Links to selected items focusing on govenmental operations posted on the Internet during the week ending November 29, 2024

$2B+ in Data Center Projects Planned for Merrillville, Ind. Three projects in early stages could bring hundreds of high-paying jobs to the northwest Indiana town. Construction of 1,000 housing units at Liberty Estates is now underway, and could provide housing for employees. READ MORE

28 Life Experiences That Impact Lifetime Income We analyzed hundreds of research studies and surveyed thousands of Americans to understand economic mobility. SEE THE RESULTS

 4 Ways to Get Ready for AI in Transportation Based on meetings that involved public sector transportation leaders, this thought leadership paper covers the steps transportation agencies need to take in four areas: data, workforce, cybersecurity and collaboration. DOWNLOAD

 A Look at Transit’s Local Successes and Federal Challenges The recent fortunes of local initiatives reveal a shifting landscape in U.S. transportation policy — driven by political, economic and environmental factors. What lies ahead is, as yet, unclear. READ MORE

AI Search Makes a Quick, Promising Splash in Palm Beach The Florida city’s newest technology is an effort to bring search further in the 21st century via a Polimorphic tool. A city official talks about use cases and lessons learned — experiences that could guide other towns. READ MORE

Arizona’s AI Policy Is Evolving Along With the Technology The state first published its policy and procedure for generative artificial intelligence in March. Since then, officials made several updates to address the changing needs this type of technology creates. READ MORE

Cloud-Smart Strategies for IT Infrastructure Modernization This thought leadership shares the steps that agencies need to take to guide their modernization efforts and simply cloud adoption. It also draws data from a recent Center for Digital Government survey to inform its advice. DOWNLOAD

Colo. Towns Are First to Get Broadband With Federal Funds Kiowa and Elizabeth, Colo., are the state's first communities to get high-speed Internet as a result of its nearly $1 billion allocation of federal broadband funds. The goal is to connect 99 percent of households statewide by 2027. READ MORE 

Denver’s New CISO Prioritizes People to Bolster Security Denver appointed a new chief information security officer, Merlin Namuth, in October. He is building relationships as the foundation for a people-centered approach to cybersecurity in the city and county. READ MORE 

DeSantis Plan to Import Drugs From Canada Hasn’t Got Off the Ground Florida’s governor applauded FDA approval of the prescription drug import plan at the start of the year, saying it would cut prices. But there’s still no date for his program to begin. READ MORE 

Discover the NACo Tech Xchange Reference Library: Your Essential Resource Hub The National Association of Counties Tech Xchange Reference Library is an invaluable resource designed to help local governments enhance their technological capabilities. LEARN MORE 

Eliminating Weak Links: Securing Evolving IT Landscapes In today's fast-changing environment, modern solutions are needed to strengthen security, improve visibility and simplify administration across networks, clouds, applications, users and endpoints. DOWNLOAD 

Federal Task Force to Identify Implications of Evolving AI The multiagency group will facilitate the research and testing of advanced artificial intelligence models in vital areas of national security and public safety. Its membership is expected to expand. READ MORE 

Fights Over Cultural Issues in Schools Cost Billions That Could Be Spent Helping Kids Security, communications, legal work and heightened staff turnover related to conflict all come with price tags. The money could be better spent elsewhere. READ MORE 

Flint Gets $8.7M to Expand Fleet of Fuel-Cell Buses Gov. Gretchen Whitmer announced the investment and others tied to a clean hydrogen hub project in a news release on Wednesday. READ MORE 

Health Device Data Is Protected, but Also Used, Shared Information collected by wearable technology, from smartwatches to fitness trackers and smart rings, is safeguarded by laws in some states. But much of it falls outside the federal Health Insurance Portability and Accountability Act, and can be sold or provided to third parties. READ MORE 

How Can Cities Keep Nonprofit Groups Cyber Secure? A new study of San Francisco considers nonprofits’ unique cybersecurity challenges in that community as well as ways the local government could help. The research team hopes to study other cities soon. READ MORE 

How Can Citizens Services Deliver More With Less? Learn how to maximize efficiency and increase citizen satisfaction without increasing labor costs. Gain powerful insights from over 11M service transactions! Download Now 

How One Library Is Filling the Gaps in Homeless Services The Salt Lake City Public Library's in-house social workers and suite of other services help the unhoused find their way. READ MORE 

How to Implement AI in State and Local Government Artificial intelligence (AI) holds limitless potential for agencies when it comes to enhancing operations, managing data and improving constituent experiences, but many governments don't know where to start. This issue brief explains how agencies can start using AI, why the cloud is important, and what needs to be done around data governance. DOWNLOAD 

How to Strengthen Public-Private Collaboration to Increase Weather Resilience Weather threatens business and government equally, but meaningful collaboration is rare. We can fix that. DOWNLOAD PAPER 

How Your Data Strategy Leads to Better AI This paper highlights the necessity for a unified data strategy in state and local government to facilitate effective AI implementation. Fragmented data systems create barriers to AI by complicating data access, management, and security. DOWNLOAD 

Is Bluesky Worth It for State and Local Governments? The social media network has been the coolest kid in school since the election, with some big public agencies joining. But they must consider emergency management, tech and even fraud before befriending the rising star. READ MORE 

Is It Possible to Serve More Citizens Without Adding Staff? Learn how busy offices like the DMV can improve service and efficiency while managing limited resources in our latest white paper. Download Now 

Is Your Phone Spying On You? How to Check and What to Do Has your smartphone become a listening device? Are your apps gleaning information from your conversations? How can you check and what can you do to regain more privacy? Let’s explore. READ MORE 

L.A. County Leaders Seek to Revamp Expensive Approach to Homelessness The county has spent billions on homeless programs only to see problems worsen. A proposal from two county supervisors would create a new department to consolidate and oversee services. READ MORE 

Michigan Senate Limits Lawmaker Access to ChatGPT, AI Tools New policy from the Michigan Senate Information Services blocks senators, employees and interns from using Senate-issued devices to access some artificial intelligence tools. This includes ChatGPT. READ MORE

Mississippi Looks to Expand Digital Service Offerings CIO Craig Orgeron on plans to upgrade the state’s digital services with automation and AI, improve its cybersecurity posture and recruit new talent. READ MORE 

N.C. A&T State University to Offer Bachelor's Degree in AI North Carolina's first bachelor's degree in AI will allow students to enroll in one of two concentrations: Advanced AI Systems, through the College of Engineering, and Applied AI in the College of Science and Technology. READ MORE 

NASCIO Highlights Cyber Training Need for Locals, Underserved The work of state-level CISOs is expanding to help serve the cyber needs of small municipalities and vulnerable groups, a NASCIO report affirms. Whole-of-state cybersecurity and grants are helping drive the endeavor. READ MORE 

Nations Discuss AI, Ahead of New Presidential Administration Representatives from 10 nations that are part of the International Network of AI Safety Institutes discussed international cooperation and teamwork on AI, and the risk new U.S. leadership could move the nation to act alone. READ MORE 

Navigating the CJIS Security Policy Changes The FBI updated its Criminal Justice Information Services (CJIS) Security Policy in July 2024 to address the ever-changing cyber threat landscape. Agencies using criminal justice data must adhere to the baseline security standards in the update, Version 5.9.5, for safe operation. The new document addresses evolving concerns in areas such as incident response, cloud security and multifactor authentication. DOWNLOAD 

Ohio Bill Would Make State Among the Strictest on Voter Registration Ohio would be the fourth state to require proof of citizenship under a legislative proposal. The bill would also require monthly maintenance of voter rolls. READ MORE 

Pacific, Wis., Gets Broadband With Completion of Fiber Line The Columbia County town of nearly 3,000 got high-speed Internet last week with the completion of a broadband fiber-optic line. Residents and officials realized the impact a lack of high-speed Internet was having during the COVID-19 pandemic. READ MORE 

Pennsylvania Gov. Secures $153 Million in Transit Funding, Avoiding Fare Hike Democrat Josh Shapiro is redirecting federal highway funds to Philadelphia’s transit system. Officials with the nation’s sixth-largest system had just approved a 29 percent fare increase. READ MORE 

Philanthropy’s Underappreciated Role in Driving Vital Urban Solutions A collaboration between a foundation and private-sector partners to build a successful streetcar system in Detroit demonstrates the potential for community growth and prosperity. READ MORE 

Public-Sector EV Tech Training Targets Equity, Workforce Gaps A program in several northeastern states is attempting to bridge training gaps for EV technicians in disadvantaged communities. The endeavor, funded by the U.S. Department of Energy, focuses on the need for municipal fleet mechanics. READ MORE 

Sacramento Transit Readies Contactless Tap-to-Pay Rollout Sacramento Regional Transit is poised to deploy a new payment system in coming months, using technology familiar in the retail world. The agency will preserve older ways to pay, and offer discounts for veterans and seniors. READ MORE 

Since 2020 Major Weather Events Have Cost $623 Billion Local governments and the business communities they serve should be close allies in the fight against severe weather. LEARN HOW 

Spatial Infrastructure: How GIS Data Can Transform Government Operations Embracing spatial infrastructure can help state and local governments by enhancing GIS data integration with everyday technologies and systems. This paper explains spatial infrastructure and explores use cases where it can improve government operations. DOWNLOAD 

State and Local Officials Urge Congress to Fund Lead Pipe Removal New federal rules require localities to get rid of all their lead water pipes in the next 10 years. Officials say they need help – and money. READ MORE 

States With the Worst Pension Debt in the Nation Fitch Ratings issued a report comparing the pension debt in each state to personal income. Connecticut had the highest ratio, at 23 percent, while Tennessee was the best at 1 percent. READ MORE 

Tech Leaders Need to Fill More Than Cybersecurity Skill Gaps While cybersecurity remains a high priority for many CIOs, we spoke to technology leaders to understand what other skills are difficult to find when recruiting new talent. READ MORE 

Text Recognition Audit Verifies Ga. Voting Machine Counts The audit, the first of its kind, demonstrated a nearly identical match to the count done on election night, using tech to read the text on all 5.3 million Georgia ballots. Nearly all inconsistencies were caused by unclear marks on absentee ballots that required human review. READ MORE 

The Four Key Components of Successful Digital Transformation for Government This guide details four essential components for achieving successful digital transformation in Government: harnessing the power of SaaS and PaaS platforms, enabling data-driven decisions, improving access to comprehensive data, and fostering secure collaboration. DOWNLOAD 

The Future of School Choice in the States That Rejected It Voters in three states rejected ballot measures promoting school choice. But they didn’t reject the legislators who favor it. READ MORE 

The Nation’s Easternmost City Could Be a Renewable Energy Model The power often goes out in Eastport, Maine, due to storms. Now, the small city is developing solar and tidal power to fuel its own microgrid. READ MORE 

The transportation landscape is shifting, with new challenges on the horizon in 2025 Join Government Technology for a live webinar on December 10 at 11:00 AM PT / 2:00 PM ET to learn actionable solutions for the road ahead. From digital security to adaptable management tools, this webinar covers what you need to keep projects moving forward. 

Three Steps for Getting Started with AI Chatbots This thought leadership paper details three steps your agency can take to kickstart an AI chatbot program. Real-world government examples show how AI chatbots can transform service delivery for constituents and improve efficiency for public sector employees. DOWNLOAD

Trains, Buses and Sidewalks: Competing Priorities in Public Transit The recent fortunes of local initiatives reveal a shifting landscape in U.S. transportation policy — driven by political, economic and environmental factors. What lies ahead is, as yet, unclear. READ MORE 

Traverse City, Mich., Moves Ahead With IT Separation A company helping the Traverse City local government offices deal with a recent cyber attack will help the city split off its computer network from one it shares with Grand Traverse County. READ MORE 

Voices of Those Who Have Experienced Poverty We listened to thousands of Americans about their journeys navigating economic mobility. LEARN MORE 

Washington Brings State Court Systems Online After Outage The incident, which affected state courts for two weeks, is ending as the Administrative Office of the Courts restores systems on the network. A forensic analysis is ongoing but unauthorized activity has been eliminated. READ MORE

 

 

Paid Family Leave updates for 2025 issued by the New York State Workers Compensation Boar Chair Clarissa Rodriguez

NYS Workers' Compensation Board Chair Clarissa M. Rodriguez announced that starting January 1, 2025, New Yorkers taking Paid Family Leave may receive up to $14,127.84 in total benefits – an increase of over $300 from 2024. The annual maximum cost they will pay will increase by about $20.

NYS Paid Family Leave provides eligible employees with up to 12 weeks of job protected, paid time off to bond with a new child, care for a family member with a serious health condition, or to assist loved ones when a family member is deployed abroad on active military service.

“Strong Paid Family Leave benefits means New Yorkers don’t have to sacrifice financial security to be there for family in times of need,” said Workers' Compensation Board Chair Clarissa M. Rodriguez. “No one should have to choose between caring for a loved one and a paycheck.”

Employees taking Paid Family Leave receive 67% of their average weekly wage, up to a cap of 67% of the current New York State Average Weekly Wage (NYSAWW), which is $1,757.19 for 2025. This means the maximum weekly benefit will be $1,177.32, and the total possible benefit to an employee is $14,127.84.

Beginning January 1, 2025, employees will contribute 0.388% of their gross wages per pay period to pay for Paid Family Leave, with a maximum annual contribution of $354.53 (0.388% of the NYSAWW). Employees earning less than the NYSAWW will contribute less than the annual cap of $354.53, consistent with their actual wages.

Year	Maximum Total Benefit	Maximum Total Cost
2025	$14,127.84	$354.53
2024	$13,813.92	$333.25

 

Free resources for employers and HR professionals

To help employers understand the NYS Paid Family Leave updates and share information with their employees, the Board has created a number of employer resources, including a deduction notice template, language for employee handbooks, and fact sheets, which are available in the Employer Resources section of paidfamilyleave.ny.gov/2025.

Additionally, the Board will be hosting a webinar for employers and HR professionals to provide an overview of the benefit, review the 2025 updates, and answer any participant questions. The one-hour webinar is offered on three dates:

• Tuesday, December 10, 2024
  12:00 p.m. – 1:00 p.m.
  Register here
• Wednesday, December 18, 2024
  12:00 p.m. - 1:00 p.m.
  Register here
• Tuesday, January 14, 2025
  12:00 p.m. – 1:00 p.m.
  Register here

About NYS Paid Family Leave

NYS Paid Family Leave is insurance, fully paid for by employees, that provides job-protected, paid time off care for family in times of need. Most employees of private employers in New York State are covered for NYS Paid Family Leave, while public employers can voluntarily opt in to provide the benefit.

Since NYS Paid Family Leave was first implemented in 2018, benefits have been significantly enhanced to further improve the lives of working New Yorkers and their families, including higher benefits, more time off, and more eligible events and family members.

More information

Complete details on NYS Paid Family Leave are available at PaidFamilyLeave.ny.gov. There is also a special page with updates for 2025 that includes benefit and deduction calculators, answers to frequently asked questions, and other resources.

Help is also available via a toll-free Paid Family Leave Helpline at (844) 337-6303, Monday through Friday, 8:30 a.m. - 4:30 p.m.

Administrative Law Judge recommends the termination of an administrative director found guilty of knowingly approved a subordinate’s fraudulent timesheets

New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Jonathan Fogel recommended termination of employment for an administrative director [Respondent] who knowingly approved a subordinate’s fraudulent timesheets, made false timesheet entries on his behalf, and failed to verify the accuracy of his timesheets. 

The ALJ found that on numerous occasions from 2017 to 2022, Respondent submitted and approved a subordinate’s timesheets even though she knew that the subordinate was not at work. 

The ALJ did not credit Respondent’s explanation that her CityTime account may have been “compromised,” and rejected Respondent’s argument that she had approved the timesheets in good faith, finding that Respondent failed to address why she took affirmative steps to record and approve specific work hours for her subordinate, including overtime, when he was not working and was instead traveling out of state. 

Although Respondent has been employed by the agency since 2008, received favorable performance reviews in recent years, and has no disciplinary history, the ALJ concluded that termination is an appropriate penalty because Respondent's  repeated and deliberate dishonesty over several years demonstrated a lack of integrity. 

Click HERE to access Judge Fogel's findings and recommendation posted on the Internet.

New York State's Commissioner of Education dismissed a petitioner's application seeking to have a superintendent of schools removed from his position for alleged misconduct

In this appeal to the Commissioner of Education the Commissioner held that the Petitioner had not demonstrated that the Superintendent of the School District [Respondent] had "willfully violate the Education Law or neglected his duties as a school officer" and dismissed Petitioner's application.

Concluding that the record reflected that Respondent investigated the incident alleged by Petitioner and concluded that there was nothing to support a finding of child abuse, which finding the Commissioner's decision notes was "a determination with which Petitioner agrees", dismissed Petitioner's application seeking to have the Commissioner remove the Respondent from his position.

The Commissioner's decision is set out below: 

Decisions of the Commissioner of Education

Application of JOHN DOE for the removal of Dan Wilson as superintendent of the Catskill Central School District.

Decision No. 18,521

(November 12, 2024) 

Ferrara Fiorenza PC, attorneys for respondent, Cameron B. Daniels, Esq., of counsel 

ROSA., Commissioner.--Petitioner seeks the removal of Dan Wilson as superintendent (“respondent”) of the Catskill Central School District pursuant to Education Law § 306.  The application must be denied. 

Petitioner is the parent of a child who attends respondent’s high school (the “student”).  On or about February 15, 2024, the student participated in a rehearsal for the school musical “Cinderella.”

According to petitioner, a school district employee offered tape to the students in a joking manner, and the student proceeded to place a piece of tape on her own mouth.  By contrast, respondent indicates that he “received a report that a school staff member had placed tape over [the] student’s mouth.”  Upon receipt thereof, respondent informed law enforcement and initiated an internal investigation.  As part of its investigation, the district’s director of human resources interviewed several students, including petitioner’s child.  According to an affidavit submitted by the human resources director, petitioner’s child twice reported that the school employee had placed tape on her mouth.  

Following this investigation, respondent determined that the incident did not involve child abuse as defined by Article 23-B of the Education Law.  This application ensued. 

Petitioner argues that he and his spouse should have been contacted prior to the student’s interview and that respondent’s “concern in this situation was not for [his] child as an alleged victim, but rather to seek punishment for two staff members.”  Petitioner seeks respondent’s removal based on his alleged mishandling of the tape incident. 

Respondent contends that the application must be denied for, among other procedural deficiencies, failure to include the required notice.  Respondent also seeks certification that he acted in good faith in accordance with Education Law § 3811. 

The application must be denied for insufficient notice.  Section 277.1 (b) of the Commissioner’s regulations dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310.  The notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832).  Thus, a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Petitioner’s application lacks the required notice and, thus, must be denied (Appeal of Melton, 63 Ed Dept Rep, Decision No. 18,359; Appeal of M.B., 56 id., Decision No. 17,044).[1] 

Even if the application contained the required notice, it would be denied on the merits.  The 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 (Education Law § 306 [1]; see Application of Kolbmann, 48 Ed Dept Rep 370, Decision No. 15,888; Application of Schenk, 47 id. 375, Decision No. 15,729). 

Here, petitioner has not demonstrated that respondent willfully violated the Education Law or neglected his duties as a school officer.  The record reflects that respondent reasonably investigated an allegation that a staff member placed tape over a student’s mouth.  Moreover, respondent reasonably concluded that the incident did not constitute child abuse—a conclusion with which petitioner agrees.[2] 

Petitioner argues that he and his spouse should have been contacted prior to the student’s interview and that respondent’s “concern in this situation was not for [his] child as an alleged victim, but rather to seek punishment for two staff members.”* Petitioner seeks respondent’s removal based on his alleged mishandling of the tape incident.

[* N.B. See Decisions of the Commissioner of Education, Decision 18,522, set out below this decision.]

Finally, respondent requests a certificate of good faith pursuant to Education Law § 3811 (1).  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1).  The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  Since the application has been dismissed on procedural grounds without any findings on the merits, I hereby certify that respondent is entitled to the requested certification (e.g., Application of Karimi, 63 Ed Dept Rep, Decision No. 18,345; Appeal and Application of Petrocelli, 62 id., Decision No. 18,223).

In light of this determination, I need not address the parties’ remaining contentions. 

THE APPLICATION IS DENIED. 

---

[1] While petitioner correctly notes that an appeal “shall not be dismissed for failure to include the language” contained in 8 NYCRR 275.11 (a), that section is inapplicable to applications for removal, which are governed by Part 277 of the Commissioner’s regulations. 

[2] Specifically, petitioner indicates:  “I am not suggesting in any way that my daughter was actually harmed.” 

END OF FILE 

Decisions of the Commissioner of Education

Appeal of MARCUS McGREGOR from action of the Board of Education of the Catskill Central School District regarding a personnel matter and application for the removal of Dan Wilson as superintendent and Jeremy Engelin and Ryan Osswald, as members of the Board of Education of the Catskill Central School District.

Decision No. 18,522

(November 12, 2024)

Ferrara Fiorenza PC, attorneys for respondent, Cameron B. Daniels, Esq., of counsel

ROSA., Commissioner.--Petitioner appeals his termination by the Board of Education of the Catskill Central School District (“respondent”) and seeks the removal of Dan Wilson as superintendent, and Jeremy Engelin and Ryan Osswald, as members of the board (“individual respondents”) (collectively, “respondents”).[1]  The appeal must be dismissed, and the application must be denied.

This appeal stems from the same factual background as Appeal of John Doe, 64 Ed Dept Rep, Decision No. 18,521, issued herewith.  Petitioner was employed by respondent as an independent contractor to assist in a musical production.  On March 15, 2024, respondent terminated petitioner’s contract for allegedly disclosing confidential information. This appeal and application ensued.

Petitioner[2] argues that the district improperly handled an investigation and seeks the removal of the superintendent and two board members for their alleged misconduct in connection therewith.  Petitioner also seeks reinstatement to his contractor position, arguing that he did not receive training on how to ensure the confidentiality of student information.

Respondents argue that the appeal must be dismissed for lack of standing, as untimely, and for improper service.  On the merits, they assert that petitioner has not established any willful violation of law or neglect of duty that would warrant removal of the individual respondents.  Respondents further argue that they acted within their authority and followed appropriate procedures in investigating an incident involving alleged harm to a student.  Finally, respondents maintain that petitioner was permissibly terminated for violating its confidentiality policy.

First, I must address a procedural issue.  The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer (8 NYCRR 275.3, 275.14).  A reply is not meant to buttress allegations in the petition or belatedly add assertions that should have been raised in the petition (Appeal of Nappi, 57 Ed Dept Rep, Decision No. 17,300; Appeal of Caswell, 48 id. 472, Decision No. 15,920; Appeal of Hinson, 48 id. 437, Decision No. 15,908).  Therefore, while I have reviewed the reply, I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth in the answer.

Petitioner’s application for removal must be denied for lack of the required notice.  Section 277.1 (b) of the Commissioner’s regulations dictates the specific notice required for removal applications pursuant to Education Law § 306, which is distinct from the notice required under section 275.11 (a) for appeals pursuant to Education Law § 310.  The notice of petition secures jurisdiction over the intended respondent and alerts the respondent that he or she must appear in the removal proceeding and answer the allegations contained in the application (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of Hertel, 49 id. 267, Decision No. 16,021; Application of Barton, 48 id. 189, Decision No. 15,832).  Thus, a removal application that does not include the specific notice required by 8 NYCRR 277.1 (b) is fatally defective and must be denied (Application of Johnson, et al., 56 Ed Dept Rep, Decision No. 17,055; Appeal of White and Carmand, 56 id., Decision No. 16,994; Appeal of Kelly, 45 id. 38, Decision No. 15,253).  Petitioner’s application lacks the required notice and, thus, must be denied (Appeal of Melton, 63 Ed Dept Rep, Decision No. 18,359; Appeal of M.B., 56 id., Decision No. 17,044).

The remaining relief sought by petitioner, reinstatement to his contractual position, is 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 (8 NYCRR 275.16; Appeal of Saxena, 57 Ed Dept Rep, Decision No. 17,239; Appeal of Lippolt, 48 id. 457, Decision No. 15,914).  Petitioner did not commence the instant action until over 30 days past his termination and he offers no excuse for the delay.  Accordingly, the appeal must be dismissed as untimely (Appeal of Zwanka, 56 Ed Dept Rep, Decision No. 17,051; Appeal of M.B., 56 id., Decision No. 17,044).[3]

Finally, respondents request certification of good faith pursuant to Education Law § 3811 (1).  Such certification is solely for the purpose of authorizing a board of education to indemnify a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in section 3811 (1).  The Commissioner will issue such certification unless the record establishes that the requesting respondent acted in bad faith (Application of McCray, 57 Ed Dept Rep, Decision No. 17,240; Application of Valentin, 56 id., Decision No. 17,014; Application of Paladino, 53 id., Decision No. 16,594).  Since the appeal has been dismissed on procedural grounds without any findings on the merits, I hereby certify that the individual respondents are entitled to the requested certification (e.g., Application of Karimi, 63 Ed Dept Rep, Decision No. 18,345; Appeal and Application of Petrocelli, 62 id., Decision No. 18,223).

In light of this determination, I need not address petitioner’s remaining contentions.

THE APPEAL IS DISMISSED.

THE APPLICATION IS DENIED.

[1] Petitioner also seeks the removal of respondent’s human resources director.  However, a human resources director is not a school officer subject to removal pursuant to Education Law § 306.

[2] To the extent that petitioner seeks relief on behalf of others, he lacks standing to do so and has not met the criteria to bring a class appeal (8 NYCRR 275.2).

[3] Since, petitioner was employed on a contractual, non-instructional basis, any right to reinstatement would arise from the terms of his contract.  Petitioner has not submitted a copy of this contract or identified any relevant provisions therein (see Appeal of Brosseau, 39 Ed Dept Rep 132, Decision No. 14,193).

END OF FILE

 

Going forward with a scheduled disciplinary hearing in the absence of the charged party

A member of a school board [Petitioner] appealed the decision of the Board of Education [Board] to remove him from office.

The Petitioner had been personally served with a notice of disciplinary charges, a hearing officer to preside over the hearing had been designated, and the disciplinary hearing had been scheduled to be held on a date certain. A few days prior to the scheduled hearing date Petitioner emailed the Hearing Officer to request an adjournment of the hearing date.  The Hearing Officer responded later the same day, indicating that he was “not able to postpone the hearing unilaterally” and recommend Petitioner contact the Board's counsel.* 

There was no indication in the record that Petitioner took any such action. 

The hearing took place as scheduled, notwithstanding the absence of Petitioner. Subsequently the Board voted to remove Petitioner from his position "in a 4-3 vote". Petitioner filed an appeal challenging the Board's action with New York State's Commissioner of Education, Dr. Betty A. Rosa. 

Contending that the Board "denied him a full and fair opportunity to refute the charges against him", Petitiopner asked the Commissioner to direct his "restoration to the board".  The Board argued that Petitioner was afforded sufficient due process prior to his removal and suggested that Petitioner "abandoned his request for an adjournment because he did not pose such a request to counsel for [the Board]".

Commissioner Rosa noted that:

1. Pursuant to Education Law §1709 (18), the board of education of every union free school district has the power “[t]o remove any member of their board for official misconduct” after a hearing;

2. “A written copy of all charges made of such [alleged] misconduct shall be served upon [the board member] at least ten days before the time appointed for a hearing of the same”;

3. The board member is to be afforded “a full and fair opportunity to refute such charges before removal”; and

4. In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The Commissioner ruled that the Board "erred by proceeding with the hearing" in Petitioner’s absence as Petitioner wrote to the hearing officer six days prior to the hearing to request an adjournment.

Although the hearing officer opined that he could not postpone the hearing, and recommended that Petitioner contact counsel for the Board, "Neither the hearing officer nor counsel for [the Board] took any further action until the day of the hearing, at which time the hearing officer recounted the forgoing chronology and asked counsel for [the Board] “how [he] want[ed] to proceed.”  

On the designated hearing date the Board presented its case.

The Commission held that the hearing officer erred by failing to grant or deny Petitioner’s request for an adjournment and opined this resulted in substantial prejudice to Petitioner. 

In the words of the Commissioner, “The grant or denial of a motion for an adjournment for any purpose is a matter resting within the sound discretion of [a] trial court” — or, here, a hearing officer" citing Matter Steven B., 6 NY3d 888."

Referring to Appeal of Johnson, 57 Ed Dept Rep, Decision No. 17,263 and other Decisions of the Commissioner of Education, Dr. Rosa noted that a hearing officer possesses the inherent power to postpone a hearing. Accordingly, the Commissioner found the hearing officer's error resulted in substantial prejudice to Petitioner, who, by virtue of his absence, was unable to cross-examine witnesses, examine the Board’s documentary evidence, or introduce witnesses and evidence on his behalf.

The Board had also contended that Petitioner’s request for an adjournment constituted “gamesmanship,”  pointing out that Petitioner waited over two weeks after receipt of the charges to request an adjournment.  However, said the Commissioner, there is no required time frame for adjournment requests.  

In the words of Dr. Rosa, "while undue delay could constitute a valid basis to oppose or deny a request for an adjournment, it does not justify ignoring such a request".

The Commissioner concluded "[t]he entire record demonstrates that in [the Board's] haste to investigate, charge, and remove [Petitioner] from office ... [it] failed to balance its desire to quickly establish its case ... with its need to ensure due process was provided.”**

Ruling that she was "constrained to annul the Board's determination", Commissioner Rosa said her ruling was [1] "without prejudice to [the Board] seeking [Petitioner's] removal a second time based upon the conduct described in the charges and [2] directed that the Respondent "be reinstated to his position as a trustee of the Board ... effective immediately".

* There is no indication that Petitioner did so. 

** See 57 Ed Dept Rep, Decision No. 17,263.

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