Appeal to the Commissioner of Education challenging a Board of Education suspending school district employee held untimely

Claiming that she witnessed a district staff member abuse a minor child, Petitioner reported the alleged incident to her supervisor and several other district employees.  Noting that the parties’ versions of events vary, the Commissioner of Education said "it appears that an altercation ensued between [Petitioner] and the principal ... resulted in [Petitioner] being placed on paid leave."* 

Ultimately, the Board of Education [Board] suspended Petitioner's employment by the school district.

Petitioner challenged the Board's action and in her appeal asked the Commissioner to direct the Board "impose a fine, request a written apology, and/or impose discipline upon all district employees to whom the alleged abuse was reported." Additionally Plaintiff asks that the Board be directed to notify the family of the minor child of the alleged abuse.

The Board contended that Petitioner's appeal should be dismissed as [1] untimely and [2] for lack of jurisdiction over the district respondents named by Petitioner. 

On the merits, the Board contends, among other things, that Petitioner has failed to state a claim for which relief may be granted.

The Commissioner first addressed a preliminary matter: Petitioner’s reply to the Board's answer to contains new information and claims that were not raised in the petition.  The Commissioner said the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer and is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition.

Turning to procedural issues, the Commissioner said the Petitioner's appeal must be dismissed as untimely.  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. Further, the Commissioner noted that "[except] in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal."

In addition, Petitioner raised general assertions of alleged neglect on the part of her attorney in processing her appeal to the Commissioner. The Commissioner opined that this claim concerns an issue of professional responsibility that is outside the scope of an appeal to the Commissioner of Education.

* The district contended that Petitioner had put her hands on the principal and submitted photographic evidence in support of this allegation.

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

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A presumption of public access to judicial documents may be outweighed by the importance of maintaining confidentiality under the Federal Arbitration Act

A former employee [Plaintiff] of International Business Machines Corporation ([IBM] had signed a separation agreement requiring confidential arbitration of any claims arising from her termination.* Plaintiff arbitrated an age-discrimination claim against IBM and won. Plaintiff then filed a petition in federal district court under the Federal Arbitration Act [FAA] to confirm the award, attaching it to the petition under seal but simultaneously moving to unseal it.

Shortly after Plaintiff filed the petition, IBM paid the arbitration award in full. The federal district court granted Plaintiff’s petition to confirm the award and her motion to unseal the arbitration award.

IBM appealed the district court's unsealing of the award, contending that (1) the petition to confirm became moot once IBM paid the award, and (2) the district court erred in unsealing the confidential award.

The United States Court of Appeals, Second Circuit, agreeing  with IBM, explaining that Plaintiff's petition to confirm her purely monetary award became moot when IBM paid the award in full because there remained no “concrete” interest in enforcement of the award to maintain a case or controversy.

The Circuit Court also ruled that any presumption of public access to judicial documents was outweighed by the importance of confidentiality under the FAA and the impropriety of Plaintiff’s effort to evade the confidentiality provision in her arbitration agreement. In the words of the court, "In short, the presumption of access to judicial documents is outweighed here by the interest in confidentiality and because [Plaintiff's] apparent purpose in filing the materials publicly is to launder their confidentiality through litigation."

Concluding that the district court should not have granted Plaintiff’s motion to unseal the award," the Circuit Court of Appeals remanded the matter to the federal district court "with instructions to dismiss the petition as moot" and reversed the district court's ruling unsealing the award.

* Plaintiff had signed the separation agreement in exchange for "severance payments and other benefits. The Agreement included a class- and collective-action waiver requiring claims arising from her termination—including claims under the ADEA—to be resolved “by private, confidential, final and binding arbitration.”

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

 

Former town court clerk pleads guilty to Jobbery

As noted in previous NYPPL reports of misconduct involving a public employee stealing public funds, such breaches of the public trust are frequently referred to as "jobbery." Mirriam-Webster defines jobbery as "the improper use of public office or conduct of public business for private gain".

On August 17, 2023, State Comptroller Thomas P. DiNapoli, Wayne County District Attorney Michael Calarco and the New York State Police announced that the former court clerk for the Town of Marion, Eileen Steurrys, pleaded guilty to stealing over $50,000 from the town court.

“Ms. Steurrys went to great lengths to try and cover up her theft of public funds. She now faces the consequences of her actions because of my office’s investigation and our partnership with District Attorney Calarco and the State Police,” New York State Comptroller DiNapoli said. “My thanks to the District Attorney and the State Police for their continuing partnership in combating public corruption.”

Following the plea, Prosecutor John J. Ferlicca of the Wayne County DA’s Office said, “The auditors from the State Comptroller did an exceptional and thorough investigation, which made my job of obtaining a conviction that much easier.”

New York State Police Acting Superintendent Steven A. Nigrelli said, “This guilty plea today once again demonstrates the hard work of law enforcement partners focused on the same goal: holding those who break our laws, accountable. Ms. Steurrys manipulated a position she was entrusted in and used it to her own advantage. We will not tolerate such corruption from those who use their position to profit at the expense of the local community. I commend and thank the State Comptroller’s office and the Wayne County District Attorney’s office for their commitment to investigating and prosecuting those who prey on their community.”

Steurrys’ crimes were uncovered during DiNapoli’s audit of the Town of Marion Court Fund, which found that court fees collected were not always being deposited into the court’s account. A resulting investigation, in collaboration with Wayne County District Attorney Calarco and the State Police, determined that, from 2016 to 2021, Steurrys stole over $50,000 and altered court records and created phony receipts to conceal her crimes. She was arrested in March following the joint investigation.

Steurrys’ pleaded guilty to Grand Larceny in the Second Degree, Corrupting the Government in the Second Degree, Tampering with Records in the First Degree and Official Misconduct before Wayne County Court Judge Richard M. Healy. Her sentencing is scheduled for October 18, 2023

 

Georgia woman pleads guilty to stealing her deceased father's NY state pension checks

On August 16, 2023, New York State Comptroller Thomas P. DiNapoli, Albany County District Attorney David Soares and the New York State Police announced that Alayne Bertolino pleaded guilty to stealing more than $240,000 in New York state pension payments made to her deceased father.

“This case should serve as a warning to those who would try to defraud our state’s pension fund — you will be caught,” State Comptroller DiNapoli said. “My thanks to Albany County District Attorney David Soares and the New York State Police for their partnership with my office’s Division of Investigations. Working together we ensured the pension fund was protected, restitution was paid and justice was served.”

“The loss of a loved one is always a difficult emotional period, but it should never be used to profit from the hard work of taxpayers,” said Assistant District Attorney Erin Bates, who is handling the prosecution of this case. “We hope this resolution helps to restore trust in the justice system by sending a clear message: the law will hold anyone accountable for trying to exploit the system for financial gain. When applied properly, justice holds everyone accountable, regardless of their position.”

New York State Police Acting Superintendent Steven A. Nigrelli said, “I commend the diligent work of our State Police members, along with our partners at the State Comptroller’s Office and Albany District Attorney’s Office, for their hard work in putting an end to this fraudulent and dishonest act. Ms. Bertolino deplorably took advantage of her deceased father’s hard-earned pension to support her own selfish needs. Today’s guilty plea is proof that we will not tolerate the actions of those willing to defraud the New York state pension fund.”

The defendant’s father, Joseph Bertolino, was a detective with the Nassau County Police Department who retired in 1991. His pension checks were directly deposited into a joint account he held with his daughter, who lives in Georgia. When he passed away at age 69, on Jan. 24, 2014, his daughter sought to conceal his death from the state retirement system. Alayne Bertolino did not notify the retirement system of her father’s death and sent a change of address form in his name.

A total of 56 monthly deposits, totaling $246,272.32, were made into the jointly held bank account after Joseph Bertolino’s death. Alayne Bertolino used the money to assist in purchasing a $556,000 home and car.

Ms. Bertolino pleaded guilty to Grand Larceny in the Second Degree and was ordered to make restitution in the amount of $242,558.56 by Albany County Court Judge William T. Little.