A provision in an arbitration award cannot strip a federal district court of its subject matter jurisdiction

A United States District Court dismissed the petition submitted by a party in an arbitration [Plaintiff] seeking to confirm an arbitration award opining that it lacked of subject matter jurisdiction to consider the matter.

The district court had concluded that any confirmation action must be brought in the State courts of New Jersey or New York as the Arbitration Agreement Forum Selection Clause provided "The decree of the Arbitrators shall be enforceable in the courts in the State of New Jersey and/or New York." 

This, said the district court, required the Parties to submit themselves to the personal jurisdiction of the courts of the State of New Jersey and, or, New York for any action or proceeding to confirm or enforce a decree of the Arbitrators pursuant to NJSA 2A:24-1 et seq. and Article 75 of the New York Civil Practice Law and Rules."

Plaintiff appealed the District Court's ruling that the district court had been "deprived of subject matter jurisdiction" by a clause set out in the arbitration award.

The Circuit Court of Appeals, Second Circuit, agreed with Plaintiff, holding that:

1. The district court erred in dismissing Plaintiff's petition; and

2. Plaintiff adequately pleaded subject matter jurisdiction based on diversity of citizenship.

The Circuit Court explained "parties cannot contractually strip a district court of its subject matter jurisdiction." Accordingly, said the court, it was error for the district court to conclude that the forum selection clause in the arbitration award "did so."

Further, the Circuit Court said it interpreted the relevant forum selection clauses as permissive arrangements that merely allow "litigation in certain fora, rather than mandatory provisions that require litigation to occur only there."   

Accordingly, the forum selection clauses "did not bar proceedings from going forward in the United States District Court for the Southern District of New York" and vacated the district court's judgment of dismissal, remanding the matter to the district court for further proceedings.

Click HERE to access the Second Circuit Court of Appeals decision posted on the Internet.

 

Recent Education Law §310 appeal decisions issued by the Commissioner of Education

The Commissioner of Education recently issued of decisions concerning appeals by Plaintiffs alleging wrongdoing by certain school district officers and personnel that sought the removal of these officials from office.

Decision No. 18,286* of Decisions of the Commissioner Education concerned a Wantagh Union Free School District school board election and budget vote, together with an application for removal of a member of the school board while Decision No. 18,279** of Decisions of the Commissioner Education addressed issued raised concerning the Board of Education of the North Salem Central School District's implementation a board resolution and an application for the removal of certain school board trustees.

 

Decision No. 18,286

Commissioner of Education Rosa concluded "this appeal must be dismissed and the application for removal of the board member must be denied."

Wantagh UFSD held its annual budget vote and election. Plaintiff was one of five candidates on the ballot running for the school board and was not elected.  This appeal and application for removal ensued.

The school district sought dismissal of the petition for improper service, failure to join necessary parties, and as untimely.  Additionally, the school district contended that Plaintiff’s claims are declaratory in nature or otherwise outside the jurisdiction of an Education Law §310 appeal. 

Noting that in an appeal to the Commissioner, a Plaintiff has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief, the Commissioner opined that Plaintiff failed to meet her burden of proving that any of the alleged errors affected the outcome of the election, were so pervasive that they vitiated the electoral process, or that they demonstrated a clear and convincing picture of informality to the point of laxity in adherence to the Education Law.

Further, said the Commissioner, Plaintiff failed to offer evidence, such as affidavits or signed statements from district voters, to support her claim and citing Appeal of Holliday, 60 Ed Dept Rep, Decision No. 17,947; Appeal of Dodson, et al., 54 id., Decision No. 16,764), the Commissioner said "it is well settled that mere speculation as to the existence of irregularities or the effect of irregularities provides an insufficient basis on which to annul election results."

With respect to Plaintiff seeking to have the Commissioner removed a trustee, the Commissioner noted that a school officer or member of a board of education may be removed 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", citing Education Law §306 [1].***

 

Decision No. 18,279

Plaintiffs appealed the alleged the North Salem Central School District failed to hire a school resource officer (“SRO”) and sought the removal from office of the president of the board and other, unspecified board members for such failure. The Commissioner dismissed the appeal.

Noting an affidavit sworn to by the board's president indicating that “[b]etween June 16, 2022 and November 2022 … there were internal discussions as to where the money would come from to fund [the] second SRO,”  and 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].”**** This appeal was the result of that action. 

Plaintiffs asserted that school officials engaged in willful misconduct and neglect of duty by failing to expeditiously hire a second SRO and asks that the Commissioner:

[1] "order [the board] to “abide by the June 15” resolution"; and 

[2] "remove the board president, and any other board member whose removal [the Commissioner deems]  warranted, from office."

The Commissioner dismissed the appeal for the reason it had become "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."

Then considering a request submitted by the school board members, the Commissioner found that the named district board members "each ... acted in good with respect to the exercise of their powers and performance of their duties" within the meaning of Education Law §3811[1] which section, in pertinent part, makes certain costs,  expenses  and  damages  a  district  charge "Whenever the trustees or board of  education  of  any  school   district,  or  any  school  district  officers,  have  been  or shall be   instructed by a resolution adopted at a district meeting to  defend  any   action  brought  against  them,  or  to  bring  or  defend  an action or   proceeding touching any district property or claim of the  district,  or   involving  its  rights  or  interests, or to continue any such action or  defense, all their costs and reasonable expenses, as well as  all  costs   and  damages adjudged against them, shall be a district charge and shall   be levied by tax  upon  the  district."

* Click HERE to access Decisions of the Commissioner No.18,286 posted on the Internet.

** Click HERE to access Decisions of the Commissioner No. 18,279.

*** To be considered willful, the action of a board member or school officer must have been intentional and committed with a wrongful purpose.

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

 

The US immigration court backlog

On July 19, 2023, Law360 published the attached commentary entitled A Blueprint For Addressing The Immigration Court Backlog, by Donald Kerwin. This article addresses the US immigration court backlog, which it attributes to systemic problems in the broader US immigration system.

"It would be a mistake to blame the backlog on EOIR [the Executive Office for Immigration Review] or its 650 immigration judges," Kerwin writes. "Instead, the backlog results from ... gross disparities in funding between immigration enforcement and the adjudication of removal proceedings, the failure of Congress to enact meaningful legislative reform, backlogs in the legal immigration system and the limited authorities of immigration judges."

The commentary offers seven sets of interrelated policy recommendations based on the Center for Migration Studies of New York's (CMS's) comprehensive study, The US Immigration Courts, Dumping Ground for the Nation’s Systemic Immigration Failures: The Causes, Composition, and Politically Difficult Solutions to the Court Backlog, published in CMS's Journal on Migration and Human Security.

“Many of the broader problems in the US immigration system have seemed impervious to reform," the commentary concludes. "Yet a technical, good-government issue, such as reducing the backlog, may be the right vehicle to begin to remedy past failures. A nation with 45 million foreign-born residents needs an immigration court system that fairly and efficiently adjudicates cases.”

To access CMS's immigration court backlog report click HERE. 

Texas woman charged with stealing over $65,000 in NYS pension payments

On July 24, 2023, State Comptroller Thomas P. DiNapoli announced the indictment of a 53-year-old Texas woman for allegedly stealing more than $65,000 in New York state pension payments meant for a deceased acquaintance. Christy Gibson, of Smith County, Texas, was indicted by Texas prosecutors and charged with one count of theft after an investigation by DiNapoli’s office.*

“Christy Gibson went to great lengths to cover up the death of an acquaintance to line her own pockets,” DiNapoli said. “Thanks to the work of my investigators and law enforcement in Texas, she will be held accountable. We will continue to partner with law enforcement from across the country to protect the New York State Retirement System.”

William H. Walsh Jr. retired from the New York State Department of Corrections and Community Supervision in November 1986. He elected to receive a reduced monthly retirement benefit so his wife, Mary L. Walsh, would continue to receive payments if he died before her. William Walsh died in October 2005. Mary Walsh died in December 2012 and at the time of death the pension payments should have stopped. Instead, her death was never reported to the New York state retirement system.

In May 2013, the retirement system received information indicating that Walsh may have died, and pension payments were halted. In June of that year, the retirement system sought verification that Mary Walsh was still alive and subsequently received notarized verification, purportedly from Mary Walsh. As a result, the pension payments were reinstated.

A later investigation by the State Comptroller’s Office found that Mary Walsh was in fact deceased, and the verification was fraudulent.

In total, 70 pension payments were paid after date of death, amounting to $65,102.28.  

The pension payments went into a joint account in the name of Mary Walsh and Gibson that was opened in 2011. Gibson never informed the bank of Walsh’s death or removed Walsh’s name from the account. It appears that Gibson was an acquaintance of Mary Walsh through her sister-in-law and also worked at the nursing home where Walsh eventually lived.

DiNapoli’s investigators determined that Gibson used the joint account to pay for entertainment and food.  Gibson also made electronic transfers and cash withdrawals.

Gibson was indicted in the 114^th District Court of Smith County Texas on one count of theft. Gibson’s anticipated arraignment will be on August 7 before Judge Austin Reve Jackson.

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. Allegations of fraud involving taxpayer money may be reported 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.

* N.B. The charges filed in this case are merely accusations and the defendant is presumed innocent unless and until proven guilty in a court of law.

New York State Comptroller DiNapoli releases School District and Municipal audits

New York State Comptroller Thomas P. DiNapoli announced the following School District and Municipal audits were issued on July 21, 2023.

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

 

Patchogue-Medford Union Free School District – Health Insurance Buyouts (Suffolk County) Although the district’s health insurance buyout program is generally cost-effective, the district could achieve greater savings by modifying the terms of the program. For example: the district should review the eligibility requirements of the program for married couples and family members employed by the district. For the 2021 calendar year, auditors found the district could have saved $73,966 if it had more cost-effective buyout requirements.

 

Village of Solvay – Financial Management (Onondaga County) The board and officials did not develop a budget for the electric fund and adequately manage its financial condition. From 2016-17 through 2020-21, the electric fund’s total net assets declined by approximately $9 million, and cash declined from $4.1 million to $1 million. Officials also did not maintain up-to-date records or provide adequate financial reports to the board; take action to ensure electric fund revenues kept pace with expenses; ensure that annual payments from the electric fund to the general fund totaling approximately $1 million were justified and supported; monitor the general fund budget during 2021-22; or develop long-term written financial or capital plans. Auditors found 31 general fund appropriation accounts were over expended by nearly $1.2 million.

 

West Hempstead Union Free School District – Nonstudent Network User Account Controls (Nassau County) District officials did not establish adequate controls over nonstudent network user accounts to help prevent unauthorized use, access and loss. In addition to sensitive information technology control weaknesses that were communicated confidentially to officials, auditors found the board and district officials did not: develop and adopt policies and procedures addressing key network user access controls, such as user account management, password security and user account controls, or disable 60 of the district’s enabled nonstudent network accounts that were not needed. Twenty-two of these accounts have not been used in more than five years.

 

Town of German – Supervisor’s Records and Reports (Chenango County) The former supervisor did not maintain the town’s accounting records and reports in a complete, accurate and up-to-date manner. As a result, the board’s ability to monitor financial operations was compromised, resulting in diminished transparency of the town’s financial operations. The former supervisor: incorrectly recorded almost $1 million of highway fund revenues and $57,000 of fire protection fund revenues in the general fund for the 2020 through 2022 fiscal years; did not provide budget status reports, or a monthly accounting of all money received and disbursed, to the board; consistently filed the annual financial report and the tax cap form late with the Comptroller’s Office; did not annually provide accounting records to the board for audit.

 

Tioga County Court and Trust Auditors reviewed the treasurer’s processes, procedures and records for the receipt and management of court and trust funds. They found the treasurer established adequate procedures, maintained appropriate records and properly reported court and trust funds as prescribed by statute. Auditors also found that records maintained by the County Clerk and Surrogate’s Court were up to date and complete with no material discrepancies.

 

East Ramapo Central School District – Nonpublic School Transportation (Rockland County) An audit issued in November 2019 identified certain conditions and opportunities for district management to review and consider. A follow-up review found that although the district’s Corrective Action Plan that was filed with the Comptroller’s Office indicated the district took corrective action on or before June 30, 2019, for seven of the eight audit recommendations, officials did not actually take corrective actions. Of the eight audit recommendations, six recommendations were not implemented and the status of two recommendations could not be determined.

 

East Ramapo Central School District – Textbooks Loaned to Nonpublic School Students (Rockland County) An audit issued in August 2020 identified certain conditions and opportunities for district management to review and consider. A follow-up review found that although the district’s Corrective Action Plan that was filed with the Comptroller’s Office indicated the district took corrective action on or before July 2020, of the six audit recommendations, one recommendation was implemented, two recommendations were partially implemented, and three recommendations were not implemented.

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