An educator’s preferred list eligibility rights depend on his or her tenure area

An educator’s preferred list eligibility rights depend on his or her tenure area

Decisions of the Commissioner of Education, Decision No. 16,801

A duly certified public school administrator [Administrator] employed by the Perry Central School District challenged the district school board’s [Board] decision not to appoint her to a secondary principal position following the abolishment of her position as middle school principal. 

The Board had voted to abolish the position of middle school principal for economic reasons effective June 30, 2014.  The secondary principal position was to become vacant July 1, 2014 when the incumbent of that position would move to a new position as superintendent of schools. A notice was posted regarding the open position of secondary principal and Administrator claimed that she had a right being appointed to the secondary principal position.  The Board told Administrator that she would not automatically be appointed to the position.* 

Administrator contended that she was entitled to the position of secondary principal “because the position is substantially similar to her abolished position of middle school principal” and in the same general tenure area of “principal.”  Administrator also alleged that she was being terminated without due process in violation of Education Law §§3012, 3020, and 3020-a.

In rebuttal, the Board argued that:

1. Administrator failed to meet her burden of proof in showing that the district has a general tenure area of principal;

2. Administrator did not show that she is the senior administrator in that tenure area such that she is entitled to the position of secondary principal; and

 

3. Administrator has failed to show that the district acted in bad faith by abolishing the position of middle school principal.

The Commissioner dismissed Administrator’s appeal claiming that she is entitled to the position of secondary principal because it is similar to her previously abolished middle school principal position and in the same general principal tenure area. The Commissioner explained that the Board has demonstrated, “on the record,” that it has established narrow tenure areas with regard to principals within the district, not one general principal tenure area as Administrator contended.

The Board admitted that “it has not been consistent in its appointment of elementary principals, with past appointment resolutions referencing the elementary principal tenure area.” However, said the Commissioner, it appears that Board “has otherwise consistently applied narrow administrative tenure areas and this [admission] appears to be an error with respect to one employee rather than a conscious decision to revert to a general principal tenure area for all principals.”

The Commissioner’s decision also noted that the Board’s resolution appointing Administrator “on probation” and the Board’s resolution appointing her “on tenure” very explicitly appointed her to the Middle School Principal tenure area.  Thus, concluded the Commissioner, the Board met its burden of proof to show that the Perry Central School District has narrow tenure areas for its principal positions.

Finding that the secondary principal position is not in the same tenure area as Administrator’s abolished position of middle school principal, the Commissioner ruled that Administrator is not entitled to appointment to the secondary principal position, presumably from a preferred eligible list established upon the abolishment of the middle school principal position. 

As to Administrator’s claim that she was terminated without due process, the Commissioner said that the school board explained that the abolition of Administrator’s position resulted from a reorganization of its schools to a pre-kindergarten through sixth grade and seventh grade through twelfth grade configurations that would result in cost savings to the district at a time of fiscal difficulties.  Thus, said the Commissioner, Administrator has not demonstrated that she was denied administrative due process when she was advised that her position was abolished and that she would be terminated as a result of that action, and this branch of her appeal must also be dismissed.

*At the time Administrator filed her appeal to the Commissioner, the position of secondary principal had not yet been filled.  

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16801

______________

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations and summarizing selected court and administrative decisions involving layoff issues. For more information click on http://nylayoff.blogspot.com/

______________

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 8, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 8, 2015

[Click on text highlighted in colorto access the full report]

Tax collector pleads guilty to faking her own tax payments
DePeyster Town Clerk Michelle Sheppard resigned her two public jobs and agreed to pay $4,303 in restitution for dodging her personal town and county tax payments over several years. http://www.osc.state.ny.us/press/releases/aug15/080715.htm?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080715release

Comptroller Thomas P. DiNapoli announced his office completed audits of the

Niskayuna Fire District 2

http://www.osc.state.ny.us/localgov/audits/firedists/2015/niskayuna2.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515arelease

Northville Public Library

http://www.osc.state.ny.us/localgov/audits/libraries/2015/northville.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515arelease

Town of North Norwich

http://www.osc.state.ny.us/localgov/audits/towns/2015/northnorwich.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515arelease

Town of Phelps

http://www.osc.state.ny.us/localgov/audits/towns/2015/phelps.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515arelease

Bethpage Union Free School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/bethpage.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515release

Commack Union Free School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/commack.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515release

and the

Plainview-Old Bethpage Central School District

http://www.osc.state.ny.us/localgov/audits/schools/2015/plainviewoldbethpage.pdf?utm_source=weeklynews20150809&utm_medium=email&utm_campaign=080515release

Public Authority agrees to pay legal expenses incurred as a result of its not responding to a Freedom of Information request

Public Authority agrees to pay legal expenses incurred as a result of its not responding to a Freedom of Information request

Source: Empire Center for Public Policy

The Metropolitan Transportation Authority [MTA] and the Empire Center for Public Policy [Center] have reached an out-of-court settlement in which the MTA acknowledged its failure to respond “in a timely manner” to a Freedom of Information Law (FOIL) request submitted to it by the Center.

MTA agreed to pay the legal costs and fees incurred by the Center in the course of settling the lawsuit brought by the Center to obtain MTA 2014 payroll records.* The Center said that it had initiated the legal action after more than four months of  “delays and missed deadlines” by MTA. 

The Center alleged that although some MTA units provided payroll records after lengthy delays, the MTA’s New York City Transit Authority failed to answer the  Center’s “appeal of denial,” the last avenue of recourse to exhaust its administrative remedy, before initiating the legal action.

The payroll data are posted and updated annually at http://seethroughny.net/, the Empire Center’s “transparency website.”

* Empire Center for Public Policy v Metropolitan Transportation Authority, New York City Transit Authority, Supreme Court, Kings County, Docket 6681/2015

Court dismissed discrimination complaint for failure to allege discriminatory intent and for failure to exhaust administrative remedies

Court dismissed discrimination complaint for failure to allege discriminatory intent and for failure to exhaust administrative remedies

Burgis v New York City Department of Sanitation, USCA, Second Circuit, Docket #14-14-1640 cv

In this class action lawsuit the plaintiffs alleged that they suffered unlawful discrimination on the basis of race and/or national origin in the New York City Department of Sanitation’s promotional practices, relying on statistics that they claim demonstrate disparities in the composition of various supervisory positions within the department.

The federal district court dismissed the Equal Protection and §1981 claims filed by the plaintiffs “for failure to allege discriminatory intent”, and dismissed their Title VII claim  alleging disparate impact “for failure to exhaust administrative remedies.”

The Court of Appeals, Second Circuit, sustained the district court’s ruling, explaining that although statistics alone may be sufficient in some circumstances to show discriminatory intent in an Equal Protection or §1981 class claim, “the statistics here alleged in the complaint were insufficient for this purpose” and, further, the plaintiffs failed to exhaust their administrative remedies prior to filing the Title VII disparate impact claim.

As to the statistics presented by the plaintiffs, the Circuit Court said the plaintiff’s bare allegations do not present circumstances that “give rise to an inference of unlawful discrimination.” Without any specificity as to the qualifications considered for each position and without any reference to specific statements or individual circumstances that suggest discriminatory treatment, plaintiffs’ allegations do not support a finding that the Department of Sanitation acted with a discriminatory purpose.

Addressing the plaintiffs’ Title VII claim, the court said that discriminatory intent need not be alleged in a case based on so-called “disparate impact." In this instance, however, the plaintiffs’ Title VII claim must be dismissed for failure to exhaust administrative remedies.

To bring a claim under Title VII, explained the court, a plaintiff must first have filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) or a state equivalent - here, the New York State Division of Human Rights - as Courts may only hear claims “reasonably related” to allegations set forth in the administrative complaint.

Accordingly, said the court, the judgment of the United States District Court is affirmed.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/abbf2748-836b-4838-813b-85ffacc115c6/9/doc/14-1640_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/abbf2748-836b-4838-813b-85ffacc115c6/9/hilite/

Disqualification of applicants for a license or employment because of his or her criminal conviction

Disqualification of applicants for a license or employment because of his or her criminal conviction

Source: Civil Service Attorney LawBlog, by Kevin Sheerin

In a lawsuit brought by the New York Community Service Society [DCAS] for petitioner, KM, Judge Moulton of the New York County Supreme Court held “that both the New York City Department of Citywide Administrative Services and the New York City Civil Service Commission failed to consider Correction Law Article 23-A, in disqualifying the petitioner.”

Article 23-A of the Correction Law, enacted in 1976, addresses the “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses,” and attempts to eliminate the effect of bias against ex-offenders by imposing an obligation on employers and public agencies to deal equitably with them by setting out a broad general rule that employers and public agencies cannot deny employment or license to an applicant solely based on the applicant status as an ex-offender.

Petitioner had applied for employment as a DCAS special officer  but was disqualified by Citywide Administrative Service. Petitioner then appealed Administrative Service’s decision to the New York City Civil Service Commission. The Commission sustained Petitioner’s disqualification. Supreme Court reversed the Commission’s decision.

In Arrocha v NYC Bd. of Education, 93 NY2d 361, a case involving the denial of a teaching license to an individual who had been convicted of a crime, the Court of Appeals said that the Correction Law protects individuals from unlawful discrimination based on his or her conviction of a crime and an applicant for a license or employment may not be automatically disqualified because of his or her previous conviction of a crime.  

Finding that the New York City Board of Education properly considered all eight factors set out in the Article 23-A of the New York State Correction Law when it refused to grant a teaching license to a person with a criminal record, the Court of Appeals explained that Article 23-A sets out a broad general rule that employers and public agencies cannot deny employment or license to an applicant solely based on the applicant’s status as an ex-offender. Rather it must measure its decision against the eight criteria set out in §753 of the Correction Law set out below,

1. The public policy of this state, as expressed in this act, is to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;

2. The specific duties and responsibilities necessarily related to the license or employment sought;

3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;

4. The time that has elapsed since the occurrence of the criminal offense or offenses.

5. The age of the person at the time of occurrence of the criminal offense or offenses;

6. The seriousness of the offense or offenses;

7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.”

Read about New York Community Service Society by clicking Article 78 Civil Service Job disqualification case.