug overdose, was unduly familiar with the inmate, and failed to submit an Unusual Incident Report regarding the death. The captain was also found to have used impermissible force when he put another inmate in a chokehold while that inmate was handcuffed, to have submitted a false or misleading report, and to have given false or misleading information about this second incident in an investigatory interview. Click HEREto access Judge Salzman's decision and recommendation.

 

ALJ Salzman recommended a 50-day suspension for a correction officer who she found, had failed to exercise self-control and used impermissible force against an inmate who provoked her. ALJ Salzman also found that the officer filed a misleading report about the incident, omitting important information and minimizing facts unfavorable to her. Click HEREto access Judge Salzman's decision and recommendation.

 

ALJ Ingrid M. Addison recommended a thirty-five-day suspension without pay for a Triborough Bridge & Tunnel Authority lieutenant who sent text messages to a subordinate that violated the MTA All Agency Policy Directive against sexual and other harassment. ALJ Addison also found that respondent regularly referred to subordinates using derogatory, discriminatory language but the evidence did not establish that respondent made unsolicited sexual advances towards the complaining subordinate. Click HEREto access Judge Addison's decision and recommendation.

 

ALJ Joan R. Salzman recommended a 20-day suspension, with credit for five days pre-trial suspension served, finding a correction officer negligently failed to supervise an inmate who slipped off his handcuffs unseen by the officer and his partner and escaped from a group of inmates the officer had driven to a Department of Correction facility parking lot in an agency bus. ALJ Salzman found that the officers did not maintain constant visual supervision of the inmates as they walked into the facility, and that the officer stayed with the bus while his partner walked ahead of the inmates, contrary to agency protocol for escorting inmates. The inmate hid in the parking lot for seven or eight minutes, sometimes under a parked bus, and then was captured and secured into custody. The officer, who had no prior record of discipline in his eight years of DOC service, gave forthright testimony and admitted his error. Click HEREto access Judge Saltzman's decision and recommendation.

 

ALJ Kevin F. Casey recommended termination of employment for a correction officer who engaged in a sexual relationship with an inmate, provided the inmate with contraband, and told the inmate to delay reporting a rape committed by another officer. Click HEREto access Judge Casey's decision and recommendation.

 

ALJ Michael D. Turilli recommended termination of employment for a correction officer who was excessively absent and found to be medically incompetent to perform his duties as a correction officer. The officer called out sick on 295 days from mid November 2020 through the date of trial in February 2022. Click HEREto access Judge Turilli's decision and recommendation.