U. S. Supreme Court declined to review 4th Circuit decision striking down charter school's dress code

On June 26, 2023, the United States Supreme Court declined to consider a North Carolina charter school's challenge of an appeals court's ruling striking down the charter school's dress code requiring its female students to wear skirts while attending school.

"The 4th U.S. District Court of Appeals threw out the dress code, ruling that North Carolina charter schools are "state actors" working on the government's behalf, so they can't impose rules that won't fly in traditional public schools. The ACLU and several parents of female students had sued Charger Day School, which emphasizes "traditional values" and gets 95% of its funding from the state, arguing that its dress code violated the Constitution's equal protection clause and federal anti-discrimination law, Title IX."

Source: Politico, NPR

The claimant for retirement benefits pursuant to the Retirement and Social Security Law bears the burden of proving entitlement to such claimed benefits

A correction officer [Plaintiff] for a county sheriff's department [Employer] filed an application for service retirement benefits under a special retirement plan set out in  §89-f of the Retirement and Social Security Law claiming creditable service for a period that included the period from December 10, 1990 to February 19, 2016. Based on information received from Plaintiff's Employer, the Retirement System deemed Plaintiff eligible for §89-f benefits and he began receiving retirement benefits based on such data.

A subsequent federal investigation resulted in Plaintiff's indictment and conviction of theft of funds and wire fraud stemming from Plaintiff's submission of time sheets and overtime slips indicating that he was working for Employer when he was "actually playing golf, frequenting a casino or engaging in political activities," all of which resulted in Plaintiff's defrauding Employer of approximately $200,000.

Employer advised the Office of the State Comptroller of Plaintiff's fraudulent time submissions. Ultimately the Retirement System concluded that Plaintiff had only 24.50 years of total creditable member service and discontinued his §89-f retirement allowance benefits. Plaintiff requested hearing and redetermination of the System's action.

A Hearing Officer found that the compilation of member service credit report prepared by Plaintiff's attorney failed to demonstrate that Plaintiff had achieved the 25 years of total creditable service required and, further, that neither standby hours nor overtime hours were proper for inclusion in calculating Plaintiff's total member service credit.

The Comptroller sustained the denial of Plaintiff's application for service retirement benefits whereupon Plaintiff initiated this CPLR Article 78 proceeding challenging the Comptroller's decision.

Addressing the merits of Plaintiff's appeal, the Appellate Division noted that "[t]he comptroller is charged with the responsibility of determining service credits for retirement purposes and [the] determination will be upheld if rational and supported by substantial evidence", citing Matter of Rispoli v DiNapoli, 180 AD3d 1127. Further, the court opined that "it is the [Plaintiff] who bears the burden of demonstrating entitlement to the additional retirement service credit claimed".

Rather than testifying or calling any witnesses from the Employer to attest to the fact that, even after deducting the fraudulent time entries previously reported Plaintiff still had accrued sufficient total creditable member service to retire under the provisions of Retirement and Social Security Law §89-f, Plaintiff, instead, "opted to rely upon a one-page summary of total creditable member service prepared by his attorney who, in turn, utilized a selection of [Plaintiff's] payroll records to express his opinion that Plaintiff had accrued the 25 years of total creditable member service required."

The Appellate Division, as had the Hearing Officer, observed "absent detailed testimony as to the manner in which such calculations were performed, counsel's unsubstantiated interpretation of the limited payroll records supplied was insufficient to demonstrate [Plaintiff's] entitlement to the claimed [member] service credit — regardless of the nature of the hours utilized (regular, standby or overtime)."

As Plaintiff failed to meet his burden of proof in this regard, the Appellate Division opined that "his application for retirement benefits was properly denied upon this ground."

Despite Plaintiff's arguments to the contrary, the court explained that Plaintiff ignored  the fact that he, not the Retirement System, bore the burden of proof at the administrative hearing. As Plaintiff's counsel's one-page interpretation of selected portions of Plaintiff's payroll data was insufficient to establish the total required creditable member service claimed by Plaintiff, the Appellate Division said that it "need not consider whether, as [Plaintiff] contends, his standby or overtime hours should have been included in [his] counsel's calculations" and dismissed Plaintiff's appeal.

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

Reasonable statements made in the course of defending a claim of unlawful discrimination do not violate the anti-retaliation provisions of Title VII

A former employee [Petitioner] filed a complaint with the New York State Division of Human Rights [SDHR] alleging his former employer, the Office of the Attorney General [OAG], had engaged in unlawful discriminatory practices when it did not promote him to certain positions because of his age and because of religious discrimination. DSHR dismissed Petitioner's complaints, finding no probable cause to believe OAG had engaged in any unlawful discriminatory practices with respect to Petitioner's employment. In the ensuing appeal, the dismissal was affirmed (Cagino v Levine, 199 AD3d 1103.

During the pendency of the lawsuit, Petitioner submitted a Freedom of Information Law request to OAG seeking records related to the use of identification cards by certain employees — two of whom were the named defendants — to gain access to State buildings. OAG's Records Access Officer denied the request, concluding that the records were exempt under Public Officers Law §87(2)(b) because disclosure would result in an unwarranted invasion of privacy. The Records Access Officer's decision was sustained in the administrative appeal that followed.

Petitioner then filed a CPLR Article 78 appeal challenged that administrative determination and certain statements made in OAG's opposition papers, which Petitioner contended defamed him, resulting in Petitioner filing a complaint with the federal Equal Employment Opportunity Commission, which was transferred to SDHR

SDHR dismissed Petitioner's retaliation complaint, finding no probable cause to substantiate such a claim insofar as the allegedly defamatory statements, made in court papers, did not form the basis for a viable retaliation claim. Supreme Court subsequently dismissed the Petitioner's Article 78 action, concluding, as relevant here, that SDHR's finding of no probable cause was supported by a rational basis and was neither arbitrary nor capricious. Petitioner appeals.

The Appellate Division affirmed the Supreme Court's decision, holding that "SDHR's determination that there was no probable cause to support the retaliation claim is not contrary to law, nor is it arbitrary or capricious." Citing Matter of Curtis v New York State Div. of Human Rights, 124 AD3d 1117, the court noted that upon investigating a complaint, SDHR may dismiss it without a hearing "if it concludes that no probable cause exists" and that "Courts give deference to SDHR due to its experience and expertise in evaluating allegations of discrimination, and will only disturb a determination of no probable cause if it is arbitrary [and] capricious or lacks a rational basis".

In this instance, the Appellate Division noted that the dispute focused on whether OAG's statements about Petitioner in court papers filed in the FOIL proceeding constituted an adverse employment action. The court's decision notes that Petitioner "characterizes as retaliatory certain statements made by OAG in defending the denial of his FOIL request, including statements in an affirmation by an Assistant Attorney General that Petitioner:

[1] Made "increasingly and repeated hateful and alarming allegations" against the individuals to whom the records pertained; and

[2] Referred to Petitioner as a "disgruntled former employee" who had a "vendetta against" the individuals who were the subject of the records.

Explaining that in the context of a case of unlawful retaliation courts have deemed an adverse employment action to one which might have dissuaded a reasonable worker from making or supporting a charge of discrimination but have declined to do so "where the action complained of was undertaken by the employer as an "[o]rdinary defensive measure[ ] ... for the very purpose of defeating the employee's claim".

Further, the Appellate Division opined that "[r]easonable defensive measures do not violate the anti-retaliation provision of Title VII, even though such steps are adverse to the charging employee and result in differential treatment", citing United States v New York City Tr. Auth., 97 F3d at 677.

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

 

State Comptroller DiNapoli releases municipal and school audits

New York State Comptroller Thomas P. DiNapoli announced the following municipal and school audits were issued on June 23, 2023.

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

Village of Odessa – Clerk-Treasurer’s Records and Reports (Schuyler County) The former clerk-treasurer did not make cash deposits in a timely manner or properly record her leave usage. In addition, she earned and used leave that she was not entitled to and paid herself an unauthorized payment for unused leave totaling $13,293 when she left employment. The former clerk-treasurer also erroneously reported an additional 392.54 days worked to the New York State and Local Retirement System. 

N.B. The release of this report was delayed by the Office of the State Comptroller and submitted to "outside law enforcement for review".

Broome-Delaware-Tioga Board of Cooperative Educational Services (BOCES) – Capital Planning BOCES officials did not properly plan or budget for capital expenditures. Between 2018-19 and 2020-21, officials budgeted $916,304 for building repairs. However, building repairs and improvements totaled over $3.4 million for the same period. Without adequate capital planning, BOCES officials are limited in their ability to set long-term priorities. As a result, BOCES officials did not transparently fund capital expenditures and instead utilized more than $2.5 million of the component and participating school districts’ surplus funds over the last three school years.

Afton Central School District – Fund Balance Management (Chenango County) The board and district officials did not effectively manage the district’s fund balance. As a result, they levied more taxes than needed to fund operations and were not transparent with taxpayers. The board annually overestimated appropriations from fiscal years 2019-20 through 2021-22 by an average of $1.1 million or 7%. In addition, surplus fund balance exceeded the 4% statutory limit in each of the last three fiscal years by approximately $2.9 million to $5.6 million. The board also unnecessarily appropriated fund balance that was not needed, which in effect is a reservation of fund balance that is not provided  by statute and circumvents the statutory limit on surplus fund balance. Lastly, the district incurred $63,561 in unnecessary interest and other associated costs for the issuance of bond anticipation notes to purchase school buses.

Henry Johnson Charter School – Resident Tuition Billings and Collections (Albany County) While School officials ensured resident district tuition billings were adequately supported for the sample of 30 students reviewed, they did not ensure related district tuition collections reviewed totaling $8 million were deposited in a timely manner. Officials and staff also did not monitor collections received to ensure they were deposited in a timely manner or deposit 29 district tuition collections totaling $4.9 million in a timely manner.  

East Williston Central School District – Management of Nonstudent Network User Accounts (Nassau County) District officials did not adequately manage and monitor nonstudent network user accounts to help prevent unauthorized use, access and loss. Auditors found 222 (32%) of the enabled nonstudent network user accounts were not needed or disabled. Most of these accounts should have been disabled in February 2021 when the district updated their network access requirements. However, district officials did not develop a system to communicate when a network account was no longer necessary and should be deactivated.

Chenango Valley Central School District – Network User Accounts and Information Technology (IT) Contingency Planning (Chenango County) District officials did not adequately manage network user accounts or develop and adopt an IT contingency plan. Auditors found that sixty-eight (12%) of the district’s nonstudent network user accounts were no longer needed. Unneeded network user accounts are additional entry points into a network and, if accessed by attackers, could be used to inappropriately access and view personal, private and sensitive information or disable the network.

Rochester Academy Charter School – Credit Cards (Monroe County) School officials did not ensure credit card charges were properly approved, adequately supported and for school purposes and did not perform an effective and timely review of credit card charges. As a result, school officials approved and paid certain credit card charges without knowing what was purchased or whether the charges were for appropriate school purposes. Auditors found 35% of the tested credit card charges worth $68,523 did not have a receipt or did not have an itemized receipt and 48% totaling $91,673 had no documented school purpose. Subsequently, officials obtained and provided some of the missing receipts; however, 9% of the charges were still missing receipts. Officials also did not establish adequate written credit card policies and procedures or ensure compliance with the established policy requirements.

Town of New Albion – Town Supervisor’s Financial Duties (Cattaraugus County) The supervisor did not perform his financial duties or obtain training on how to perform his duties and was unfamiliar with the duties of his office. The town clerk and the bookkeeper performed the supervisor’s financial duties without oversight. By allowing others to perform his duties without oversight, the supervisor has weakened internal controls. For example, from Jan. 1, 2022 through Sept. 30, 2022, the town clerk collected and deposited $937,815 on behalf of the supervisor and performed the supervisor’s payroll duties without oversight. In addition, the bookkeeper performed many of the supervisor’s other day-to-day financial duties, including recording cash receipts and disbursements into the accounting records, preparing the monthly bank reconciliations and generating all of the supervisor’s reports to the board.

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Administrative Law Judge recommends dismissal of correction officer foung guilty of using excessive force

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Astrid B. Gloade recommended that the appointing authority terminate the employment of a correction officer [Officer] she found had retaliated against an incarcerated person.

Judge Gloade found that the New York City Department of Correction met its burden of proof that Officer used excessive and unnecessary force when he threw urine on an incarcerated person and failed to submit an accurate and complete use of force report regarding his actions. The ALJ noted Officer conceded the Department's allegations and the only disputed fact was "whether liquid that the incarcerated person tossed out of the cell before [Officer's] actions made contact with [Officer]".

Noting Officer's testimony that since the incident, "he has grown mentally and learned from the experience" and the proven misconduct arises from a single incident for which Officer has expressed remorse, Judge Gloade held that Officer's "conduct was egregious and raises grave concerns about his fitness to perform his duties as a correction officer."

Although Officer's Counsel argued that a penalty of not more than a 60-day suspension without pay was "appropriate in light of all of the circumstances" considered during the hearing, the Administrative Law Judge opined Officer's "disciplinary record, which includes a prior, recent use of force and a domestic violence incident, offers little by way of mitigation."

Click HERE to access the ALJ's findings and recommendation posted on the Internet.

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A Reasonable Disciplinary Penalty Under the Circumstances.  The text of this NYPPL e-book focuses on court and administrative decisions addressing disciplinary penalties imposed on officers and employees in the public service in instances where the individual has been found guilty of misconduct and, or, incompetence. For additional information about this e-book, and access to a free excerpt, click HERE.