Determining seniority in the course of abolishing a position

In this appeal the Petitioner appealed the action of the Board of Education in abolishing her position of library media specialist, joining several named individuals as "necessary parties." The Commissioner sustained Petitioner's appeal "to the extent indicated."

Petitioner claimed tenure in the district as a library media specialist.  On June 18, 2020, the school board adopted a resolution abolishing, among others, a library media specialist position, effective June 30, 2020.  The school district then identified Petitioner as the least senior person in the tenure area of library media specialist. 

Addressing the merits of the Petitioner's appeal, the Commissioner observed that at the time of a probationary appointment or appointment on tenure, a board of education must identify “the tenure area or areas in which [a] professional educator will devote a substantial portion of [her or] his time”, i.e. assigned to any tenure area to which she devotes a “substantial portion” of her time, defined as “40 percent or more of [her] total time spent … in the performance of [her or] his duties …” (see 8 NYCRR 30.1 [g]).

The Commissioner opined that "Given the limited and ambiguous information in the record, it is impossible to determine which employee’s services should have been discontinued." The Commissioner then admonish [the appointing authority] to comply with Part 30 of the Rules of the Board of Regents in appointing individuals to tenure-eligible positions. "It is unacceptable that [appointing authority] was unable to produce a single document establishing the tenure area(s) to which [Petitioner] and the named necessary parties were appointed] noting that the failure appointing authority "to identify this information, which is required by 8 NYCRR 30-1.3, now necessitates a recreation of its institutional thought process from several years ago—all while the employment of one or more people hangs in the balance" noted the Commissioner.

Click HERE to access the text of the Commissioner's decision.

Challenging actions taken by members of the staff of the State Education Department

Petitioner in this appeal challenged a determination of the New York State Education Department’s Office of Special Education (“SED”) that she engaged in misconduct and acted incompetently during a special education due process hearing.  The Commissioner dismissed the appeal for "lack of jurisdiction."

The Commissioner explained that "It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department", noting that  "Such actions can only be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules."

Click HERE to access the decision of the Commissioner.

Extending a probationary period

A probationary teacher [Probationer] taught Social Studies. Subsequently Probationer agreed to serve an additional one-year probationary period, ending February 1, 2022.

By letter dated October 8, 2021, the assistant principal requested a meeting “regarding improper usage of an instructional period.”  The letter informed petitioner that she could bring a union representative because the meeting could lead to disciplinary action. Ultimately the superintendent informed Probationer that her probationary appointment, would end at the close of business on January 31, 2022.

Pursuant to its authority under Education Law §2573(1)(a), the New York City Department of Education [DOE] "may discontinue the services of a probationary teacher 'at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith.'”

In an appeal to the Commissioner, the 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  and here the Commissioner determined that Probationer "has not proven that [DOE] discontinued her probation in bad faith."

Some technical issues to consider in filing an Education Law §310 appeal to the Commissioner of Education

1. Alleged violations of the Open Meetings Law may not be adjudicated in an appeal pursuant to Education Law §310 as the Commissioner of Education lacks jurisdiction to address the Open Meetings Law allegations raised in such an appeal.

2. Any deficiency in joining a necessary party may be cured during the pendency of the appeal by the joinder of the necessary party.

3. 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, and the record of the instant appeal "supports a finding that petitioner’s probationary appointment was discontinued in bad faith."

Click HERE to access the Commissioner's decision.

Commission on Ethics and Lobbying in Government - Adjudicatory Proceedings and Appeals Procedures for "Matters Under the Commission’s Jurisdiction"

Commission on Ethics and Lobbying in Government

I.D. No. ELG-45-22-00024-E
Filing No. 66; Filing Date: 2023-01-23; Effective Date: 2023-01-23

An Emergency Rule amending Part 941 of Title 19 NYCRR was published in the State Register on February 8, 2023 [Vol. XLV, Issue 6] based on a fin of the State Register.
Statutory authority: Executive Law, section 94(1)(a), (5)(a), (10) and (11)

Finding of necessity for emergency rule: Preservation of general welfare.

Specific reasons underlying the finding of necessity: The regulatory
amendments are necessary to conform to the Ethics Commission Reform
Act of 2022, L 2022, ch 56, § 1, Part QQ (“ECRA”) which established the
Commission on Ethics and Lobbying in Government (“Commission”) as
the agency responsible for administering, enforcing, and interpreting New
York State’s ethics and lobbying laws. The regulatory amendments are
necessary to facilitate the expeditious and efficient performance of the
Commission’s investigative and enforcement duties as set forth in Section
94 of the Executive Law, the Commission’s enabling statute.

The emergency rule is necessary for the general welfare to enforce eth-
ics laws that are critical matters of public interest. Therefore, upon Emer-
gency Adoption, these amendments will take effect immediately.
Subject: Adjudicatory proceedings and appeals procedures for matters
under the Commission’s jurisdiction.

Purpose: To conform Part 941 to the new Executive Law section 94
established by the Ethics Commission Reform Act of 2022.

Substance of emergency rule (Full text is posted at the following State
website: https://ethics.ny.gov/proposed-regulations-and-guidance): The
Emergency Re-Adoption amends 19 NYCRR Part 941 to conform the
regulations governing the investigative and enforcement adjudicatory pro-
cess to the new Section 94 of the Executive Law, as established by the
Ethics Commission Reform Act of 2022.

Key changes in the law, as set forth in these amendments, provide that a
Commission vote is no longer required to initiate an investigation. Instead,
Commission staff or the Commission can decide to elevate a preliminary
review into an investigation, and staff will present the matter to the Com-
mission for a vote after it has investigated a potential violation(s) of the
laws under the Commission’s jurisdiction. At that time, the Commission
may vote to proceed to hearing, return the matter to staff for further
investigation, close the matter or authorize resolution of the matter through
guidance.

The regulatory amendments further conform to and clarify statutory
changes relating to the various notices the Commission may send, which
include a Notice of Allegations, Notice of Hearing, and Notice of Closure,
Continued Investigation or Guidance, and the requirements of such
notices.

Furthermore, this rulemaking clarifies provisions relating to the conduct
of hearings and authority of hearing officers and the attorneys for the par-
ties to issue hearing subpoenas.

This notice is intended to serve only as a notice of emergency adoption.
This agency intends to adopt the provisions of this emergency rule as a
permanent rule, having previously submitted to the Department of State a
notice of proposed rule making, I.D. No. ELG-45-22-00024-EP, Issue of
November 9, 2022. The emergency rule will expire March 23, 2023.

Text of rule and any required statements and analyses may be obtained
from: Megan Mutolo, Commission on Ethics and Lobbying in Govern-
ment, 540 Broadway, Albany NY 12207, (518) 408-3976, email:
megan.mutolo@ethics.ny.gov

Regulatory Impact Statement

1. Statutory Authority: Executive Law § 94(1)(a) provides the Commis-
sion on Ethics and Lobbying in Government (“Commission”) with the
responsibility to administer, enforce and interpret New York State’s ethics
and lobbying laws, and Subsection 94(5)(a)(i) and (ii) authorize the Com-
mission to adopt, amend and rescind any rules and regulations pertaining
to the statutes within its jurisdiction and to adopt, amend and rescind any
procedures of the Commission, including procedures for investigations
and enforcement. Section 94(10) further authorizes the Commission to
adopt rules governing the conduct of adjudicatory proceedings and
appeals,. In addition, Part 941 sets forth rules for adjudicatory proceedings
and appeals relating to potential violations of the laws that fall within the
Commission’s jurisdiction, including investigatory matters conducted pur-
suant to and in accordance with Executive Law § 94(10) and (11).

2. Legislative Objectives: To set forth procedures regarding the conduct
of preliminary reviews and investigations in conjunction with adjudica-
tory proceedings and appeals for matters arising under the Commission’s
jurisdiction, as set forth in Section 94 of the Executive Law.

3. Needs and Benefits: This Emergency Re-Adoption amends 19
NYCRR Part 941 to conform to new Section 94 of the Executive Law,
established by the Ethics Commission Reform Act of 2022, relating to the
Commission’s investigative and enforcement process.

4. Costs:

a. Costs to regulated parties for implementation and compliance:
Minimal.

b. Costs to the agency, State and local governments for the implementa-
tion and continuation of the rule: No costs to such entities.

c. Cost information is based on the fact that there will be minimal costs
to regulated parties and state and local government for training staff on
changes to the requirements. The cost to the agency is based on the
estimated slight increase in staff resources to implement the regulations.

5. Local Government Mandates: 

The Emergency Re-Adoption and Proposed Rule does not impose new programs, services, duties or responsibilities upon any county, city, town, village, school district, fire district or other special district.

6. Paperwork: This regulation may require the preparation of additional
forms or paperwork. Such additional paperwork is expected to be minimal.

7. Duplication: This regulation does not duplicate any existing federal,
state or local regulations.

8. Alternatives: Section 94(10)(o) of the Executive law imposes an af-
firmative duty on the Commission to adopt rules governing the conduct of
adjudicatory proceedings and appeals. Therefore, there is no alternative to
amending the Commission’s existing regulation if the Commission
changes its procedures.

9. Federal Standards: This regulation does not exceed any minimum
standards of the federal government with regard to a similar subject area.

10. Compliance Schedule: Compliance with the emergency regulation
will take effect on the date it is filed with the Department of State. The
Proposed Rulemaking will take effect upon adoption.

 

Regulatory Flexibility Analysis

A Regulatory Flexibility Analysis for Small Businesses and Local Govern-
ments is not submitted with this Notice of Emergency Re-Adoption
because the rulemaking will not impose any adverse economic impact on
small businesses or local governments, nor will it require or impose any
reporting, record-keeping, or other affirmative acts on the part of these
entities for compliance purposes. The Commission on Ethics and Lobby-
ing in Government makes this finding based on the fact that the rule imple-
ments current law and, therefore, imposes no new requirements on such
entities.

Rural Area Flexibility Analysis

A Rural Area Flexibility Analysis is not submitted with this Notice of
Emergency Re-Adoption because the rulemaking will not impose any
adverse economic impact on rural areas, nor will it require or impose any
reporting, record-keeping, or other affirmative acts on the part of rural
areas. The Commission on Ethics and Lobbying in Government makes
this finding based on the fact that the rule implements current law and,
therefore, imposes no new requirements on such entities. Rural areas are
not affected.

Job Impact Statement

A Job Impact Statement is not submitted with this Notice of Emergency
Re-Adoption because the proposed rulemaking will have limited, if any,
impact on jobs or employment opportunities. This regulation implements
current law and, therefore, imposes no new requirements. This regulation
does not relate to job or employment opportunities.

Assessment of Public Comment

The agency received no public comment since publication of the last as-
sessment of public comment.