National search for candidates for Deputy Commissioner, New York State Department of Environmental Conservation

The New York State Department of Environmental Conservation (DEC) has initiated a national search seeking candidates to replace Deputy Commissioner Jared Snyder. Deputy Commissioner Snyder is retiring in December 2022 after 15 years of service with the Department. 

The Deputy Commissioner is responsible for overseeing the development and execution of the State's programs to monitor, protect, and improve air quality through DEC's Division of Air Resources and the implementation of New York's efforts to reduce climate-altering emissions, ramp up renewable energy sources, and help communities adapt to climate change to achieve the goals of the State's ambitious Climate Leadership and Community Protection Act (CLCPA). 

The CLCPA commits New York State to 100% zero-emission electricity by 2040, and a reduction of at least 85% below 1990-level GHG emissions by 2050. 

Minimum qualifications include a Bachelor's degree and nine years of experience in a field related to environmental conservation, protection, or natural resources. At least four years of managerial experience, including responsibility for implementation of program goals and objectives within established budgets, and supervision or coordination of staff to achieve specific objectives. A Master's degree may be substituted for one year of non-managerial experience and a Ph.D. may be substituted for two years of non-managerial experience.

Click HERE for additional information concerning this opportunity.

 

Effort to remove a member of a school board barred by procedural errors

In this appeal to the Commissioner of Education seeking the removal of a member of a school board* the Commissioner addresses a number of procedural issues. 

The Commissioner's decision is set out below:

ROSA., Commissioner.-- Petitioner seeks the removal of Beatriz LeBron (“respondent”) as a member of the Board of Education of the City School District of the City of Rochester (“board”).  The application must be denied.

Pursuant to Part C of chapter 56 of the Laws of 2020, I appointed a monitor to provide oversight, guidance, and technical assistance related to the educational and fiscal policies, practices, programs, and decisions of the Rochester City School District.  The monitor, board, and the superintendent developed an academic improvement plan (“plan”), which was implemented during the 2021-2022 school year.  The plan included a requirement that “[t]he Board … incorporate racial and linguistic bias training into … the professional development plan for all Board [members].”  The board organized such a training, which respondent did not attend.  This application ensued.

Petitioner contends that respondent’s refusal to attend the racial bias training constitutes willful disobedience of “a decision, order, rule or regulation” of the Commissioner.^[1]  Petitioner seeks respondent’s removal from office.

Respondent contends that, while she did not attend the racial bias training, she attended and conducted other trainings that provide sufficient instruction in racial bias.  Respondent also argues that some of petitioner’s claims are time-barred.

First, I must address two procedural issues.  An appeal to the Commissioner must be commenced within 30 days from the decision or act complained of, unless any delay is excused by the Commissioner for good cause shown (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  The 30-day timeframe also applies to a removal application pursuant to Education Law § 306 (8 NYCRR 277.1; Application of Kelty, 48 Ed Dept Rep 476, Decision No. 15,921; Appeal of Budich, 48 id.383, Decision No. 15,892).  The Commissioner has held that a removal application is timely when commenced within 30 days of the petitioner’s good faith discovery of the challenged conduct, even if the actual conduct occurred more than 30 days prior (Application of Nett and Raby, 45 Ed Dept Rep 259, Decision No. 15,315; Application of Bean, 42 id. 171, Decision No. 14,810).  In her application, petitioner describes numerous actions by respondent that took place more than 30 days prior to the commencement of this appeal.  Petitioner has not offered good cause for her delay in raising such allegations.  Therefore, I have not considered petitioner’s untimely allegations.

Next, respondent requests permission to submit a late answer pursuant to section 275.13 of the Commissioner’s regulations.  Section 275.13 of the Commissioner’s regulations requires each respondent to answer the petition within 20 days from the time of service.  Extensions may be granted in the discretion of the Commissioner upon timely application therefor (8 NYCRR 276.3).  Similarly, a late answer may be considered in the discretion of the Commissioner if the respondent provides good reason for the delay (Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Ortiz, 47 id. 383, Decision No. 15,731).  In the absence of a sufficient excuse for a late answer, the factual allegations set forth in the petition will be deemed true (8 NYCRR 275.11; Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,275; Appeal of Hamblin, et al., 48 id. 421, Decision No. 15,902).  Respondent’s claim of inadvertent error is not good cause for the delay (Appeal of Democracy Prep Endurance Charter School, 59 Ed Dept Rep, Decision No. 17,735; Appeal of Murphy, 57 id., Decision No. 17,234).  Therefore, I decline to accept respondent’s answer and accompanying affidavits.  However, I have considered respondent’s memorandum of law, which was timely submitted.

To the extent it is premised upon a violation of the plan, petitioner’s application must be dismissed as premature.  The Commissioner will not render an advisory opinion on an issue before it becomes justiciable (Appeal of Frey, 57 Ed Dept Rep, Decision No. 17,308; Appeal of B.R. and M.R., 48 id. 291, Decision No. 15,861).  The Commissioner’s jurisdiction pursuant to Education Law § 310 is appellate in nature, and an action is not ripe for review by the Commissioner until it is final and results in an actual, concrete injury (Appeal of Kerley, 60 Ed Dept Rep, Decision No. 17,915; Appeal of M.P., 59 id., Decision No. 17,848; Appeal of Parris, 51 id., Decision No. 16,261; seegenerally Matter of Gordon v Rush, 100 NY2d 236, 242 [2003]).

Respondent wrote to me on February 1, 2022, indicating that she would attend a different racial bias program in lieu of the training selected by the board.  In a response dated February 11, 2022, I advised respondent, among other things, that [t]he Monitor must determine whether [respondent’s] proposal satisfies the board’s approved plan in the first instance. If the Monitor determines that a provision of the plan has been violated, she may submit a notice of violation to the Commissioner.  Thereafter, the District will be afforded an opportunity to respond before the Commissioner determines whether any remedial action is necessary.

I have not received a notice of violation from the Monitor concerning this issue.  Such notice is a necessary predicate to the issuance of a “decision” or “order,” the violation of which could give rise to removal under Education Law §306.^[2]  Thus, any claimed violation of the plan is premature.

Additionally, petitioner has not established that the February 11, 2022 response was a “decision” or “order” within the meaning of Education Law § 306.  In an appeal or removal application to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief (8 NYCRR 275.10; Appeal of P.C. and K.C., 57 Ed Dept Rep, Decision No. 17,337; Appeal of Aversa, 48 id. 523, Decision No. 15,936; Appeal of Hansen, 48 id.354, Decision No. 15,884).  The February 11, 2022 response did not obligate respondent to take any specific action; it merely “encourage[d] [respondent] to consider attending the board-sponsored training.”  As such, it cannot form the basis for removal (see Appeal of Moss, 60 Ed Dept Rep, Decision No. 17,952 [admonishment to board members not an order of the Commissioner]).

In light of this disposition, I need not address the parties’ remaining contentions.

---

[1] While petitioner also makes reference to “official misconduct,” this is the standard by which a board may seek to remove one of its own members (see Appeal of Rivers, 60 Ed Dept Rep, Decision No. 17,989). 

[2] Petitioner would also have to establish that petitioner’s actions were, as required by Education Law § 306, “committed with a wrongful purpose” (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240). 

* Application of WILLA POWELL for the removal of Beatriz LeBron as a member of the Board of Education of the City School District of the City of Rochester. Decision No. 18,194.

The Law Firm of Frank W. Miller, attorneys for Board of Education of the City School District of the City of Rochester, Frank W. Miller, Esq., of counsel.

Posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume62/d18194 

 

Reminders:

HOW TO USE NYPPL'S RESEARCH TOOL 

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New York State Comptroller Thomas P. DiNapoli announced the following audits issued on September 16, 2022

New York State Comptroller Thomas P. DiNapoli announced the audits listed below for New York State and New York City Departments and Agencies were issued during the week ending September 16, 2022.

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

Department of Corrections and Community Supervision: Oversight of Transportation Services and Expenses (2021-S-1)
The department has not established adequate controls to effectively monitor and ensure accountability over transportation expenses and performs limited to no central monitoring of payments made through the contractor responsible for serving vehicles. Further, the contractor data does not include sufficient detail needed for the department to adequately monitor vehicle repairs and maintenance costs. Also, the department does not monitor in-house maintenance expenses but, rather, relies on each facility or office for accurate reporting.

Department of Health - Medicaid Program: Claims Processing Activity (2021-S-7)
The audit identified over $36.1 million in improper Medicaid payments. By the end of the audit fieldwork, about $5.5 million of the improper payments had been recovered. Auditors also identified seven providers in the Medicaid program who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs. By the end of the audit fieldwork, the department removed the providers from the Medicaid program.

Department of Health - Medicaid Program: Improper Managed Care Payments for Misclassified Patient Discharges (2021-S-8)
The audit identified 2,808 managed care inpatient claims totaling $32.3 million for Medicaid recipients who were reported as discharged from a hospital, but then admitted to a different hospital within the same day or the following day (which often meets the definition of a transfer). These claims are at a high risk of overpayment if the first hospital inappropriately reported an actual transfer as a discharge. The audit selected a judgmental sample of 166 claims totaling $2,474,162 from six hospitals and reviewed the associated patients’ medical records. Auditors found that 47 claims were overpaid because they were actually for transfers and not discharges and another 13 claims incorrectly billed as inpatient when they were for outpatient services.

New York City Department of Housing Preservation and Development: Heat and Hot Water Complaints (Follow-Up) (2022-F-3)
HPD officials have made some progress in correcting the problems identified in the initial report. Of the initial report’s eight recommendations, three were implemented, two were partially implemented, and three were not implemented.

Department of Health: Management of Indoor Air Quality for Individuals With Asthma (2020-S-59)
While the department, through its contracts with Local Health Departments (LHDs), has identified poor indoor environmental conditions that impact residents with asthma, it needs to improve its oversight and monitoring of LHDs to ensure that individuals identified with asthma in targeted areas continue to receive appropriate assistance.

New York State Liquor Authority: Internal Controls Over Selected Financial Operations (Follow-Up) (2022-F-12)
SLA has made progress addressing the problems identified in the initial audit report and has implemented the two recommendations from that report.

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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.

Seeking a court order in the nature of a Writ of Prohibition

In two actions initiated by Raymond A. Tierney, District Attorney, Suffolk County, [Petitioner] pursuant to CPLR Article 78 in the nature of prohibition Petitioner sought an order prohibiting Chris Anne Kelley, a New York State Supreme Court Justice, Suffolk County [Respondent] from enforcing [1] an order dated July 23, 2021, issued in an action entitled People v Portillo, then pending before Justice Kelley [Indictment No. 179/20] and [2] a second order dated July 23, 2021, issued in an action entitled People v Prince, also then pending in Justice Kelley's court [Indictment No. 1064/19].

The writ of prohibition is one of number of the ancient “common law” writs and is 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 Appellate Division dismissed both Article 78 actions "on the merits," without costs or disbursements.

Citing Matter of Holtzman v Goldman, 71 NY2d 564 and other cases, the Appellate Division explained that "[b]ecause of its extraordinary nature, prohibition is available only where there is a clear legal right, and then only when a court -- in cases where judicial authority is challenged -- acts or threatens to act either without jurisdiction or in excess of its authorized powers".

Further, said the court, "Petitioner has failed to demonstrate a clear legal right to the relief sought."

* Other such ancients writs include the writ of mandamus, granted by a court to compel an official to perform "acts that officials are duty-bound to perform;" the writ of injunction - a judicial order preventing a public official from performing an act; 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” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

Click HEREto access the decision in People v Portillo posted on the Internet.

Click HEREto access the decision in People v Prince posted on the Internet.