Strange Bedfellows – How the Commissioner’s Edict on “Quiet Agreements” Aligned Teachers’ Unions and School Districts

Strange Bedfellows – How the Commissioner’s Edict on “Quiet Agreements” Aligned Teachers’ Unions and School Districts by Edward A. Trevvett, Esq. Source:  NYMUNIBLOG - http://nymuniblog.com/?author=1 - Published by Harris Beach PLLC as a public service. Reproduced with permission. Copyright ©2013 -  All rights reserved.

"The New York State Education Department has managed to create quite a hullabaloo with its April 26, 2013* memo to school district and BOCES superintendents declaring void all “quiet agreements” between districts and their teachers’ unions that mitigate the use of this year’s student assessments in teachers’ APPR growth scores, particularly when the resulting teacher rating is “ineffective.”  At the heart of the matter are the new Common Core student assessments that began this year, which in turn reflect on teachers’ APPR scores and performance ratings.  The Common Core Standards, which have the laudable goal of making our children better prepared for college and careers, concomitantly dramatically increases the rigor of student assessments.  Teachers unions and school districts expect that student assessment scores based on the new Common Core Standards will be significantly lower, at least for the first couple of years.  That has led to some districts and unions to negotiate what the Commissioner of Education calls “quiet agreements” outside the APPR plans they jointly submitted to SED. The agreements set forth how the student assessments will be mitigated as a factor in a teacher’s APPR rating for the first year of the new APPR implementation. In one such “quiet agreement” entered into between the Buffalo City School District and its teachers union on January 15, 2013, the District promised not to use the first year of an ineffective rating to base the needed two years of consecutive ineffective evaluations as grounds to bring formal disciplinary charges against a tenured teacher for termination.

"That agreement between the Buffalo City School District and its teachers apparently rankled SED and resulted in its April 26 memowhich states in part:

"As part of the signed certification in each APPR plan, each superintendent (or BOCES District Superintendent) and the presidents of the district’s or BOCES’ board of education and teachers’ and administrators’ union acknowledged that such plan is the sole plan for the APPR of all classroom teachers and principals in the district or BOCES. With respect to all approved APPR plans, the Department considers void any other signed agreements between and among those parties to the extent that such agreements conflict with the approved APPR plan and the requirements of Education Law § 3012-c and Subpart 30-2 of the Rules of the Board of Regents (“regulations”), and does not recognize any such agreements as part of any approved APPR plan. School districts and BOCES must implement the terms of their approved APPR plans consistent with the requirements of Education Law § 3012-c and the regulations. (emphasis added)

"In response to SED’s April 26 memo, the New York State United Teachers (NYSUT) union wrote a scathing letter to SED Commissioner John King on April 30, 2013, repudiating SED’s position that it has the authority to void agreements negotiated under the Taylor Law. In that letter, NYSUT President Richard C. Iannuzzi states:

"I am writing concerning Dr. Rafal-Baer’s April 26 memorandum to school and district superintendents.

"While SED has the authority to approve APPR plans, it has no authority, beyond that limited power, to void or to pass on the legality of any agreement negotiated under the Taylor Law. Further, SED has no authority to issue a general pronouncement about the validity of Taylor Law agreements it has not reviewed and has no legal authority to review. Accordingly, we have advised each of our locals that we will take every appropriate measure to enforce any Taylor Law agreement negotiated in good faith with its Board of Education. If a dispute arises over the legality of any such agreement, the issue will be decided by PERB or the courts, not by SED.  (emphasis added)

"Dr. Rafal-Baer’s memo is an unfortunate continuation of SED’s repeated attempts to undermine Education Law 3012-c’s collective bargaining provisions. NYSUT continues to support the proper implementation of the law, but will not allow the rights of educators to be abused or the voice of educators to be silenced by SED’s attempts to take away their collective bargaining rights.

"SED’s April 26 memo has created what some would view as strange bedfellows in that many, if not most, School Superintendent and BOCES District Superintendents would wholeheartedly agree with NYSUT on this issue.  Insofar as SED’s memo is concerned, the key word in its pronouncement that “the Department considers void any other signed agreements between and among those parties to the extent that such agreements conflict with the approved APPR plan . . . .”  is CONFLICT.  In order to meet their statutory and regulatory requirements to the Commissioner, school districts and BOCES need only confirm that the provisions of their APPR plan are being implemented as set forth and as approved by SED in accordance with Education Law Section 3012-c and Subpart 30-2 of the Commissioner's Regulations.  Any side agreement on when a district or BOCES will or will not pursue disciplinary action under the new amended Section 3020-a provisions are separate and apart from the APPR plan.  The agreements are really about Education Law Section 3020-a(3)(c)((i-a) and not 3012-c.  Under the Section 3020-a amendments, it remains in a district’s discretion, not that of SED, to file disciplinary charges at the local level to terminate a teacher.

"In a press release also issued on April 30, the Commissioner appeared to somewhat minimize the Department’s definitive position set forth in its April 26 memo. In that press release the Commissioner indicated that while he expected “… roughly the same percentage of teachers to be identified in each performance category (Ineffective, Developing, Effective, Highly Effective) this year as last year.  We have asked districts to be thoughtful in their use of the data from this first year of Common Core assessments when evaluating teacher performance and we have every confidence that they will be.”  The Commissioner has failed to define or even hint at his interpretation of “thoughtful” in this high stakes context.  (emphasis added)

"In a postscript to the Buffalo City School District’s “quiet agreement” with its union, The Buffalo News reported that with a $50 million state aide gun to its head, the Superintendent of the Buffalo City School District issued a written statement informing the teachers union that “The state Education Department has determined that the memorandum of understanding dated Jan. 15, 2013, between the Buffalo City School District and the Buffalo Teachers Federation is void.”  Her written statement further clarifies that “The district will proceed in accordance with the department’s determination.”  

"In response, the union issued its own statement saying, “As far as we’re concerned, the agreement that we reached stands, and we will take whatever action is necessary to enforce that agreement, because it was fair.” BTF President Philip Rumore further stated, “If there has to be a battle, so be it.”

"With these ongoing threats of legal challenges over testing, data and teacher evaluations as set forth by the Commissioner and quickly followed by the Teachers’ Unions – Let the Games Begin!"

====================

* NYPPL notes that on April 26, 2013 Governor Andrew M. Cuomo issued the following statement:

"The State Education Department is correct in refusing to recognize any side deals between the Buffalo's teachers union and the school district. The suggested collusion was a borderline legal and ethical fraud on our students and the Buffalo superintendent was right to affirm that no side deals will be recognized. We promised the students’ performance - they deserve it and they will have it."

Educator must serve at least 40% of his or her workday in the tenure area in which he or she claims greater seniority than others in that tenure area for the purposes of layoff

Educator must serve at least 40% of his or her workday in the tenure area in which he or she claims greater seniority than others in that tenure area for the purposes of layoff

Decisions or the Commissioner of Education, Decision 16,480

The school board granted Teacher tenure in the special education tenure area, About two years later the school board adopted a resolution abolishing two special education positions in the special education tenure area and notified Teacher that, as he was one of the least senior persons in the special education tenure area, his services were being discontinued at the end of the school year and that he would be placed on a “preferred eligibility list.”

Teacher, claiming that he was improperly terminated in violation of Education Law §§2510 and 3013 and that he was more senior than five other teachers in the special education tenure area, filed an appeal with the Commissioner seeking an annulment of the district’s determination terminating his services and reinstatement as a full-time teacher of special education, with back pay and benefits.

The school district argued that Teacher [1] failed to meet his burden of demonstrating that he was not one of the least senior teachers in the special education tenure area and [2] that he is not entitled to seniority in the special education tenure area because he did not spend at least 40% of his workday teaching in the special education tenure area.

The Commissioner said that Education Law §3013(2) provides that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure [area] of the position abolished shall be discontinued.” Further, 8 NYCRR 30-1.1(f) [Rules of the Board of Regents] defines seniority as follows: “Seniority means length of service in a designated tenure area ....”

The significant issue in Teacher’s appeal was whether Teacher was one of the two least senior teachers in the special education tenure area. Noting that “In general, seniority may be accrued in a given tenure area only if the service of the educator in such area constitutes 40% or more of the total time spent in the performance of instructional duties (8 NYCRR §30-1.1 [f] and [g])"  the Commissioner ruled that Teacher "has not established that the work he performed was in the tenure area of special education."

Although Teacher did hold permanent certification in special education and was granted tenure in the special education tenure area, the record showed that Teacher never devoted at least 40% of his work time to instruction in special education. Rather, said the Commissioner, the record showed that Teacher’s assignment comprised one special education resource room class and alternative education classes in English, mathematics, social studies and global history.

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief. As Teacher failed to submit any lesson plans or any other evidence to demonstrate that he spent more than 40% of his time in the special education tenure area during any of relevant school years, the Commissioner found that Teacher “never served in the special education tenure area.”

Nor, said the Commissioner, does the prohibition contained in 8 NYCRR §30-1.9 against assigning a professional educator to devote a substantial portion of his or her time in a tenure area other than that in which he or she has acquired tenure without his or her consent apply to these facts as from the “inception of his employment by the Board Teacher never devoted a substantial portion of his time within the special education tenure area and therefore was not a professional educator entitled to the protection of 8 NYCRR §30-1.9."

The Commissioner said that he was “constrained to dismiss this appeal,” and noted that when Teacher commenced his employment with the district the board lacked the authority to offer him a tenured position as a special education teacher. He then took this opportunity to “remind [the] board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16480.pdf

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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The positions of town board member and building administrator for the local housing authority held incompatible under the circumstances

The positions of town board member and building administrator for the local housing authority held incompatible under the circumstances

Informal Opinion of the Attorney General 2013-2

A town board member was hired as a building administrator by the housing authority board members and is currently is holding both positions. The town attorney asked the Attorney General for his views concerning this appointment.

Noting that the town board is vested with the power to appoint and to removal members of the housing authority board member, the Attorney General concluded that the positions of town board member and building administrator for the Authority were incompatible.

The Attorney General explained that the tenure of the members of the housing authority board depends on the determination of the town board. Accordingly, the housing authority board may be unable to impartially supervise its employee who also serves on the town board and thus wields a portion of the town board's appointment and removal power with respect to the housing authority board. Further, opined the Attorney General, “At the least, service as both a member of the town board and housing authority employee will create the appearance of impropriety, which should be avoided to maintain public confidence in the integrity of government.”

Additionally, the Attorney General said that the recusal of the housing authority employee from town board discussion and appointment or removal of housing authority board members would not remedy the incompatibility of the positions. When considering the appointing or removing a housing authority board member who takes part in determining the salary and the terms and conditions of their town board colleague's employment, the impartiality of the remaining town board members would not be free from doubt.

In this instance the housing authority board, which hires the Authority's employees, determines their qualifications and duties, and fixes their compensation, subject to the approval of the town board, results in the housing authority board members exercising these powers over the building administrator who also serves as town board member.

The opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-2_pw.pdf

Employer held liable for employee’s failure to call for assistance when asked to do so by police officers

Employer held liable for employee’s failure to call for assistance when asked to do so by police officers

Filippo v New York City Tr. Auth., 2013 NY Slip Op 03025, Appellate Division, First Department
Jannet Velez v 2013 NY Slip Op 03025, Appellate Division, First Department

Two police officers were injured in a subway station as the result of an individual’s resisting arrest. The criminal act leading to the arrest was committed in the street in the presence of the police officers who chased the perpetrator into the subway station.

Upon entering the station the police officers, who were in plainclothes, displayed their shields and asked the station agent to “call for backup” support. The station agent was inside a locked token booth that was equipped with an Emergency Booth Communication System (EBCS) that would have enabled him to summon help by pressing a button or stepping on a pedal.

Both police offers were injured when the perpetrator put up “a fierce and protracted struggle to resist arrest.” The station agent, however, watched the struggle from his token booth and did not activate the EBCS or make any other attempt to summon help.

The police officers sued the Transit Authority on the theory is that station agent’s failure to call for help constituted negligence which was a proximate cause of their injuries. Although Supreme Court granted the Transit Authority's motion for summary judgment, finding that the station agent was under no duty to call for any assistance, the Appellate Division reversed the lower court’s ruling.

The court explained that Public Authorities Law §1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system and is held to a duty of ordinary care under the particular circumstances of each case.

In Crosland v New York City Tr. Auth. 68 NY2d 165, the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. The Appellate Division said that the trial court’s holding that Crosland had no application in this instance because the plaintiffs were police officers was incorrect.

Noting that General Obligations Law §11-106 gives police officers as well as firefighters, who are injured in the line of duty, “a distinct right of action against tortfeasors that cause such injuries,” the Appellate Division said that the police officer’s lawsuit was not barred by their status as police officers and the Transit Authority's liability was established at trial.

In addition, the court rejected the Transit Authority argument that the evidence did not establish that a timely response on station agent’s part would have prevented the police officer from being injured as “this argument was raised for the first time on appeal” but indicated that if it were properly before the court it “would find it unavailing.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03025.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapol

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending May 4, 2013 [Click on text highlighted in bold to access the full report] 

Entergy Shareholders To Take Up DiNapoli Proposal On Nuclear Power Safety

New York State Comptroller Thomas P. DiNapoli Friday raised concerns with the storage of nuclear fuel at Entergy Inc.’s annual shareholder meeting in Little Rock, Ark. DiNapoli’s shareholder proposal calls for the company to implement a policy to minimize the amount of nuclear waste it stores in spent fuel pools and transfer that waste into dry cask storage.

DiNapoli: State Overtime Costs on the Rise

Overtime earnings at state agencies rose nearly 11 percent in 2012 to $529 million, escalating a trend that began in 2009, according to a report released Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: State Ends Fiscal Year in Solid Position But Challenges Remain

Despite unexpected costs from Superstorm Sandy and a weaker than expected economy, New York State ended state fiscal year 2012–13 in a stable cash position compared to recent years, according to an end of the year report released Monday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: St. Lawrence County Needs Long–Range Financial Plan

St. Lawrence County is coping with cash flow difficulties and a sharp decline in surplus funds, according to an audit issued Thursday by State Comptroller Thomas P. DiNapoli. The audit notes that the county’s weakening fiscal health has resulted in program cuts, tax increases and a potential operating deficit.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits:

the Village of Dresden;

the Village of Hempstead;

the Village of Middleburgh;

the Town of Newfield;

the Town of Pulteney; and

the Village of Whitney Point.

Comptroller DiNapoli School Releases Audits

the Campbell–Savona Central School District; and,

the Maine Endwell Central School District.

Governor Como appoints Catherine Scott to serve as the State’s Inspector General

Governor Como appoints Catherine Scott to serve as the State’s Inspector General

On May 2, 2013 Governor Andrew M. Cuomo announced that he has appointed Catherine Leahy Scott to serve as the Inspector General of New York State. Ms. Scott has been serving as the Acting Inspector General since February 2013.

While Ms. Scott served as Acting Inspector General, the New York State Inspector General’s Office has had numerous significant investigations, findings and reports, including:

• The investigation of a state employee for stealing nearly one million dollars in federal government funds that were intended to be used by New York State to provide rent subsidies for low income families. This investigation resulted in the federal prosecution and conviction of this state employee.

• The investigation of improper lab practices in the Monroe County Public Safety Laboratory, which involved the destruction of key evidence in criminal cases in that region.

• An investigation which led to the indictment of the director of a Bronx not-for-profit corporation for bribery. The Inspector General’s investigation revealed the director received thousands of dollars in home improvements from contractors with whom his not-for-profit was doing state business, and who received government-funded renovation contracts intended to assist low and middle income residents.

• An investigation that found mismanagement, faulty procurement practices and security lapses at the New York State Fair. The investigation resulted in sweeping changes at the State Fair.

• In 2013 Ms. Scott trained the heads of all Executive branch agencies and authorities, as well as their chief counsels and ethics officers. Her statewide presentations provided uniform standards to the Executive branch, including codes of conduct and best practices to ensure integrity and the efficient operation of state government.

 

Teacher terminated after rejection constructive criticism of her ineffective teaching methods

Teacher terminated after rejection constructive criticism of her ineffective teaching methods

A tenured New York City teacher challenged her termination following a disciplinary arbitration hearing. Supreme Court dismissed her Article 75 petition and confirmed the New York City’s cross motion to confirm the arbitration award.

The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The decision notes that “Adequate evidence in the record supported the Hearing Officer's determination” that the teacher was guilty of multiple specifications charging her with failure to follow procedures and carry out normal duties, and incompetent and inefficient service during three school years.

Further, said the court, evidence in the record showed that the teacher was either unwilling or unable to implement suggestions and constructive criticism of her ineffective teaching methods.

Quoting the Pell Doctrine [Pell v Board of Education, 34 NY2d 222], the Appellate Division said that under the circumstances the penalty of termination “does not shock our sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03035.htm

Disciplinary hearing held in absentia after employee's attorney’s motion to withdraw from the matter is granted by the administrative law judge

Disciplinary hearing held in absentia after employee's attorney’s motion to withdraw from the matter is granted by the administrative law judge

New York City Office of Administrative Trials and Hearings,OATH Index No 911/13

The New York City Administration for Children’s Services filed eight disciplinary charges, alleging, among other acts of misconduct, that a Juvenile Counselor employed by Children's Services failed to immediately investigate, report, and document a reported incident of alleged child abuse at a juvenile detention center and then later failed to cooperate fully in an investigation of the matter.

The employee failed to appear at the hearing as scheduled. His attorney, however, did appear at the hearing and stated that she had made numerous attempts to contact the employee by Federal Express, by mail, and by telephone, but was unsuccessful. The attorney provided OATH Administrative Law Judge Ingrid M. Addison with proof that she had notified the employee of the hearing date and had notified the employee that she might withdraw representation if she did not hear from him.

The employee’s attorney, based on the employee’s failure to communicate with her, asked to be relieved as counsel pursuant to §1-12(a) of OATH’s Rules of Practice.*

Judge Addison granted the attorney's motion because the employee’s failure to communicate with her rendered her representation of the individual unreasonably difficult and because the ALJ could foresee no “material adverse effect on the interest of [the employee]."

The ALJ then proceed to hold the disciplinary hearing in absentia** and found that: Children’s Services 

[1] Children’s Services had proven seven of its eight allegations;

[2] That there was undisputed evidence of the employee’s misconduct; and 

[3] That there was no mitigating circumstance for the employee’s failure to perform his duty..

Children’s Services had requested a 45-day suspension without pay. Judge Addison agreed that this was an appropriate penalty under the circumstances and recommended that the employee be suspended without pay for forty-five days.

* §1-12(a), Chapter 1, Subchapter B, of OATH’s Rules of Practice provides as follows: An attorney who has filed a notice of appearance shall not withdraw from representation without the permission of the administrative law judge, on application. Withdrawals shall not be granted unless upon consent of the client or when other cause exists as delineated in the applicable provisions of the Code of Professional Responsibility.

** The matter proceeded as an inquest after the Children’s Services presented its proof of service of the notice of the hearing by certified and regular mail addressed to the employee’s address on file with Children’s Services. The certified mailing to the employee was returned by the United States Postal Service marked “unclaimed.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-911.pdf

Governor Cuomo makes millions of additional records available on the Internet

Governor Cuomo makes millions of additional records available on the Internet

On May 1, 2013, Governor Andrew M. Cuomo made millions of additional records from multiple government agencies available on New York’s new, comprehensive data transparency website, Open.ny.gov, which was launched earlier this year to provide user-friendly, one-stop access to data from the state, localities and the federal government.

The data featured in a new “Transparency” sectionon the website includes: campaign contribution and expenditure records from the New York State Board of Elections dating back to 1999; New York State lobbying and enforcement records from the Joint Commission on Public Ethics; attorney registration as far back as 1898 from the Office of Court Administration; the New York State employee phone directory; and information on public authorities from the Authorities Budget Office.

The voluminous additional data can be searched by keyword, cross-referenced with other public datasets, downloaded for analysis, and graphed, mapped or charted using the tools available through the website.

The data published includes:

· Campaign Contributions, Expenditures, and Committees: Over seven million records of campaign contributions and expenditures dating back to 1999, along with a complete list of candidate committees registered with the Board of Elections;

· Lobbying: Complete disclosure data from the last six years of lobbying reports required under New York State law from lobbyists, clients, and public corporations. Data includes the identities of lobbyists and clients, lobbying expenditures and compensation, and subjects lobbied. The site also includes information newly required under the Public Integrity Reform Act of 2011 on client sources of fundingand lobbyist- and client-reportable business relationships, as reported to the Joint Commission on Public Ethics, plus information on lobbyist disbursement of public money;

· Attorney Registration: New York State attorney registration information, including the admission date, current status (i.e., registered, disbarred, deceased, etc.), and other public information about all attorneys registered in New York State, including attorneys admitted to practice law as far back as 1898; and

· Budget Vetoes: To further increase transparency in the New York State budget process, the site now provides information about budget vetoes in the current budget. Following the enactment of the 2013-14 budget, Governor Cuomo vetoed 202 items that were added by the Legislature. Searchable, downloadable information on these vetoes is now available, including the justification for each item.

Open.ny.gov also now contains data on enforcement activities taken by the Joint Commission on Public Ethics and its predecessors dating back to 2008 and by the New York State Office of the Inspector General dating back to 2010; a new integrated list of public authorities as identified by the Authorities Budget Office; and a searchable, downloadable directory of New York State government employees, including office telephone numbers.

A contract of employment may shorten the controlling statute of limitations available to the employee with respect to his or her suing the employer if not unreasonable or “the product of overreaching”

A contract of employment may shorten the controlling statute of limitations available to the employee with respect to his or her suing the employer if not unreasonable or “the product of overreaching”
Hunt v Raymour & Flanigan, 2013 NY Slip Op 02715, Appellate Division, Second Department

Although contracts of employment are the exception with respect to most employments in the public sector, the decision by the Appellate Division in Hunt v Raymour and Flanigan, a decision involving a lawsuit between a former employer in the private section and its former employee, may be worthy of note by some public employers.

Thomas Huntsigned an application for employment with Raymour & Flanigan (R & F) that included a clause providing that "any claim or lawsuit relating to [his] service with [R & F] must be filed no more than six (6) months after the date of the employment action that is the subject of the claim or lawsuit." The employment application also stated that Hunt “agreed that he waived any statute of limitations to the contrary.”

Hunt was terminated by R & F some three years later. More than six months after his employment was terminated, Hunt sued R & F and one of R & F’s vice presidents seeking to recover damages based on alleged “employment discrimination and retaliation in violation of Executive Law §296 and [the] Administrative Code of the City of New York §8-107.”

Supreme Court denied R & F motion to dismiss the first and second causes of action asserted by Hunt against R & F in the action he had filed against it and R & F filed a notice of appeal challenging this aspect of Supreme Court's ruling *

Considering R & F’s appeal, the Appellate Division explained that when reviewing a motion to dismiss a complaint pursuant to CPLR §3211(a)(1), "dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law." In this instance, said the court, R & F submitted documentary evidence in the form of the employment application, which demonstrated that Hunt contractually agreed to commence any claim or lawsuit against R & F no more than six months after the date of the employment action that was the subject of the claim or lawsuit.

Significantly, the court stated that "The parties to a contract may agree to limit the period of time within which an action must be commenced to a period shorter than that provided by the applicable statute of limitations [and] [a]bsent proof that the contract is one of adhesion or the product of overreaching, or that [the] altered period is unreasonably short, the abbreviated period of limitation will be enforced" by the courts.

Accordingly, the Appellate Division ruled that Hunt’s arguments that the shortened limitations period set forth in the employment application was not applicable or was unenforceable were without merit. Thus, as Hunt commenced this action more than six months after the date on which his employment terminated, his first and second causes of action insofar as asserted against R & F should have been dismissed by Supreme Court pursuant to CPLR 3211(a)(1).

* The Appellate Division noted that “R & F's contentions on appeal that the third and fourth causes of action should have been dismissed [by Supreme Court] are not properly before this Court.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02715.htm

An electronic resource for law enforcement personnel, attorneys and others involved in law enforcement

An electronic resource for law enforcement personnel, attorneys and others involved in law enforcement

AELE provides unique resource for those involved in law enforcement, providing free publications and online back issues since 2000. It has a searchable library of more than 33,000 case digests organized into 700 + indexed topics. There are no advertisements, tracking "cookies" or popups on its website and users do not have to preregister. There is no time limit on research sessions and the contents of AELE’s online law library may be copied and pasted, saved or printed (except for commercial purposes).

AELE encourages readers to sign up for its e-mail alerts at http://www.aele.org/e-signup.html 

AELE also has a free search tool [http://www.aele.org/htdig/common/search.html] covering its database of more than 33,000 case summaries and offers access to its more than 33,000 case summaries, divided into 700 + topics.

1. Law enforcement civil liability at http://www.aele.org/law/Digests/civilmenu.html
2. Employment law and discipline at http://www.aele.org/law/Digests/emplmenu.html
3. Jail and prisoner legal issues at http://www.aele.org/law/Digests/jailmenu.html

The following items were posted in AELE’s May issue:

1. Article: Power Down: Tasers, the Fourth Amendment and Police Accountability, 91 N.C. Law Rev. 606 (Jan. 2013).

View at http://www.nclawreview.org/documents/91/2/mance.pdf

2. A new article appears in the AELE Monthly Law Journal.

* Public Protection -- Part One: The Physically Ill

Police officers inevitably run into individuals who are seriously ill, such as heart attacks, strokes, epileptic seizures, diabetic incidents, and any number of other health emergencies in which the lack of swift action may all too often mean the difference between life and death or permanent impairment and disability.

View at http://www.aele.org/law/2013-05MLJ101.html

3. The May 2013 issues of AELE's three periodicals have been uploaded.

The current issues, back issues since 2000, case digests since 1975, and a search engine are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

*** Law Enforcement Liability Reporter ***

Nine cases are discussed in this issue, including false arrest, firearms related, restraint asphyxia, photographing an officer making an arrest, immigration issues and search & seizure.

View at http://www.aele.org/law/2013all05/LR2013MAY.html

*** Fire, Police & Corrections Personnel Reporter ***

Ten cases are discussed in this issue, including disability claims, Weingarten rights, standby pay, pensions, retaliation, exclusionary rule, and other issues.

View at http://www.aele.org/law/2013all05/FP2013MAY.html

*** Jail and Prisoner Law Bulletin ***

Ten cases are discussed in this issue, including inmate orthopedic shoes, classification as a Mexican Mafia member, fatal drug interactions, a Ponzi scheme, religious hairstyles, retaliation, punitive segregation, sexual assault and workers compensation.

View at http://www.aele.org/law/2013all05/JB2013MAY.html

4. Selected criminal law and procedure cases are at two other free websites.

http://www.fletc.gov/training/programs/legal-division/the-informer/informer-editions-2012/and http://www.kenwallentine.com/Xiphos.html

Agency required to comply with its own procedures in processing a disciplinary action

Agency required to comply with its own procedures in processing a disciplinary action
Hassan v New York City Dept. of Correction, 2013 NY Slip Op 02686, Appellate Division, First Department

In this appeal of a CPLR Article 78 decision by Supreme Court that sustained the New York City Department of Correction’s [DOC] finding that the individual [Appellant] was guilty of certain charges, the Appellant conceded that the Hearing Officer’s determination was supported by substantial evidence.

Rather, Appellant contended, the record before the Supreme Court was defective because it was incomplete in that it lacked a record of the disciplinary hearing, DOC’s answer, and a written statement by a Correction Officer that the Hearing Officer was required to show Appellant as required by “DOC Directive 6500R-B(III)(C)(25) and (26).”

The Appellate Division agreed, explaining that “it cannot be determined on this record whether the Hearing Officer's failure to show [Appellant] the written statement by [the Correction Officer] prejudiced Appellant's defense.

Accordingly, said the court, it was remanding the matter to Supreme Court and directed DOC “to submit an answer pursuant to CPLR 7804(d) and any appropriate submissions pursuant to CPLR 7804(e), including a record of the hearing and a written witness statement [by the Correction Officer].”

The ruling further provides that after DOC made such submissions to Supreme Court, Supreme Court is to determine if the failure to provide Appellant with these writings “was harmless error.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02686.htm

A state may deny access to records available to its citizens pursuant to its Freedom of Information Law to individuals not citizens of that state who make a FOIL request for such records

A state may deny access to records available to its citizens pursuant to its Freedom of Information Law to individuals not citizens of that state who make a FOIL request for such records

McBurney Et Al. v. Young, Deputy Commissioner and Director, Virginia Division of Child Support Enforcement, Et Al.U.S. Supreme Court 14-7206

A challenge to Virginia's Freedom of Information Act (FOIA), which grants only citizens of Virginia access to all public records, does not violate the Privileges and Immunities Clause of the U.S. Constitution was rejected by U.S. Supreme Court, affirming the ruling by the Court of Appeals, 4^thCircuit.

Mark J. McBurney and Roger W. Hurlbert, respectively citizens of Rhode Island and California, each requested documents under the Virginia FOIA. Their requests were denied because of their citizenship although such documents would have been provided to them had they been citizens of Virginia.

The court explained that Virginia’s Freedom of Information Act “does not regulate commerce in any meaningful sense, but instead provides a service that is related to state citizenship.” Accordingly, said the court, it did not violate any provision set out in the U.S. Constitution when it refused to furnish certain information otherwise available to citizens of Virginia that it denied the McBurney plaintiffs.

In the words of the court: Under the Privileges and Immunities Clause, "[t]he Citizens of each State [are] entitled to all Privileges and Immunities of Citizens in the several States." U. S. Constitution, Article IV, §2, Clause. 1. We have said that "[t]he object of the Privileges and Immunities Clause is to 'strongly . . . constitute the citizens of the United States [as] one people,' by 'plac[ing] the citizens of each State upon the same footing with citizens of other States, so far as the advantages resulting from citizenship in those States are concerned.' "… This does not mean, we have cautioned, that ‘state citizenship or residency may never be used by a State to distinguish among persons.’ … Nor must a State always apply all its laws or all its services equally to anyone, resident or nonresident, who may request it so to do."

The Supreme Court concluded that “Virginia's citizens-only FOIA provision neither abridges any of McBurney's or Hurlbert's fundamental privileges and immunities nor impermissibly regulates commerce,” thus the constitutional claims advanced by McBurney and Hurlbert failed.

The decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/12pdf/12-17_d1o2.pdf

An employee is entitled to be defended at the employer’s expense notwithstanding that their action “while discharging their duties” violated a law, rule or regulation

An employee is entitled to be defended at the employer’s expense notwithstanding that their action “while discharging their duties” violated a law, rule or regulation

The Court of Appeals ruled that employees of the New York City Department of Education [DOE] who are sued for using corporal punishment are entitled to a defense provided by the City notwithstanding the fact that the employees' conduct violated a State regulation.

Both employees, paraprofessionals serving with the New York City schools, were defendants in civil suits brought by students who alleged that the employees hit them.

Although the employees do not dispute that the actions they were found to have committed violated a Rule of the Board of Regents, 8 NYCRR 19.5 (a), which prohibits corporal punishment, they asked the City to defend them in the civil actions brought against them.

The City of New York rejected their requests for it to defend them in the civil lawsuits. Supreme Court held that the City should provide for their defense; the Appellate Division reversed the Supreme Court’s ruling. The Court of Appeals reversed the Appellate Division’s determination.

The employees contended that they were entitled to having the City provide for their defense pursuant to Education Law §3028, which provides:

"Notwithstanding any inconsistent provision of any general, special or local law, or the limitations contained in the provisions of any city charter, each board of education, trustee or trustees in the state shall provide an attorney or attorneys for, and pay such attorney's fees and expenses necessarily incurred in the defense of a teacher, member of a supervisory or administrative staff or employee . . . in any civil or ciminal [sic] action or proceeding arising out of disciplinary action taken against any pupil of the district while in the discharge of his duties within the scope of his employment . . ." (Emphasis supplied by the Court of Appeals).

The court said the controlling issue is whether the actions that resulted in the students' lawsuits against the employees were taken "while in the discharge of [their] duties within the scope of [their] employment," as required by §3028. Although the City conceded that the employees were acting within the scope of their employment, it argued that the statutory words "discharge of . . . duties" have a more restrictive meaning, and that an employee who is violating his or her employer's regulations cannot be acting in the "discharge of [her] duties."

The Court of Appeals rejected the City's argument, explaining that "Scope of employment," "discharge of duties" and similar phrases have long been regarded as interchangeable, citing Joseph v City of Buffalo, 83 NY2d 141. Accordingly, the court concluded that the authors of Education Law §3028 “intended to provide a defense even where an employee's use of corporal punishment violated regulations.”

In the words of the Court of Appeals, “Section 3028 requires the City to provide an attorney not just in civil, but also in criminal cases — suggesting that the Legislature wanted even employees who engaged in highly questionable conduct to be defended at public expense. If the 1960 Legislature meant to exclude cases in which corporal punishment was forbidden by regulation — as it was in New York City when §3028 was enacted — it could have done so explicitly.”

The decision is silent with respect to the indemnification of the employees in the event either or both employees are held liable for damages in the civil actions giving rise to these appeals

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02775.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending April 18, 2013 [Click on text highlighted in bold to access the full report] 


DiNapoli Audit Finds $7.7 Million in Questionable Charges by Special Education Providers

The Lake Grove School and the Mountain Lake Children’s Residence, two special education providers run by the same company, overcharged taxpayers by as much as $7.7 million over a four–year period, according to an auditreleased Friday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: State’s Brownfield Cleanup Program Needs To Reach More Sites; Be More Cost–Effective

The New York State Legislature should examine options to restructure the state’s primary program to revitalize contaminated properties – the Brownfield Cleanup Program – in order to fully achieve the important economic, public health and environmental goals set when the program was created, according to a reportreleased Monday by State Comptroller Thomas P. DiNapoli.

DiNapoli Supports Lobbying Disclosure and Independent Director Proposals at Peabody Energy

New York State Comptroller Thomas P. DiNapoli Tuesday announced support for two shareholder proposals at Peabody Energy Corporation’s annual meeting on April 29 calling for Peabody to disclose corporate lobbying expenses and to require the chairman of the board to be an independent director.

DiNapoli Refers Investigation of Substance Abuse Provider to U.S. Attorney

Phoenix Houses of New York, Inc. provided inappropriate perks to its executives exceeding $223,000 while under contract with the Office of Alcoholism and Substance Abuse Services, according to a reportreleased Wednesday by State Comptroller Thomas P. DiNapoli. DiNapoli referred the findings to U.S. Attorney Preet Bharara’s office for review.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending April 26, 2013 [Click on text highlighted in bold to access the full report] 

Bloomingburg Joint Fire District – Internal Controls Over Financial Operations (Sullivan County)
The district board did not ensure that disbursements were made for authorized district purposes. The board did not adequately segregate duties or implement sufficient compensating controls. The district treasurer performs all aspects of the cash disbursements process – including preparing the monthly abstracts; printing, signing, and mailing the checks; and preparing the bank reconciliations – without sufficient oversight by the board.

Village of Depew – Internal Controls Over Capital Projects (Erie County)
Auditors found significant problems with the accounting for and reporting of capital project activity as well as the use of certain debt proceeds. The village did not maintain capital project records in a manner that readily provides information about actual resources committed and expenditures incurred throughout the course of each project, which often span two or more fiscal years.

Essex County Probation Department – Internal Controls Over Financial Operations (2013M-38)
County and department officials had not established an adequate system of internal controls over the department’s financial operations. As a result, cash receipts were not properly accounted for, secured, and deposited in a timely manner. The department’s failure to establish policies and procedures regarding DWI administrative fees has resulted in an inequitable assessment of fees to probationers and a lack of enforcement of inactive probationers’ delinquent accounts. For example, we found that 89 inactive probationers owe at least $9,710, but as much as $58,260, to the county for unpaid fees.

Essex County Sheriff’s Department – Internal Controls Over Cash Receipts and Disbursements (2013M-35)
Although the department established a money-handling policy in April 2012, cash receipts and disbursements were not processed in accordance with the policy. Auditors found the civil clerk performed virtually all financial duties without sufficient oversight or other mitigating controls. Bail and civil office cash receipts were not properly accounted for, secured, and deposited in a timely manner. Also, the department’s computer system allowed for the ability to modify and delete financial transactions, creating the opportunity for the manipulation and concealment of transactions.

Town of Johnsburg – Management Oversight and Online Banking (Warren County)
The town board did not adequately design, implement, or monitor internal controls over the town’s financial activities. The board did not conduct an annual audit of the records of officials and employees who receive and disburse cash. The town supervisor has not adequately segregated the bookkeeper’s online banking duties. Also, the town has not established a confirmation process with its bank for online transfers of town moneys.

Town of North Castle – Cash Disbursement (Westchester County)
Internal controls over cash disbursement are appropriately designed and operating effectively with the exception of bank reconciliations, which have not been prepared since May 2012. Because the town’s deposits total $26 million, the lack of bank reconciliations creates a risk that errors or fraudulent transactions could occur without detection.

Town of Owego Fire District – Board Oversight (Tioga County)
The district board did not audit and approve claims after the transactions occurred and prior to the treasurer paying those claims. Although the board did ensure that the goods purchased were for district purposes, they could not be sure that the amounts paid were aligned with its previously established expectations. In addition, district officials could not account for more than 50 percent of fuel delivered to two of the three district fire stations.

Rescue Fire Company, Inc. – Unaccounted-For Bar Receipts (Niagara County)
All four bar committee members had unmonitored access to the safe where the cash from bar operations was stored.  The board did not require bar committee members to have a second member present while conducting cash counts or adding or removing cash from the safe. Company officials said over the last several years, the bar committee chairman was able to divert cash from the cash register in the bar without their knowledge.

Village of Village of the Branch – Internal Controls Over Financial Operations (Suffolk County)
The village building inspector did not take an oath of office and, as generally required of a village officer, does not reside within the village. In addition, the village and the inspector have entered into a contract, which provides for an annual fee for basic services of $8,000 plus 50 percent of certain permit fees. During the audit period, the inspector received $84,197, nearly $73,000 of which was based on fees collected for building permits.  Because there is no cap on the amount of fees paid to the building inspector, the village cannot know whether the inspector’s compensation is excessive in any given year.

Beacon City School District – Budget Review (Dutchess County)
Auditors found that the significant revenue and expenditure projections in the preliminary budget are reasonable. The district’s proposed budget complies with the property tax levy limit.

Chenango Valley Central School District – Budget Review (Broome County)
Auditors found that the significant revenue and expenditure projections in the proposed budget are reasonable. The district’s proposed budget complies with the property tax levy limit.

Fairport Central School District – Financial Condition and Capital Improvement Project Expenditures (Monroe County)
The district’s budgeting practices have generated repeated operating surpluses and withheld significant funds from productive use. From fiscal year 2007-08 through 2011-12, the district generated net surpluses totaling $15.8 million, an average of $3.2 million in each year. Auditors also found we found that officials did not solicit proposals for $2.7 million in capital improvement project -related services, as required by the district policy.

Monroe-Woodbury Central School District (Orange County)
Auditors found that the significant revenue and expenditure projections in the proposed budget are reasonable. The district’s proposed budget complies with the property tax levy limit.

Oppenheim-Ephratah Central School District – Business Office Operations (Fulton County)
Auditors found the district established adequate internal controls over business office operations. Board policies and written procedures have been developed and adhered to by staff for cash receipts and disbursements, payroll, purchasing, and claims processing. Further, district officials developed appropriate segregation of duties amongst business office staff where possible and also implemented various reviews of the work performed as mitigating controls.

  ================================

For access to state and local government spending and more than 60,000 state contracts, visit http://www.openbooknewyork.com/. The easy-to-use website was created by Comptroller DiNapoli to promote openness in government and provide taxpayers with better access to the financial workings of government.

Judge removed from his position for cause notwithstanding his earlier resignation from the position

Judge removed from his position for cause notwithstanding his earlier resignation from the position

A former Judge [Judge] appealed a determination of the State Commission on Judicial Conduct in which the Commission had sustained a single charge of judicial misconduct against him and determined that he should be removed from office (see NYS Constitution, Article VI, §22; Judiciary Law §44[1]).

The Judge had earlier resigned from his position after admitting to certain conduct that he characterized as “indefensible” that occurred 40 years earlier.

Notwithstanding the Judge’s resignation, the Commission continued the proceeding and ultimately sustained the charge* and ordered Judge’s removal, finding that his admission, standing alone provided a sufficient basis for the determination.**

Citing Matter of Going, 97 NY2d 121 and Matter of Aldrich, 58 NY2d 279, the Court of Appeals affirmed the Commission’s action, explaining that it measures “the necessity for removal ‘with due regard to the fact that judges must be held to a higher standard of conduct than the public at large’ as even ‘relatively slight improprieties subject the judiciary as a whole to public criticism and rebuke, it is essential that we consider’ the effect of the Judge's conduct on and off the Bench upon public confidence in his [or her] character and judicial temperament."

The Court said that it agreed with the Commission that Judge's admissions, by themselves, were sufficient to warrant the finding of judicial misconduct. The admitted conduct undermined the integrity and impartiality of the judiciary and therefore, said the court, rendered Judge unfit for judicial office.

Noting that “[I]t is troubling that the petition is based solely on conduct that occurred 40 years ago —- 13 years before [Judge] was elevated to the bench,” the Court of Appeals said that the misconduct alleged is grave by any standard.

Accordingly, said the court, the determined sanction of removal should be accepted and Judge removed from the office of Judge.

* Two Commission members dissented in part on the ground that Judge had removed himself from his judgeship by resigning and that his post-resignation removal proceedings "served no purpose" in this case.

** Similarly, 4 NYCRR 5.3(b) which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides:provides, in pertinent part, “…when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation.” Many local civil service commissions have adopted a similar provision.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02773.htm

Employee’s argument that “mitigating circumstances” should temper imposing the penalty of dismissal from her position rejected

Employee’s argument that “mitigating circumstances” should temper imposing the penalty of dismissal from her position rejected

Thornton v Edwards-Knox Cent. Sch. Dist. Bd. of Educ., 2013 NY Slip Op 02450, Appellate Division, Third Department

A school bus driver [Driver] was promoted to Senior School Bus driver in 2006. She served in that capacity until her position was abolished in 2010 and she was returned to her previous duties as a bus driver.

The appointing authority then discovered that Driver had neglected to complete certain required records during the 2009-2010 school year and ultimately filed disciplinary charges against her pursuant to Civil Service Law §75 setting out nine counts of incompetence and misconduct alleging, among other things, that:

[1] She had failed to properly complete and maintain records required by several state agencies;

[2] She had provided bus drivers with advance notice of purportedly random drug and alcohol testing; and

[3] She had sent a disparaging email about the school district to transportation supervisors in other school districts.

The Hearing Officer found Driver guilty of seven of the nine charges and recommended that she be discharged. The appointing authority adopted the Hearing Officer's findings and recommendation as to the penalty to be imposed and dismissed Driver, who subsequently commenced a CPLR Article 78 proceeding challenging her termination. 

Supreme Court dismissed her petition. The Appellate Division sustained the Supreme Court’s ruling, explaining that in evaluating Driver’s appeal it ‘must consider whether, in light of all the relevant circumstances, the penalty is so disproportionate to the charged offense[s] as to shock one's sense of fairness.”

The Appellate Division first addressed Driver’s return to the position of bus driver after serving as senior bus driver noting that it was not a "demotion," but, rather, occurred as specified in a memorandum of understanding pursuant to which the position of senior bus driver had been created in contrast to being a disciplinary consequence of Driver's misconduct.

The decision notes that while Driver sent the disparaging email after being reinstated to a school bus driver position because she was "upset" about losing the post, most of the remaining charged conduct had occurred prior to the elimination of the position, but appointing authority neither learned about it nor took disciplinary action against Driver until after she had left the Senior School Bus Driver position.

The Appellate Division said that Supreme Court had noted that the charges here did not arise from a single issue or act, nor were the shortcomings limited to matters that did not impact student safety. Among the examples of misconduct described was the Driver “just before leaving the senior bus driver position in late August 2010 [had] discovered that she had ‘forgot[ten],’ for a period of almost a full year, to maintain certain required certifications for the school district's bus drivers” and wrote a note to successor that she placed “in a drawer with the unfinished paperwork and left for a vacation.”

The school district's employees testified that this and Driver's other failures endangered the school district's eligibility for state transportation aid and placed it at risk of fines and other legal and financial consequences and “[m]ost seriously, the safety of the school district's students was jeopardized by Driver's warnings to drivers of the dates of random drug and alcohol tests.”

As to mitigating circumstances that might temper imposing the penalty of dismissal, the Appellate Division said it was “unpersuaded by Driver's argument that, in light of her unblemished disciplinary record as a bus driver, she should not be terminated for her offenses involving supervisory and administrative responsibilities, as these are not part of her work as a bus driver” and found that the Driver's termination was neither disproportionate to her misconduct nor to the risk of harm it posed to the school district.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02450.htm

Employers must use the revised federal Employment Eligibility Verification Form (Form I-9) after May 7, 2013

Employers must use the revised federal Employment Eligibility Verification Form (Form I-9) after May 7, 2013.

The U.S. Citizenship and Immigration Services, Department of Homeland Security, advises employers that after May 7, 2013* only the newly revised federal Employment Eligibility Verification Form (Form I-9)** may be used 

New York State Department of Civil Service has added Advisory Memorandum 13-1 to the State Personnel Management Manual. This Manual applies to officers and employees of the State as the employer.

Advisory Memorandum 13-1, prepared by Marc Hannibal, Special Counsel, addresses the use of the newly revised federal Employment Eligibility Verification Form (Form I-9).

N.B. With respect to I-9 Forms prepared after May 7, 2013, only the new March 8, 2013 version of the Form I-9 will be accepted. The form and instructions for its use is posted on the Internet at:

 http://www.uscis.gov/files/form/i-9.pdf.

Political subdivisions of the State may wish to check with the responsible local civil service commission or personnel officer concerning the processing of the Form I-9 in their respective jurisdictions.

The Department of Civil Service’s Advisory Memorandum 13-1 is set out below:

 =================

This Advisory Memorandum updates State Personnel Management Manual Advisory Memorandum #09-01, dated March 13, 2009, located in Sections 1000 and 1800. Note on both copies of the 2005 Memo that this Advisory Memorandum should be consulted.

United States Citizenship and Immigration Services (USCIS) has published a revised Employment Eligibility Verification Form I-9 for use. Improvements to Form I-9 include new fields, reformatting to reduce errors, and clearer instructions for both employees and employers.

Effective March 8, 2013:

1. Employers should begin using the newly revised Form I-9 (Rev. 03/08/13)N for all new hires and reverifications.

2. Employers may continue to use previously accepted revisions (Rev.02/02/09)N and (Rev. 08/07/09) Y until May 7, 2013.

3. After May 7, 2013, employers must only use Form I-9 (Rev. 03/08/13)N.

The revision date of the Form I-9 is printed on the lower left corner of the form.

Employers should not complete a new Form I-9 for current employees if a properly completed Form I-9 is already on file.

Copies of the March 8, 2013 version of Form I-9 (including instructions) are available for download on the USCIS Web site at www.uscis.gov.

Print copies of the March 8, 2013 version of Form I-9 for your agency’s use and destroy all blank copies of previous versions of Form I-9 in your possession. Check the USCIS Web site regularly for the latest official information and guidance.

__________________________________________

* N.B. The March 8, 2013 revised Form I-9 notes that it expires on March 31, 2016. Presumably a replacement form will be promulgated by the Department of Homeland Security prior to that date.

** Form I-9 is used for verifying the identity and employment authorization of individuals hired for employment in the United States.

Unemployment resulting from taking advantage of a severance package or an early retirement incentive does not constitute good cause for leaving one's employment

Unemployment resulting from taking advantage of a severance package or an early retirement incentive does not constitute good cause for leaving one's employment

Rubscha (Commissioner of Labor), 2013 NY Slip Op 02609, Appellate Division, Third Department

Robert F. Rubscha’s employer had instituted a voluntary reduction in force program in an effort to avoid eventual layoffs. Although Rubscha, who had been employed for 29 years, had no information that his job would be eliminated, he nevertheless accepted the severance package offered by his employer out of concern that he or his coworkers would be laid off.

When Rubscha filed for unemployment insurance benefits the Unemployment Insurance Appeal Board ruled that Rubscha was disqualified from receiving unemployment insurance benefits because he voluntarily left his employment without good cause.

The Appellate Division sustained the Board’s determination, explaining that leaving a job in order to take advantage of a severance or early retirement package when continuing work is available does not constitute good cause for leaving one's employment.

In addition, the court noted that substantial evidence supported the Board's finding that Rubscha received retirement incentives identical to those that he would have been provided had he been laid off and that, as a result, he lacked "a compelling financial incentive to leave his job."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_02609.htm

In which nations are the readers of NYPPL located?

In which nations are the readers of NYPPL located?

Following up on the report that Washington University School of Law is now offering an online Legal English Class for Foreign Lawyers, in response to a number of inquires from readers as to the number of individuals outside the United States that access NYPPL, "Google Statistics" reports that in the last thirty [30] days, in addition to its 14,666 readers in the United States, this LawBlog had readers in the following nations:

France	2,778
Germany	392
Russia	348
United Kingdom	289
Ukraine	220
China	124
Poland	90
Israel	86
Turkey	72