Challenging the denial of Petitioner's request to use school facilities and seeking the removal of certain school personnel

The Petitioner in this appeal to the Commissioner of Education:

[1] challenged the Board of Education's denial of his request to use district facilities in order to "operate an afterschool program" for a second year: and 

[2] sought the removal of the superintendent.

With respect to Petitioner's application seeking the removal of the superintendent, the Commissioner said Petitioner's application to remove the Superintendent must be denied because Petitioner's application lacked "the notice required by section 277.1(b) of the Commissioner’s regulations".

Citing Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055, and other Decisions of the Commissioner of Education, the Commissioner explained "a removal application that does not include the specific notice required by 8 NYCRR 277.1(b) is fatally defective and must be denied."*

Turning to the merits of the Petitioner's appeal, the Commissioner indicated  Education Law §414 provides that "boards of education may permit the use of district grounds and other property when not in use for school business for certain specific purposes. Further, the Commissioner noted that the New York State Court of Appeals has held that local school boards "exercise ultimate authority for access to students, school buildings and school property generally"** and that a school board’s determination in this regard may only be reversed if it is determined to be arbitrary or capricious.

Referring to information in the record, the Commissioner found that the school board "possessed ample justification to decline [Petitioner’s] request to utilize its facilities", opining that permitting Petitioner to continue using school facilities "could foreseeably lead to safety or liability issues."

Accordingly, the Commissioner dismissed Petitioner's appeal and denied Petitioner's application.

* §277.1(b) sets out the specific notice required for removal applications pursuant to Education Law §306, which is distinct from the notice required under §275.11(a) for appeals pursuant to Education Law §310.

** See Matter of Lloyd v. Grella, 83 NY2d 537.

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

 

State and other entity audits released by New York State Comptroller Thomas P. DiNapoli

On December 13, 2023, New York State Comptroller Thomas P. DiNapoli announced audits of the following State and other entities were issued.

Click on the text highlighted in color to access both the summary and the complete audit report

 

Department of Motor Vehicles – Language Access Services (2022-S-38)
A statewide language access policy to assist Limited English Proficiency individuals and provide equal access to government programs and services requires State agencies that provide direct public services, including the Department of Motor Vehicles (DMV), to provide interpretation services and to translate vital documents into the most common non-English languages in the State based on census data. Auditors determined that due to gaps in the Executive Law, DMV does not have sufficient authority to enforce its language access policies at office locations operated by County Clerks, despite these offices accounting for over 75% of the total customer-facing DMV offices. In addition, auditors determined that DMV’s contracted interpretation vendor was not providing on-demand interpretation services for all languages and dialects needed, and calls for 20 different languages had an average hold time of over 30 minutes. Further, office locations operated by DMV cited issues with dialects and disconnected calls as well as a lack of interpreters.

 

Department of Health – Medicaid Claims Processing Activity October 1, 2022 Through March 31, 2023 (2022-S-36) During the six-month period ended March 31, 2023, eMedNY processed over 233 million claims, resulting in payments to providers of nearly $45 billion. OSC’s audit of Medicaid claims processing activity identified over $20.6 million in improper Medicaid payments for claims that were not processed in accordance with Medicaid requirements. The audit also identified three providers in the Medicaid program who were charged with or found guilty of crimes that violated laws or regulations governing certain health care programs. The Department of Health removed two of the providers from the Medicaid program; the remaining provider was under the Office of the Medicaid Inspector General’s review.

 

City University of New York – Course Offerings (Follow-Up) (2023-F-7)
Based on City University of New York (CUNY) data, many full-time students studying toward a bachelor’s degree do not graduate within four to six years of first-time enrollment. A prior audit, issued in September 2020, found that CUNY was not effectively matching course offerings to student demands, comprehensively tracking students’ use of financial aid, monitoring their graduation rates, or formally surveying students to consider their feedback when preparing course schedules. The follow-up found that, while CUNY deployed new applications to facilitate course scheduling and registration; offered more online, hybrid, weekend, and off-hour courses; and implemented a new communication system between students and department advisors; it did not formally survey students for their feedback. Of the initial report’s seven recommendations, two were implemented, three were partially implemented, and two were not implemented.

 

Office of Addiction Services and Supports – Oversight of Chemical Dependence Residential Services (Follow-Up) (2023-F-17)  The Office of Addiction Services and Supports (OASAS) oversees prevention, treatment, and recovery programs, including community residential programs, which provide supervised services to individuals transitioning into abstinent living, and supportive living programs intended for those who have completed treatment and are transitioning to independent living but do not require on-site staff on a 24-hour basis. A prior report, issued in December 2021, found OASAS did not adequately monitor the programs, did not meet the recertification review requirements, and did not always conduct appropriate follow-up of programs to verify that all deficiencies had been addressed. The follow-up found that OASAS made progress addressing the issues identified during the initial audit: of the three recommendations, two were implemented and one was no longer applicable.

 

Department of Environmental Conservation – Oversight of New York State Forest Tax Programs (Follow-Up) (2023-F-18) To encourage the long-term management of privately owned woodlands to sustainably produce forest crops and increase the likelihood of both healthy forests and a stable forest economy, New York enacted Real Property Tax Law 480a – a tax incentive program for qualifying private forest landowners. The Department of Environmental Conservation (DEC) has general oversight responsibility for the program. A prior report, issued in April 2022, found monitoring and enforcement weaknesses in DEC’s oversight of the program that undermined its ability to ensure program forest lands continue to be protected and that only eligible properties receive local tax exemptions. Additionally, for the 795 properties spanning 260,669 acres under the program, landowners had been benefiting from local tax reductions for over 45 years, but the properties were largely unmonitored by DEC or localities. The follow-up found that DEC made progress in addressing the issues identified during the initial audit, partially implementing both of the initial report’s recommendations.

 

Metropolitan Transportation Authority—Long Island Rail Road – Rolling Stock Programs Department – Selected Aspects of the M9 Rail Car Project Management (Follow-Up) (2023-F-10) In 2013, the Long Island Rail Road (LIRR) awarded a contract to procure new M9 rail cars to replace its M3 cars and expand its fleet in preparation for service into Grand Central Terminal, budgeting $355.9 million for an initial base order of 92 cars. A prior report, issued in March 2022, found that LIRR was over budget by $8.9 million and the contractor was behind schedule for the delivery of all 92 base cars by nearly three years—the first cars weren’t delivered until September 2019 and, as of July 2020, only 64 cars had been delivered. Furthermore, LIRR did not assess the contractor for the allowed liquidated damages, which totaled $5.5 million as of September 2020, and all 64 cars were delivered with defects and deficiencies, but LIRR conditionally accepted them (allowed as long as the deficiencies do not affect safety or function) and put them into service. The follow-up found that LIRR assessed $4.9 million of the liquidated damages by withholding payment but, to date, no repairs have been completed, and no date has been set to start the repairs. Of the initial 12 recommendations, three were implemented, three were partially implemented, and six were not implemented.

 

State Education Department (Preschool Special Education Audit Initiative) – Handicapped Children’s Association of Southern New York, Inc. – Compliance With the Reimbursable Cost Manual (2022-S-49) Handicapped Children’s Association of Southern New York, Inc. (HCA), a Johnson City-based not-for-profit organization, is approved by the State Education Department (SED) to provide preschool special education itinerant teacher services to children with disabilities who are between the ages of three and four years. For the fiscal year ended June 30, 2018, HCA reported approximately $1.9 million in reimbursable costs for the SED preschool cost-based program. Auditors identified $66,009 in reported costs that did not comply with requirements.

 

Department of Health – Improper Managed Care Payments for Misclassified Patient Discharges (2023-F-26) Many of the State’s Medicaid recipients receive their services through managed care, whereby the Department of Health (DOH) pays managed care organizations (MCOs) a monthly premium for each enrolled recipient and, in turn, MCOs pay for services their members require. When billing an MCO for an inpatient stay, the codes the hospital uses are important because payments may vary significantly depending on whether a patient is transferred or discharged. An initial report, issued in August 2022, identified from a judgmental sample of 166 claims totaling $2,474,162, that 47 claims were overpaid $323,531 because they were incorrectly coded as discharges when the patients were actually transferred to another facility. Further, 13 claims, totaling $101,447, were incorrectly billed as inpatient claims when outpatient services were actually provided. The follow-up found DOH made minimal progress in addressing the issues identified in the initial audit report, implementing none of the five recommendations.

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Appealing an administrative determination

In Matter of Saratoga Economic Development Corporation [Corporation] v State of New York Authorities Budget Office [NYABO], Corporation challenged NYABO's administrative determination requiring Corporation to comply with the Public Authorities Accountability Act of 2005.

In Matter of Smith v City of Norwich, 205 AD3d 140 the Appellate Division held that in the event an administrative determination is made where an evidentiary hearing is not required by law, court review is limited to whether the administrative determination had a rational basis and was not arbitrary and capricious.* 

Further, in Matter of Froehlich v New York State Dept. of Corr. & Community Supervision, 179 AD3d 1408, the court said "So long as [the administrative determination] has a rational basis, [courts] will sustain the [administrative] determination, even if it would have also been rational for the administrative agency to have reached a different result."

In contrast, observed the Appellate Division, in the event an agency is engaged in pure statutory interpretation, a court "need not pay deference to the agency's interpretation and may instead undertake that analysis anew." Where, however, "the interpretation of a statute or its application involves knowledge and understanding of underlying operational practices or entails an evaluation of factual data and inferences to be drawn therefrom", the Appellate Division, citing Matter of Peyton v New York City Bd. of Stds. & Appeals, 36 NY3d 271, noted courts "regularly defer to the governmental agency charged with the responsibility for administration of the statute".

The Appellate Division then opined the courts defer to an agency's statutory interpretation "where the general statutory language and legislative history indicate that the Legislature intended to adopt a broad policy approach to the subject matter of the statute, delegating to the administrative agency comprehensive, interpretive and subordinate policy-making authority, interstitially to 'fill in the blanks' consistently with the over-all policy of the statute, either by administrative rule making or case-by-case decisions."

Finding that NYABO rationally concluded that Corporation is a local authority in that there is a "close relationship between Corporation and local governments" and Corporation "is the type of entity that the Legislature intended to subject to the provisions of the [Public Authorities Reform Act, Laws of 2009, Chapter 506]", the Appellate Division ruled that NYABO's determination was rational and therefore entitled to deference, rejecting Corporation's reliance on Matter of Farms First v Saratoga Economic Dev. Corp., 222 AD2d 861.**

Reversing the judgment of Supreme Court "on the law" and without costs, the Appellate Division dismissed Corporation's petition, and "... declared that [Corporation] is a local authority subject to the Public Authorities Law".

* In a footnote the Appellate Division explained that where no administrative hearing is held, "the agency may submit an employee's or official's affidavit to explain the information that was before the agency and the rationale for its decision, and courts may consider such an affidavit even though it was not submitted during the administrative process," citing Matter of Hammonds v New York State Educ. Dept., 206 AD3d 1334.

** The Appellate Division noted that in support of the proposition that it is not a local authority, Corporation cited Matter of Farms First, contending it was an independent entity formed by private businessmen to further their own interests, has never been furnished offices at County expense, has never had a County employee serve on its board and receives some of its funding from private individuals and corporations.

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

 

Plaintiff's claims of unlawful discrimination on the basis of race, gender, and national origin evaluated by the 2nd Court of Appeals and held to be without merit

Plaintiff, proceeding pro se, sued the New York State Division of Human Rights [Division] alleging violations of Title VII of the Civil Rights Act of 1964 for discriminating against him on the basis of race, sex, and national origin; creating a hostile work environment; and retaliating against him when he complained about unfair treatment. In addition, Plaintiff also brought a variety of state-law claims against the Division, his supervisors, and certain coworkers.

The United Stated District Court granted summary judgment to Division on all of Plaintiff’s federal claims. The court then determined that the Eleventh Amendment barred his state-law claims brought against individual named Defendants in their both their official capacity and in their personal capacities, explaining "individual supervisors and coworkers (other than the Plaintiff’s actual employers) are not subject to liability under Title VII."

The U.S. Circuit Court of Appeals, Second Circuit, said Plaintiff’s claims of discrimination and retaliation under Title VII are evaluated "under the familiar McDonnell Douglas burden-shifting framework, citing Vega v Hempstead Union Free Sch. Dist., 801 F.3d 72, (discrimination) and Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (retaliation). The Circuit Court said that under this framework, "a plaintiff must demonstrate a prima facie case of discrimination or retaliation, after which the employer must point to a legitimate, nondiscriminatory reason for the challenged conduct; if the employer does so, the burden shifts back to the plaintiff to prove that “discrimination was the real reason for the employment action.”

Agreeing with the district court that Plaintiff failed to make a prima facie showing of discrimination, i.e. as relevant here, “circumstances [that] give rise to an inference of discrimination.” As relevant here, “similarly situated” coworkers of a different race, sex, or national origin Plaintiff contended were subject to more favorable treatment, the court noted that such comparators must be similarly situated “in all material respects”—they must be “subject to the same performance evaluation and discipline standards” as Plaintiff and must have engaged in “comparable conduct.” The Circuit Court opined that while Plaintiff "identifies a handful of coworkers who, he claims, completed fewer than 108 cases a year while on probation, that similarity alone is insufficient, as there is no evidence by which a reasonable jury could find that those coworkers shared [Plaintiff] issues with work quality and insubordination. Lacking a similarly situated comparator, the court explained Plaintiff "cannot show circumstances that give rise to an inference of discrimination and so cannot prove his prima facie case.

As to Plaintiff's reliance "on comparisons to nonprobationary employees," the court said they are not subject to the same performance evaluation and discipline standards and thus are not similarly situated.

Further, agreeing with the district court, the Circuit Court said "even assuming [Plaintiff] proved his prima facie case, he failed to demonstrate that the nondiscriminatory reasons proffered by the Division for extending his probation and then terminating his employment were a pretext for unlawful discrimination.

Plaintiff contended that the Division’s assertions that he was fired due to poor work performance and insubordination were pretextual because those charges were false. In particular, Plaintiff pointed to perceived irregularities in his performance evaluations, which he argues contained false information and unexpectedly turned overly critical at the time his supervisors extended his probation and terminated him. 

Significantly, the Circuit Court said that "Even if [Plaintiff] could refute the charges of inadequate performance, that would not demonstrate that his supervisors did not believe what they asserted, let alone that the actual reason for extending his probation or terminating his employment was animus based on a protected characteristic."

Accordingly, the court concluded that Plaintiff was "unable to demonstrate pretext for discrimination."

Addressing Plaintiff's retaliation claim, the Circuit Court concluded "[on] this record, no reasonable jury could find that Plaintiff engaged in protected activity." Although Plaintiff "complained to his supervisors about unfair treatment generally, there is no indication that those complaints were premised on or related to discrimination based on his protected status."

The Circuit Court then indicated that summary judgment was also warranted on Plaintiff’s hostile work environment claim as he failed to establish the alleged harassment was “sufficiently continuous and concerted” to create an objectively hostile work environment “so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions” of [Plaintiff's] employment were altered.

Considering Plaintiff's "State-Law Claims", the court held that Plaintiff had abandoned any challenge to the dismissal of his official-capacity claims by failing to raise the issue in his brief. The Circuit Court noted that it has consistently held that, “[i]n general, where the federal claims are dismissed before trial, the state claims should be dismissed as well,” citing N.Y. Mercantile Exch., Inc. v. Intercontinental Exch., Inc., 497 F.3d 109.

After considering Plaintiff's remaining arguments, the Circuit Court said it found them "to be without merit" and affirmed the judgment of the district court.

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

 

Conducting an administrative hearing remotely via WebEx teleconferencing during the COVID pandemic

In this CPLR Article 78 action plaintiff [Petitioner] sought a judicial annulment of a decision by the New York State Department of Motor Vehicles Administrative Appeals Board affirming an adverse determination of an Administrative Law Judge.

The Appellate Division explained that "In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence* to support the determination", citing Matter of Khan v New York State Dept. of Motor Vehs., 215 AD3d 844, and Matter of Lau v NYC DOB, 209 AD3d 858.

Addressing Petitioner's challenge to the administrative hearing having been conducted remotely via a WebEx teleconference during the recent COVID pandemic, the Appellate Division opined that, contrary to the Petitioner's contention:

1. "The Administrative Law Judge did not abuse her discretion by denying Petitioner's untimely request for an adjournment made during the course of the scheduled hearing; and

2. "There is no merit to Petitioner's contention that any purported procedural errors made by the ALJ in conducting the hearing, 'including holding the hearing which took place during the COVID pandemic via WebEx teleconference,' violated certain of his rights, nor has he demonstrated any prejudice that resulted therefrom, that 'so permeate[d] the underlying hearing ... to render it unfair'".

* The Appellate Division note substantial evidence is such relevant proof as "a reasonable mind may accept as adequate to support a conclusion or ultimate fact" and substantial evidence is a minimal standard that requires "less than a preponderance of the evidence" and "demands only that a given inference is reasonable and plausible, not necessarily the most probable".

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