The New York State Commissioner of Education denied the application of an employee seeking to reopen his earlier appeal to the Commissioner

New York State Commissioner of Education Betty A. Rosa, noting that the Petitioner's instant appeal sought to reopen for consideration the Commission's decision in Appeal of J.C. [4 Ed Dept Rep, Decision No. 18,446], which decision dismissed Petitioner's earlier appeal concerning a determination by Petitioner's employer denying Petitioner's request for a security clearance, ruled that the Petitioner's application in the instant appeal must be rejected. 

Dr. Rosa's decision in the instant appeal is set out below.

Decisions of the Commissioner of Education 

Decision No. 18,512

Section 276.8 of the Commissioner’s regulations governs reopening a prior decision of the Commissioner and provides that applications to reopen are addressed solely to the discretion of the Commissioner.  The Commissioner will not grant an application to reopen absent a showing that: (1) the original decision was rendered under a misapprehension as to the facts or (2) there is new and material evidence that was not available at the time the original decision was made (8 NYCRR 276.8 [a]).  An application to reopen may not augment previously undeveloped factual assertions and arguments, advance new legal arguments, or merely reargue issues presented in the prior appeal (Application to reopen the Appeal of a Student with a Disability, 57 Ed Dept Rep, Decision No. 17,314; Application to reopen the Appeal of Lanzilotta, 48 id. 450, Decision No. 15,911).

Petitioner poses two principal arguments as to why the original decision was rendered under a misapprehension as to the facts.^[1]  

First, he argues that “his unwillingness to cooperate with OPI or SCI” was justified because respondent inquired into a criminal case against him that was allegedly dismissed. 

The factual finding of which petitioner complains was based upon SCI’s “numerous, unsuccessful attempts” and OPI’s “four unsuccessful attempts” to contact petitioner.  Respondent described SCI’s efforts as follows:

SCI investigators attempted to contact Petitioner by leaving a message on his cell phone, by a certified letter, and by visiting the address given as [petitioner’s] residence. The address listed turned out to be a post office box, and Petitioner never responded to the cell phone message or the certified letter.

This non-responsiveness formed the basis of my finding.  Petitioner’s argument that “SCI never contacted” him or that respondent erred by not contacting him by email are without merit.^[2]

Second, petitioner argues that he permissibly waited to challenge his problem code until he understood why it had been assigned.  “It is actual knowledge of the facts underlying a claim that begins the 30-day period in which to bring an appeal to the Commissioner” (Application of T.L., 64 Ed Dept Rep, Decision No. 18,474; see also Appeal of J.B., 62 Ed Dept Rep, Decision No. 18,245).  A problem code issued by respondent “triggers further review of [a] past employee’s application for re-employment” (Pepin v New York City Dept. of Educ., 45 Misc 3d 1221[A] at *3 [Sup Ct, NY County, 2014]).  Thus, the assignment of a problem code is a “discrete act” that creates a real, concrete injury (Appeal of J.C., 64 Ed Dept Rep, Decision No. 18,446).  Petitioner’s actual knowledge thereof began the 30-day timeframe for him to commence an appeal to the Commissioner (id.).  This time limitation is not tolled until petitioners obtain a satisfactory explanation for the actions about which they complain (Application to reopen the Appeal of Martinez, 59 Ed Dept Rep, Decision No. 17,831).  Thus, petitioner has not established grounds to reopen the prior decision in accordance with the standard set forth in 8 NYCRR 276.8 (link is external).

THE APPLICATION IS DENIED. 

[1] Petitioner does not contend that there is new, relevant evidence that was unavailable at the time of his original appeal. 

[2] As such, it is unnecessary to address petitioner’s argument that respondent impermissibly inquired into a prior arrest.

Procedure to determine Disability Retirement Applications pursuant to Articles 14 and 15 of the Retirement and Social Security Law

Source: New York State Register, Vol. XLVI Division of Administrative Rules Issue 45, November 6, 2024; posted on the Internet by the New York State Department of State; I.D. No. AAC-34-24-00002-A Filing No. 918 Filing Date: 2024-10-22 Effective Date: 2024-11-06

Action taken: Amendment of sections 353.1 and 353.2 of Title 2 NYCRR. [Statutory authority: Retirement and Social Security Law, sections 11(a), 519(1) and 614(a)].

Subject: Procedure to determine disability retirement applications under Articles 14 and 15 of the Retirement and Social Security Law.

Purpose: To broaden committee-eligible titles and account for changes to the Retirement and Social Security Law. 

Text or summary was published in the August 21, 2024 issue of the Register, I.D. No. AAC-34-24-00002-P. 

Final rule as compared with last published rule: No changes.

The text of rule and any required statements and analyses may be obtained from: Marcella Buell, Office of the State Comptroller, 110 State Street, Albany, NY 12236, (518) 43-4138. Email: mbuell@osc.ny.gov

Initial Review of Rule: As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2027, which is no later than the 3rd year after the year in which this rule is being adopted.

Assessment of Public Comment: The agency received no public comment. 

New York State Comptroller released Local Government and School District audits

On November 4, 2024, New York State Comptroller Thomas P. DiNapoli issued the following local government and school audits.

Click on the text highlighted in color to access the item posted on the Internet

Alden Central School District – Fuel Management (Erie, Genesee and Wyoming Counties) District officials did not properly manage fuel operations. Specifically, the superintendent and business administrator did not establish clear written guidance or provide adequate oversight of fuel management including verifying the quantity of fuel purchased, controlling fuel access, monitoring fuel usage  and performing inventory reconciliations. As a result, the transportation supervisor did not update fuel prices in the system and the bills were calculated based on the outdated prices resulting in billing errors totaling $9,176. Officials also did not maintain physical tank readings or perform periodic inventory reconciliations and were not aware of fuel inventory valued at $3,500. Therefore, they could not identify, investigate and correct the possible causes. Auditors found officials did not verify the accuracy of vendor charges leading to fuel overcharges totaling $1,498 and officials did not know who had access to the district’s fuel tanks.

 

Avon Central School District – Financial Management (Monroe County) The board and district officials did not effectively manage fund balance and reserves. The board-approved budgets overestimated appropriations by an average of approximately $1.7 million per year which made it appear the district needed to appropriate $300,000 of fund balance each year and increase real property taxes to close budget gaps. However, the district incurred operating surpluses in all five years auditors reviewed. Appropriating fund balance that is not needed circumvents the statutory limit. Auditors found six reserves totaling over $5 million had high balances that were not needed or used. The district also lacked written multiyear financial and capital plans. This inhibited effective financial management and justification for the levels of accumulated fund balance and reserves. 

Lyme Central School District – Financial Management (Jefferson County) The board and district officials did not properly manage the district’s fund balance. As a result, they levied more taxes than needed to fund operations and were not transparent with taxpayers. Auditors found the board and district officials: overestimated budgetary appropriations by an annual average of $918,000 (12%) from 2020-21 through 2022-23; appropriated fund balance to close projected budget gaps totaling $1.6 million for the 2020-21 through 2022-23 fiscal years though the district only needed to use approximately $23,000 of appropriated fund balance to cover operating costs during the period. It also reported fiscal year-end surplus fund balance during the same period ranging from 16% to 19% of the upcoming year’s budget, which was $1 million to $1.4 million over the 4% statutory limit. Additionally, the district did not have written multiyear financial and capital plans to provide a framework for developing the annual budgets and addressing future operating and capital needs. 

Wantagh Union Free School District – Financial Application User Access Controls (Nassau County) The board and district officials did not establish adequate controls over user accounts for the financial application to help prevent inappropriate access and use. Auditors found the board and district officials do not have reasonable assurance that they would be able to prevent or detect inappropriate changes to financial data, improper transactions or the misappropriation of funds in the financial application.

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New York City Correction Officer disciplined for spraying chemical agents at a person in custody

New York City New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge [ALJ] Michael D. Turilli recommended a 10-day suspension for a correction officer [Respondent] charged with excessive force for spraying chemical agents at a person in custody. 

Respondent had deployed chemical agents after the person in custody, who was secured in a recreation yard pen, began urinating in the direction of a captain and other officers. The person in custody then attempted to spit at Respondent, and Respondent sprayed the chemical agents at the person in custody two more times.

The ALJ determined Respondent’s three successive sprays of chemical agents were unreasonable because there were practical alternatives available, such as maintaining a safe distance and awaiting instructions from her captain.

Noting that the Department's Disciplinary Guidelines provide for a 10-day minimum suspension for the first substantive use of force violation, Judge Turilli found the Department’s request for a 20-day suspension to be excessive.

Given that Respondent had no prior record of use of force violations and there was no evidence of concealment or deception by Respondent or of injury to the person in custody, the ALJ found no reason to deviate from Disciplinary Guidelines and so recommended to the appointing authority, Commissioner Lynelle Maginley-Liddie.

Click HERE to access Judge Turilli's decision and recommendation posted on the Internet.

Second Circuit Court of Appeals holds a federal district court reviewing a claim for reimbursement under the IDEA must independently evaluate the equities, without deferring to the state administrative agency’s conclusion

Plaintiff appealed a judgment of the United States District Court for the Southern District of New York granting summary judgment in favor of Melissa Aviles-Ramos,* in her official capacity as Chancellor of the New York City Department of Education, and the New York City Department of Education [collectively DOE] on Plaintiff’s claim for reimbursement under the Individuals with Disabilities Education Act [IDEA]. Plaintiff sought reimbursement from the DOE for the cost of her disabled son’s private education during the 2019–2020 school year, alleging that DOE had failed to offer her son a free appropriate public education. 

An Impartial Hearing Officer [IHO], the State Review Officer [SRO], and the federal district court below each found that Plaintiff engaged in a course of conduct that frustrated the DOE’s attempts to develop a suitable education plan for her son. They also concluded that the balance of the equities disfavored reimbursement.

The Circuit Court noted that the factual record as to Plaintiff’s conduct is not in dispute nor is the finding that Plaintiff's conduct impeded the DOE. However, on appeal, said the court, Plaintiff argued that the district court deferred to the IHO’s and SRO’s views of the equities and thus erred. 

In doing so, opined the Circuit Court, Plaintiff raised a question that has split the district courts in this Circuit and that this Circuit Court has "not yet resolved".

The Circuit Court then ruled that a district court reviewing a claim for reimbursement under the IDEA "must independently evaluate the equities, without deferring to the state administrative agency’s conclusion". 

Applying that rule, the Circuit Court concluded that reversal is not warranted in this case because "the district court ultimately did balance the equities and did not abuse its discretion in doing so".

Accordingly, the Circuit Court of Appeals affirmed the federal district court's judgment.

* The Circuit Court noted Plaintiff's complaint was originally filed against Meisha Porter in her official capacity as Chancellor of the New York City Department of Education. Dr. Porter stepped down from her position in December 2021. Pursuant to Fed. R. App. P. 43(c)(2), the current Chancellor, Melissa Aviles-Ramos, was automatically substituted as a party.

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