Recent decisions issued by the Commissioner of Education

Petitioners in this appeal to the Commissioner of Education alleged the Board of Education failed to hire a school resource officer [SRO] and seek the removal from the board its president and other, unspecified board members [Board]. The Commissioner dismissed the appeal and denied the application.

Petitioners asserted that the Board engaged in willful misconduct and neglect of duty by failing to expeditiously hire a second SRO and requested the Commissioner "remove the board president, and any other board member whose removal [the Commissioner] deems warranted, from office."

According to an affidavit submitted by the board president, “[b]etween June 16, 2022 and November 2022 … there were internal discussions as to where the money would come from to fund [a] second SRO.”  On November 16, 2022, the board rejected a resolution to “authorize the transfer of [funds] from [the] unassigned fund balance to the [SRO] budget code … to cover the cost of a second [SRO].” 

Following commencement of this appeal, the board announced that it had secured a grant to fund the second SRO position and thereafter approved a resolution “to allocate [funds] to cover the cost of the second [SRO] through [the end of the 2022-2023 school year].” 

The Board contended that the appeal should be dismissed for lack of standing, as moot, and for failure to join necessary parties. The Board also contended the appeal should be dismissed on the merits in that the Board acted in good faith with respect to the employment of a second SRO.

The Commissioner dismissed the appeal as moot, explaining that the Commissioner "will only decide matters in actual controversy and will not render a decision on a state of facts that no longer exists due to the passage of time or a change in circumstances."

Further, the Commissioner noted that a Commissioner of Education "may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner." The Commissioner then explained that to be considered willful, "the action of a board member or school officer must have been intentional and committed with a wrongful purpose."

The Commission opined that the record indicated that "the board did not immediately hire a second SRO in June 2022 due to the need to identify a funding stream for the position," and that the board president explained that “the [Board] determined that it would not be prudent to draw from [its] [u]nassigned [f]und [b]alance to pay for a contract that was not contemplated at the time the budget was prepared … the district’s budget is tight and does not allow for significant unbudgeted expenditures.”

Finding that Petitioners "have not proven that the board president engaged in any willful violation of the Education Law" the Commissioner held that "their application for his removal must therefore be denied."

Click HERE to access the decision of the Commissioner in this appeal posted on the Internet.

In addition, the Commissioner of Education recently issued four decisions addressing actions by Boards of Education involving residency and homelessness issues. 

Click on the text in color set out below to access these decisions posted on the Internet.

Decision No. 18,290

Decision No. 18,291

Decision No. 18,292

Decision No. 18,293

 

 

 

 

Right to privacy

New York Archives [Archives],* published quarterly by the Archives Partnership Trust, is an educational publication about New York State history as revealed by research in archival records maintained throughout the State of New York.

The Summer 2023 issue of  Archives includes an article concerning the decision in Roberson v Rochester Folding Box Company, 171 NY 538, [1902]. Roberson is said to be the genesis of New York States' initial privacy statute, "the earliest of its kind in the nation".

Click HERE to access a variety of postings on "YouTube" addressing the "Right to Privacy" via a link provided in this article published by Archives.

* https://www.nysarchivestrust.org/new-york-archives-magazine

Governments Jump on Threads

On July 10, 2023, GOVTECH TODAY reported that "Hundreds of Government Agencies Have Opened Threads Accounts within the first 24 hours of the social media platform’s launch." Many government agencies and officials are already active on the Twitter competitor Threads" noted GOVTECH TODAY and asked "Is it the future of social media?" Click to READ MORE .

GovTech Today also invites those interested to take "a deeper dive into cybersecurity in state and local government" with its weekly cyber newsletter. [Click to SUBSCRIBE].

 

 

Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday for employees of the State of New York as the employer for Contract Year 2023–2024

The New York State Department of Civil Service has published the following Attendance and Leave Bulletin:

Advisory Memorandum 2023-03

Designation of Floating Holidays in Lieu of Election Day and Lincoln's Birthday [Contract Year 2023–2024]

Text of Advisory Memorandum 2023-03 will be found at:
https://www.cs.ny.gov/attendance_leave/AdvMemo23-03.cfm

If you wish to print Advisory Memorandum 2023-03 the Department offers a version in PDF format at:
https://www.cs.ny.gov/attendance_leave/AM2023-03.pdf

To view previous Attendance and Leave bulletins issued by the Department of Civil Service, visit: https://www.cs.ny.gov/attendance_leave/index.cfm

Efforts to annul the determination of the New York State Division of Human Rights dismissing petitioner's complaint alleging unlawful discrimination rejected

The Appellate Division concluded that the evidence provided to the Administrative Law Judge [ALJ] was sufficient for the ALJ to determine that petitioner in this action did not suffer an adverse employment action as a result of discrimination. Further, said the court,  the additional evidence that petitioner sought to introduce was beyond the scope of the case.

Decided June 30, 2023 

SUPREME COURT OF THE STATE OF NEW YORK 

Appellate Division, Fourth Judicial Department 

PRESENT: WHALEN, P.J., SMITH, CURRAN, MONTOUR, AND OGDEN, JJ.

994 TP 22-01050

THE MATTER OF KELLY PHILLIPS, PETITIONER,

v

NEW YORK STATE DIVISION OF HUMAN RIGHTS AND CITY OF ROCHESTER, RESPONDENTS.

JEFFREY WICKS, PLLC, ROCHESTER (CHARLES D. STEINMAN OF COUNSEL), FOR PETITIONER.

LINDA S. KINGSLEY, CORPORATION COUNSEL, ROCHESTER (YVETTE CHANCELLOR GREEN OF COUNSEL), FOR RESPONDENT CITY OF ROCHESTER.

 

Proceeding pursuant to Executive Law § 298 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Monroe County [Sam L. Valleriani, J.], entered June 22, 2022) to review a determination of respondent New York State Division of Human Rights. The determination dismissed the complaint of petitioner.

It is hereby ORDERED that the determination is unanimously confirmed without costs and the petition is dismissed.

Memorandum: Petitioner commenced this proceeding pursuant to CPLR article 78 and Executive Law § 298 seeking to annul the determination of respondent New York State Division of Human Rights (SDHR) dismissing her complaint alleging unlawful discrimination. Our review of the determination, which adopted the findings of the Administrative Law Judge (ALJ) who conducted the public hearing, " 'is limited to consideration of whether substantial evidence supports the agency determination' " (Matter of Scheuneman v New York State Div. of Human Rights, 147 AD3d 1523, 1524 [4th Dept 2017], quoting Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 331 [2003]; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). " 'Courts may not weigh the evidence or reject [SDHR's] determination where the evidence is conflicting and room for choice exists. Thus, when a rational basis for the conclusion adopted by [SDHR] is found, the judicial function is exhausted' " (Matter of Russo v New York State Div. of Human Rights, 137 AD3d 1600, 1600 [4th Dept 2016], quoting Matter of State Div. of Human Rights [Granelle], 70 NY2d 100, 106 [1987]).

Contrary to petitioner's contention, there is substantial evidence to support the determination that she was not discriminated against based on her gender. To establish a prima facie case of employment discrimination, petitioner was required to demonstrate that she was a member of a protected class, that she was qualified for her position, that she suffered an adverse employment action, and that the adverse action "occurred under circumstances giving rise to an inference of discriminatory motive" (Forrest v Jewish Guild for the Blind, 3 NY3d 295, 306 [2004]; see Matter of Lyons v New York State Div. of Human Rights, 79 AD3d 1826, 1827 [4th Dept 2010], lv denied 17 NY3d 707 [2011]). We agree with SDHR that petitioner failed to establish that she suffered an adverse employment action arising out of the refusal of the Rochester Police Department (RPD) to issue a smaller service weapon (see Matter of Gordon v New York State Dept. of Corr. & Community Supervision, 138 AD3d 1477, 1478 [4th Dept 2016]; Lyons, 79 AD3d at 1827). Petitioner further failed to demonstrate that any allegedly adverse employment action " 'occurred under circumstances giving rise to an inference of discrimination' " (Gordon, 138 AD3d at 1478, quoting Forrest, 3 NY3d at 308).

Petitioner's contentions concerning other alleged adverse employment actions are not properly before us inasmuch as the adverse action alleged in the complaint filed with SDHR is limited to the RPD's failure to issue petitioner a smaller service weapon (see generally 9 NYCRR 465.3 [c] [3]) and there is no evidence that either petitioner or the SDHR amended the complaint to expand the scope of the case (see 9 NYCRR 465.4 [a], [c]; see generally Matter of Niagara Frontier Transp. Auth. v Nevins, 295 AD2d 887, 887 [4th Dept 2002]; Matter of Presbyterian Hosp. of City of N.Y. v State Div. of Human Rights, 241 AD2d 319, 320 [1st Dept 1997]).

Finally, we conclude that the ALJ did not abuse his discretion in denying petitioner's request to reopen the hearing. The evidence adduced provided the ALJ with a sufficient basis to determine that petitioner did not suffer an adverse employment action as a result of discrimination, and the additional evidence that petitioner sought to introduce was beyond the scope of the case (see 9 NYCRR 465.12 [f] [3], [13]; see generally Matter of Mario v New York State Div. of Human Rights, 200 AD3d 1591, 1592-1593 [4th Dept 2021], lv denied 38 NY3d 909 [2022]; Matter of McGuirk v New York State Div. of Human Rights, 139 AD3d 570, 571 [1st Dept 2016]).

Entered: June 30, 2023

Ann Dillon Flynn

Clerk of the Court