Public policy favors the protection of employees’ seniority rights

Public policy favors the protection of employees’ seniority rights

Appeal of Alexander and Gonzalez from action of the Board of Education of the East Ramapo Central School District, Augustina West and Dionne Olamiju regarding termination of employment. Decisions of the Commissioner of Education, Decision No. 16,731

Angela Alexander (Alexander) and Madeline Gonzalez (Gonzalez) appealed the decisions of the Board of Education of the East Ramapo Central School District (Board) to terminate their services as administrators in the course of the abolishment of certain positions. The Commissioner of Education sustained their appeals.

Alexander was granted tenure in the tenure area of “Elementary Assistant Principal,” effective August 19, 2005; Gonzalez was granted tenure in the tenure area of “Elementary Assistant Principal,” effective July 1, 2005.

During the 2011-2012 school year, the school district excessed all elementary assistant principals as well as the two least senior secondary principals, effective June 30, 2012. Alexander and Gonzalez were notified that their positions as Elementary Assistant Principals were abolished and that their employment was terminated effective June 30, 2012. Alexander and Gonzalez filed an Article 78 proceeding in Supreme Court, Rockland County, seeking a determination that they were improperly terminated from their positions as Assistant Principals. Supreme Court dismissed the petition on the grounds that the Commissioner of Education had primary jurisdiction* over the dispute.

Alexander and Gonzalez contended that they hold tenure in the broader “Assistant Principal” tenure area and that the Board wrongfully granted them tenure in the more narrow area of “Elementary Assistant Principal” without their written consent. In addition, they argued that the Board’s decision to excess principals according to their seniority using the narrower tenure area violates applicable law and that they more senior than the two individuals who were continued in service.**

Initially the Commissioner addressed the issue of timeliness of this appeal, explaining that “An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding.” As Alexander and Gonzalez had commenced this appeal within 30 days of the Supreme Court’s decision, the Commissioner ruled the appeal was timely.

Addressing the merits of the appeal, the Commissioner noted that Education Law §3013(2) provides, in pertinent part, that when a position subject to this provision is abolished, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”

Although there are no clearly defined guidelines for determining the parameters of administrative tenure areas, a board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas, the Commissioner noted that “Public policy favors the protection of employees’ seniority rights,” explaining that “As tenure areas narrow, seniority rights become less meaningful” while “As tenure areas broaden, seniority rights take on greater significance.”

Citing Steele v. Bd. of Educ. of the City of New York, 40 NY2d 456, the Commissioner said that where tenure areas have been narrowed the employer must demonstrate that it, in fact, established the narrow, specific, tenure area ‘consciously’ and ‘by design’ and that the employee has been sufficiently alerted to that fact.”

Here the Board carried the burden of proving its intention to create narrower, multiple defined tenure areas for its administrators and that Alexander and Gonzalez were sufficiently alerted to the fact. In order to establish that Alexander and Gonzalez belonged in the tenure areas claimed by the Board, the Commissioner said that Board had to show that it had “adequately demonstrated that at the time of their appointments, the two categories had “traditionally been treated separately” by the district, and that [Alexander and Gonzalez] were ‘sufficiently alerted to the fact [that] they were entering ... entirely separate and independent’ areas, apart from that of the broad ‘Assistant Principal’.”

The Board submitted an affidavit from its Assistant Superintendent of Personnel/Secondary Education and other records indicating that:

1. Since 2000, the district has granted tenure to assistant principals only in the administrative tenure areas of “Secondary Assistant Principal” and “Elementary Assistant Principal.” 

2. Prior to 2000, assistant principals were granted tenure in the following tenure areas: “High School Assistant Principal,” “Junior High School Assistant Principal” and “Elementary Assistant Principal.”

3. A May 2000 agreement between the district and the East Ramapo Building Administrators Association (ERBAA), Alexander's and Gonzalez’s recognized collective bargaining unit, whereby 11 administrative members then serving in the high school assistant principal tenure area and the junior high school assistant principal tenure area agreed to be placed in the new secondary assistant principal tenure area.  

However, said the Commissioner, the 2000 agreement “does not apply to [Alexander and Gonzalez] or the narrower tenure area of ‘Elementary Assistant Principal.’” Accordingly, the Commissioner ruled that the documentation submitted by the Board failed to demonstrate that Alexander and Gonzalez were sufficiently alerted of the district’s alleged determination not grant tenure in the “Assistant Principal” tenure area after 2000. 

Although the Board submitted a copy of a Memorandum of Understanding in which Gonzalez acknowledged she was “serving in the position of Elementary Assistant Principal” and there was an agreement to adjust her salary, the Commissioner said that “nowhere in this document does Gonzalez consent to serving in the ‘Elementary Assistant Principal tenure area’, which is the issue in this case” and that this documentation was “unpersuasive to demonstrate Gonzalez’s consent to change tenure areas."

Viewing the totality of the evidence presented, the Commissioner held that the Board’s actions fail to support a determination that, upon hiring, Alexander or Gonzalez were either apprised that their tenure area would be the “Elementary Assistant Principal” tenure area, or that they acquiesced to placement within a new tenure area. Tenure areas, said the Commissioner, are fixed at the time a person is appointed and cannot be applied retroactively without the person’s consent.  

Noting that the record clearly indicates that Alexander and Gonzalez were appointed to probationary positions in the “Assistant Principal” tenure area the Commissioner said that although Board’s minutes and Notices of Tenure served on Alexander and Gonzalez state that each was appointed to tenure in the “Elementary Assistant Principal” tenure area, the Board has not met its burden of demonstrating that Alexander and Gonzalez were sufficiently alerted to their appointment in the “Elementary Assistant Principal” tenure area at the time of appointment or that they consented to a change in tenure area after such appointment.  

Thus, in abolishing the elementary assistant principal positions, the Board was required to excess the administrator(s) “having the least seniority in the system within the tenure of the position abolished”

The Commissioner then remanded the matter to the Board for a determination of Alexander's and Gonzalez’s seniority rights in the assistant principal tenure area and, based on such seniority, their right to reinstatement in the district as assistant principals on July 1, 2012, in accordance with this decision, including whether Alexander and Gonzalez are entitled to be restored to tenured positions as an “Assistant Principal”, “effective July 1, 2012, with back pay and retroactive benefits.”

* The doctrine of primary jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges the court will stay its consideration of the matter until the relevant administrative agency has applied its expertise to the salient questions [Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147].

** The School District contended that the two retained individuals were sent Notices of Tenure and of Appointment indicating that they received tenure as “Assistant Principals” but were actually tenured as Secondary Assistant Principals.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16731

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

Click on text highlighted in color to access the full report

New York State Comptroller Thomas P. DiNapoli announced his office completed the audits of the following governmental organizations. “In today’s fiscal climate, budget transparency and accountability for our local communities is a top priority,” said DiNapoli. “By auditing municipal finances and operations, my office continues to provide taxpayers the assurance that their money is being spent appropriately and effectively.”

Town of Blooming Grove – Board Oversight Over Recreation Cash Receipts (Orange County)
The board has not adopted comprehensive written policies for departmental cash receipts or implemented procedures to provide guidance for employees when recording transactions to help ensure financial reports are accurate and reliable.

Village of Cayuga Heights – Board Oversight (Tompkins County)
The board did not ensure the village’s accounting records were current, complete and accurate, and that purchases were made in accordance with the procurement policy. The village’s procurement policy is outdated and the current process does not comply with the procedures outlined in the policy.

Greenville Fire District #1 – Board Oversight (Greene County)
District budgets did not include detailed estimates of revenues and did not include estimates of fund balance. Claims were paid prior to board review and did not contain itemized vouchers. Also, the treasurer does not provide budget status reports to the board and there is no independent oversight to ensure that completed bank reconciliations are correct.

Hauppauge Fire District – Mandatory Training and Procurement (Suffolk County)
Three of the district’s five fire commissioners have not attended mandatory training, as required by law. In addition, the district did not always use competitive methods when procuring goods and services, and did not have contracts with all vendors.

Village of Holley – Financial Condition of the Water and Sewer Funds (Orleans County)
The board did not adequately monitor the financial condition of the water and sewer funds. Both funds relied on interfund advances from the general fund to help finance operations. As a result, the water and sewer funds had deficits of $153,000 and $37,000, respectively.

Town of Olean Volunteer Fire Company No. 1 – Controls Over Financial Activities (Cattaraugus County) The treasurer did not maintain appropriate records or provide the board with monthly financial reports. Company members did not maintain records for each activity to show an itemized list of the receipts collected from fund-raising events. Further, board minutes were missing from 14 of the 20 meetings held during the audit period.

Plattsburgh Public Library – Circulation Desk Cash Receipts (Clinton County)
Although the board adopted a circulation policy that contains procedures related to collecting cash receipts, the procedures were insufficient. Procedures did not establish which employees were authorized to collect cash receipts or the processes for determining accountability over cash receipts recorded in the library’s computer system.

Amendments to the Education Law included in the Governor's Budget Bill

Amendments to the Education Law included in the Governor's Budget Bill

2015 Article VII "Language Bills"*

The Governor’s Budget incorporates Senate 2010 [Same as Assembly 3010] which provides for certain changes to §3020-a of the Education Law and other provisions of the Education Law including sections addressing probation and tenure. Below are summaries of selected amendments to the Education Law set out in the bill:

1. Any alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after April 1, 2015 shall provide that all hearings shall be conducted before a single hearing officer and that such a pattern of ineffective teaching or performance shall constitute prima facie evidence of incompetence that can only be rebutted by clear and convincing evidence that the calculation of one or more of the teacher's or principal's underlying composite ratings on the annual professional performance reviews pursuant to §3012-c of the Education Law was fraudulent, and if not successfully rebutted, the finding, absent extraordinary circumstances, shall be just cause for removal.

2. An employee shall be suspended without pay if the employee is charged with misconduct constituting physical or sexual abuse of a student and is suspended pending an expedited hearing, provided that such an employee shall be eligible to receive reimbursement for withheld pay if the hearing officer finds in his or her favor.

3. All hearings commenced by the filing of charges on or after April 1, 2015 shall be heard by a single hearing officer.

4. Full and fair disclosure of the nature of the case and evidence against the employee by the employing board shall be public unless designated to be private at the discretion of the employee.

5. Full and fair disclosure of the witnesses and evidence shall be made by both parties in the manner prescribed in Articles 3 and 4 of the State Administrative Procedure Act.

6. Children shall be permitted to testify through sworn written or video statements.

7. A pattern of ineffective teaching or performance as defined in §30121-c of the Education Law shall constitute prima facie evidence of incompetence that can only be rebutted by clear and convincing evidence that the calculation of one or more of the teacher's or principal's underlying composite ratings on the annual professional performance reviews pursuant to §30121-c was fraudulent, and if not successfully rebutted, the finding, absent extraordinary circumstances, shall be just cause for removal. Nothing in this shall be construed to otherwise limit the defenses which the employee may place before the hearing officer in challenging the allegation of a pattern of ineffective teaching or performance, except that failure of the employing board to rehabilitate the teacher or principal and correct his or her deficiencies shall not be a defense.

8. Where charges of misconduct constituting physical or sexual abuse of a student are brought, the hearing shall be conducted before and by a single hearing officer in an expedited hearing, which shall commence within seven days after the pre-hearing conference and shall be completed within sixty days after the pre-hearing conference. The hearing officer shall establish a hearing schedule at the pre-hearing conference to ensure that the expedited hearing is completed within the required timeframes and to ensure an equitable distribution of days between the employing board and the charged employee. Notwithstanding any other law, rule or regulation to the contrary, no adjournments may be granted that would extend the hearing beyond such sixty days, except as authorized in the Education Law. A hearing officer, upon request, may grant a limited and time specific adjournment that would extend the hearing beyond such sixty days if the hearing officer determines that the delay is attributable to a circumstance or occurrence substantially beyond the control of the requesting party and an injustice would result if the adjournment were not granted.

9. The hearing officer shall adopt the penalty recommended by the employing board except where the hearing officer concludes that the board acted in bad faith or there are extraordinary circumstances in which the recommended penalty would be so disproportionate to the offenses proven as to be shocking to the conscience of the hearing officer.

10. Teachers and all other members of the teaching staff appointed on or after July 1, 2015 shall be appointed by the board of education, upon the recommendation of the superintendent of schools, for a probationary period of five years, except that in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years or as a seasonally licensed per session teacher of swimming in day schools who has served in that capacity for a period of two years and has been appointed to teach the same subject in day schools on an annual salary, the teacher shall be appointed for a probationary period of three years; provided, however, that in the case of a teacher who has been appointed on tenure in another school district within the state, the school district where currently employed, or a board of cooperative educational services, and who was not dismissed from such district or board as a result of charges brought pursuant to Education Law §3020-a.1 the teacher shall be appointed for a probationary period of four years. The service of a person appointed to any of such positions may be discontinued at any time during such probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education. Each person who is not to be recommended for appointment on tenure shall be so notified by the superintendent of schools in writing not later than sixty days immediately preceding the expiration of his or her probationary period.

11. Administrators, directors, supervisors, principals and all other members of the supervising staff, except associate, assistant and other superintendents, appointed on or after July 1, 2015 shall be appointed by the board of education, upon the recommendation of the superintendent of schools for a probationary period of five years. The service of a person appointed to any of such positions may be discontinued at any time during the probationary period on the recommendation of the superintendent of schools, by a majority vote of the board of education.

12. If no affirmative action is taken by the board of education to terminate a classroom teacher or building principal, or to approve or deny tenure to a classroom teacher or building principal at the expiration of the probationary period, the classroom teacher or building principal shall remain in probationary status until the end of the school year in which such teacher or principal has received such ratings of effective or highly effective for the five preceding school years, during which time a board of education shall either discontinue the services of such person, deny tenure or approve tenure for those classroom teachers or building principals who otherwise have been found competent, efficient and satisfactory.

13. The board of education may grant tenure contingent upon a classroom teacher's or building principal's receipt of a rating of effective or highly effective in the fifth year, and if such contingency is not met, the grant of tenure shall be void and unenforceable and the teacher's or principal's probationary period shall be extended.

14. Failure to maintain certification as required by this chapter and the regulations of the commissioner of education shall constitute cause for removal.

*  Other "Language Bills"

Public Protection and General Government [S2005-B]

Education, Labor and Family Assistance [S2006-B]

Health and Mental Hygiene [S2006-B]

Transportation, Economic Development and Envioronmental Con. [S2008-B]

Revenue [S2009-B]

Criminal Justice Reform [S2011]

Limit Immunity from Prosecution [S2012]

Due process in cases involving student discipline differs from due process requirements involving the assessment of academic performance

Due process in cases involving student discipline differs from due process requirements involving the assessment of academic performance

2015 NY Slip Op 02775, Appellate Division, Second Department

Shortly before graduation a student [Student] in the nursing program at a Community College (College) was dismissed from the program for alleged academic deficiency. The student was told that she would receive a failing grade in a course and was given the option instead to withdraw from that course and repeat it.

Student declined to withdraw from the course and was dismissed from the program. She sued the College, challenging her dismissal and also sought damages for, among other things, breach of contract and violation of her right to due process.

Supreme Court denied Student’s petition, dismissed the proceeding and Student appealed.

The Appellate Division sustained the Supreme Court ruling explaining that unlike disciplinary action taken against a student, an institution’s assessments of a student's academic performance, whether in the form of particular grades received or measures taken because a student has been judged to be scholastically deficient, necessarily involve academic determinations requiring the special expertise of educators. According, to preserve the integrity of the credentials conferred by educational institutions, the courts have long been reluctant to intervene in controversies involving purely academic determinations.

The court further explained that although determinations made by educational institutions concerning the academic performance of their students are not completely beyond the scope of judicial review, "that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or contrary to Constitution or statute."

In this case, said the court, the Student’s professors at the College “made a substantive evaluation of her academic capabilities, and found that her clinical skills were not sufficient to pass the course.” Further, there was no evidence in the record that the professors' evaluations were made in bad faith or were arbitrary and capricious or irrational, nor was there any evidence of a violation of the New York or United States Constitution, or of any statute.

As to Student’s claim that she was deprived of due process, the Appellate Division commented that the requirements of due process are less stringent when a student is dismissed for academic reasons than when a student is dismissed or suspended for disciplinary reasons. The court found that with respect to academic evaluations, Student was not entitled to a formal hearing, and the procedure utilized by the College was adequate.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02775.htm

Applying the Doctrine of Primary Jurisdiction

Applying the Doctrine of Primary Jurisdiction

2015 NY Slip Op 02769, Appellate Division, Second Department

A teacher [Educator] sued the school district when it declined to add two years to her “seniority credit.” Supreme Court granted the school district’s motion “pursuant to the doctrine of primary jurisdiction to the extent of staying the proceeding so that the parties could bring the issue before the New York State Commissioner of Education.” Educator appealed.

The Appellate Division affirmed the Supreme Court’s ruling with costs awarded to the school district.

The court explained that "The doctrine of primary jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions."

This doctrine applies, said the Appellate Division, "where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body; in such a case the judicial process is suspended pending referral of such issues to the administrative body for its views," citing Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147.

In this instance the question before the court concerned the appropriate calculation of Educator's seniority and thus, said the Appellate Division, fell within the special knowledge and expertise of the Commissioner of Education.

Thus, said the court, Supreme Court properly granted the school district’s motion to the extent of staying the proceeding so that the parties could bring the issue before the Commissioner.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02769.htm

A collective bargaining agreement may establish a vested right to a continuation of the same health coverage enjoyed by the individual at the time of his or her retirement

A collective bargaining agreement may establish a vested right to a continuation of the same health coverage as a retiree enjoyed by the individual at the time of his or her retirement

Guerrucci v School Dist. of City of Niagara Falls,  2015 NY Slip Op 02617, Appellate Division, Fourth Department

Reversing a ruling by Supreme Court, the Appellate Division held that the “individual plaintiffs are entitled to the health insurance coverage provided in the collective bargaining agreement in effect at the time each individual plaintiff retired” and “those individual plaintiffs eligible for conversion of health insurance coverage ‘supplemental to Medicare’ are entitled to such coverage that, when combined with Medicare, equals the health insurance benefits prior to such conversion.”

Retired administrators [Plaintiffs] who were employed by Niagara Falls City School District alleged that the School District was in breach of contract with respect to its providing health insurance to these retirees.

The Appellate Division noted that the parties did not dispute that the language at issue in the various CBAs is unambiguous and, at oral argument, the School District had conceded that this case is controlled by Kolbe v Tibbetts (22 NY3d 344).

In Kolbe the Court of Appeals held that the relevant collective bargaining agreements [CBAs] “establish a vested right to a continuation of the same health coverage under which plaintiffs retired, until they reach age 70, and that the Insurance Moratorium Law does not provide a basis for abrogating retirees' vested contractual rights.”

Here the 1984-1987 and 1987-1990 CBAs provided that "[a]ny administrator who retires . . . shall continue to receive the Blue Cross/Blue Shield coverage in effect at the time of his or her retirement, excluding dental coverage and major medical insurance, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage" while the 1990-1994 CBA provided that "[a]ny administrator who retires . . . shall continue to receive the Blue Shield coverage in effect at the time of his or her retirement, excluding dental, vision and major medical coverage, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage," except for those retirees entitled to conversion of that coverage to coverage that is "supplemental to Medicare." The 1994-1997 and later CBAs provide that "[a]ny administrator who retires . . . shall continue to receive medical coverage in effect at the time of his or her retirement, excluding dental, vision and major medical coverage, until the administrator becomes eligible for Medicare, at which time the Board [of Education] shall no longer provide such coverage," except for those entitled to conversion of that coverage to coverage that is "supplemental to Medicare."

The court said that it:

1. It agreed with Plaintiffs that the plain meaning of the CBA provisions at issue is that, upon retirement, a retiree will receive the health insurance coverage that the retiree was receiving prior to retirement, until the retiree becomes eligible for Medicare;* and

2. It agreed  with Plaintiffs that the supplemental coverage provided for in the CBAs required that School District provide health insurance coverage that, when combined with Medicare, equaled the health insurance benefits that the retirees enjoyed prior to qualifying for Medicare, 

The court explained that in interpreting a CBA, "it is logical to assume that the bargaining unit intended to insulate retirees from losing important insurance rights during subsequent negotiations by using language in each and every contract which fixed their rights to coverage as of the time they retired."

In the words of the Appellate Division, “In view of our determination that the CBAs prevented [the School District] from reducing the retirees' health insurance benefits during retirement and that the intent of the CBAs was to ‘fix [the retirees'] rights to coverage as of the time they retired’ ... we conclude that the provision for ‘coverage . . . which is supplemental to Medicare’ means coverage that when combined with Medicare is equivalent to the health insurance coverage that the retirees enjoyed prior to becoming eligible for Medicare.”

* The Appellate Division noted that the CBAs provided that when certain retirees "reache[d] his or her sixty-fifth (65th) birthday and qualifie[d] for medical insurance under Social Security, the coverage shall be changed to that which is supplemental to Medicare."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02617.htm

Police officer disciplined for attempting to “fix tickets”

Police officer disciplined for attempting to “fix tickets”

2015 NY Slip Op 02686, Appellate Division, First Department

After a disciplinary hearing the hearing officer found the police officer was guilty of asking other officers for help in preventing the “prosecution of summonses issued to other individuals” on two occasions.

The Police Commissioner, adopting the findings of the hearing officer, determined that the police officer had engaged in conduct prejudicial to the good order, efficiency or discipline of the police department. The penalty imposed: a one year of suspended-dismissal probation, a five days suspension without pay and the forfeiture of 25 vacation days.

In response to the police officer’s appeal the Appellate Division unanimously confirmed the Police Commissioner’s determination which decision the court held was  supported by substantial evidence.

The Appellate Division commented that the inference of the hearing officer that police officer had attempted to prevent “the prosecution of summonses” on two occasions was rationally based on police officer's admission that he requested another officer take care of summonses "[a] couple of times," explaining that it perceived no basis in the record for disturbing the hearing officer's credibility findings.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02686.htm

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The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on

http://booklocker.com/books/5215.html

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Employer not liable for its employee’s off-duty misconduct outside the scope of his or her employment or not in furtherance of the employer’s business

Employer not liable for its employee’s off-duty misconduct outside the scope of his or her employment or not in furtherance of the employer’s business

2015 NY Slip Op 02560, Appellate Division, First Department

The Administrator of the Estate of an individual shot by an off-duty New York City police officer after a "road rage" related altercation sued the City for alleged negligent training and instruction of the officer involved in the incident.

Supreme Court held that the off-duty police office’s act of shooting the decedent as the result of “road rage” was a private, intentional act that occurred outside the scope of his employment as a police officer.

The Appellate Division agreed, ruling that any alleged deficiencies in the City's training and instruction of its police officers could not have been the  proximate cause of the decedent's injuries.

In another case involving alleged off-duty misconduct, Jane Doe v New York City Department of Education, 2015 NY Slip Op 02433, it was undisputed that a teacher and a student had engaged in unlawful sexual intercourse after school hours. The Appellate Division, however, rejected the student’s argument that the New York City Board of Education was vicarious liable for the teacher’s misconduct as the alleged sexual intercourse with the student was not in furtherance of school business and was outside the scope of the teacher's employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02560.htm

The Doe decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02433.htm

Those concerned with employment related litigation in the public sector may be interested in some of the LawBlogs listed by Justia

Those concerned with employment related litigation the public sector may be interested in some of the LawBlogs listed by Justia

Justia currently tracks the readership of 6,098 Lawblogs in 74 subcategories, ranking the most popular based on the number of visits to the Blawg from the BlawgSearch search engine and directory listing pages. For example,

 

“Administrative Law” Blawgs are listed at:

http://blawgsearch.justia.com/blogs/categories/administrative-law

“Employment Law” Blawgs are listed at:

http://blawgsearch.justia.com/blogs/categories/employment-law

 “Government Law” Blawgs are listed at:

http://blawgsearch.justia.com/blogs/categories/government-law

In addition, Blawgs with a “New York State” Focus are listed at:

http://blawgsearch.justia.com/blogs/countries/united-states/new-york

Featured Blawgers are chosen by editorial selection of the BlawgSearch team.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 28, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 28, 2015

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases School Audits New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the:

Academy Charter School,

Eastport-South Manor Central School District, and the

Liverpool Central School District.

DiNapoli and Diaz Help Bronx Residents Claim $245 Million in Lost Money

New York State Comptroller Thomas P. DiNapoli and Bronx Borough President Ruben Diaz Jr. encouraged Bronx residents to search for forgotten money belonging to them at Bronx Borough Hall. More than 444,000 accounts valued at nearly $245 million are owed to Bronx residents.

The State’s Abandoned Property Law requires banks, insurance companies, utilities, and other businesses to turn dormant savings accounts, unclaimed insurance and stock dividends, and other inactive holdings over to the State. If there has been no activity in the account for a set period of time, usually between two and five years, the money or property is considered unclaimed or abandoned. Although Section 1402 of the Abandoned Property Law has a $20 threshold for such listing, the Comptroller uses a "$50 threshold” for the listings on his Internet website.

 How much money is being held in the Fund? There are 31 million unclaimed funds accounts statewide valued at $13 billion.

 Readers are able to search for and claim money held in the Abandoned Property Fund with the Comptroller’s user friendly online claiming system or by calling the toll-free call center at 1-800-221-9311 to speak with English or Spanish-speaking representatives from 8:00 a.m. through 4:30 p.m.

Comptroller DiNapoli and A.G. Schneiderman Announce Felony Guilty Plea of Former City of Rensselaer DPW Commissioner for Stealing Scrap Metal Proceeds

State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Thomas Capuano, the former Commissioner of the Department of Public Works of the city of Rensselaer Department of Public Works, for teaming with two DPW employees to divert $46,000 from the city by pocketing the cash from scrap metals acquired as part of their jobs with the city.

Comptroller DiNapoli & A.G. Schneiderman Announce Guilty Plea of Former Highway Superintendent in Public Corruption Case

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Roger Burlew, former Highway Superintendent for the Town of Erin, in a public corruption case involving the theft of more than $65,000 in goods and services from the town. Burlew entered a guilty plea before The Honorable James Hayden in Chemung County Court to the charge of Grand Larceny in the Second Degree, a Class C Felony. As part of a plea agreement, Burlew will be sentenced to six months of incarceration and a period of five years of probation. Burlew will also pay $65,000 in restitution to cover the cost of what was stolen.

U. S. Steel and DiNapoli Agree on Enhanced Disclosure of Corporate Political Contributions

New York State Comptroller Thomas P. DiNapoli announced that United States Steel Corporation has agreed to the New York State Common Retirement Fund’s request that it publicly report its corporate political spending. As a result of the agreement, the Fund withdrew a shareholder proposal it had filed for consideration at the Fortune 500 company’s annual meeting. The Fund holds approximately 907,577 shares of U. S. Steel with an estimated value of $20 million.

Some guidelines followed by courts in deciding appeals from adverse out-of-title employee grievances

Some guidelines followed by courts in deciding appeals from adverse out-of-title employee grievances

New York State Corr. Officers & Police Benevolent Assn., Inc. v Governor's Off. of Empl. Relations, 2015 NY Slip Op 02543, Appellate Division, Third Department

Civil Service Law §61(2) provides, in relevant part, that "no person shall be assigned to perform the duties of any position unless he [or she] has been duly appointed, promoted, transferred or reinstated to such position in accordance with [the statute] and the rules prescribed thereunder. An out-of-title work assignment exists when an employee has been assigned or compelled to perform the duties of a higher grade, without a concomitant increase in pay, frequently, recurrently and for long periods of time"

A Safety and Security Officer 2 (SSO2), a salary grade 15 position, was advised that he would assume the duties of the Chief Safety and Security Officer (CSSO), a salary grade 20 position, at the facility upon the incumbent CSSO’s transfer to another facility. SSO2 was also told that he would be serving as the "Acting Chief" at that facility, an unofficial job title is not formally recognized by the Department of Civil Service.

The SSO2, alleging that he had performed the duties ordinarily assigned to the CSSO, filed an out-of-title work grievance seeking additional compensation for the duties he performed in his capacity as the facility's CSSO. Ultimately, the grievance proceeded to Step 3 to be considered by the Governor’s Office of Employee Relations [GOER].

Based on the limited duties listed in SSO2’s grievance form, the Division of Classification and Compensation of the Department of Civil Service (C & C) recommended that GEOR deny the grievance based on its finding that the work SSO2 was performing, in the absence of the CSSO, “either fell within the duties of an SSO2 or were a reasonable and logical outgrowth of those duties.

GOER adopted C & C’s recommendation and SSO2 initiated a CPLR Article 78 proceeding seeking a court order annulling GOER's determination. Supreme Court dismissed SSO2’s application, which ruling was appealed to the Appellate Division.

The Appellate Division affirmed the lower court’s decision. Citing CSL §61(2) the court explained that “An employee is not necessarily performing out-of-title work by fulfilling some overlapping functions of an absent supervisor, if those functions are substantially similar to duties listed in the classification standard for the employee's title.” In determining if the prohibition against out-of-title work has been violated, courts look "at the similarities between the duties assigned and those customarily performed by the employee, the extent to which the employee exercised the full range of duties of the higher level position, and whether the duties actually performed could be characterized as a reasonable extension of the employee's in-title duties."

Confining its review of the list of tasks performed by SSO2 set forth in his grievance form and not considering the expanded list of duties recited in the SSO2's underlying petition and SSO2’s affidavit in support his claim, the Appellate Division said that it must decide this matter based on the record that was before GOER and C & C. Finding that such record provided a rational basis for GOER's determination and that GOER’s determination was not arbitrary or capricious, the Appellate Division dismissed SSO2’s appeal.

SSO2 also contended that C & C and GOER acted arbitrarily and irrationally by deciding his grievance differently than that of another Safety and Security Officer 2 who was assigned to serve as the Acting CSSO at a different facility. However, this other Safety and Security Officer 2 asserted on her grievance form that she performed many more of the CSSO duties and stated that she, among other things,” supervised all 28 employees of her safety department across all three shifts.”

Considering this enhanced information, said the court, the record substantiates GOER’s' assertions that the facts presented by those two individuals were different, rationally leading to different outcomes.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02543.htm

The employer may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence

The employer may reject the findings and recommendations of a hearing officer if its decision is supported by substantial evidence

2015 NY Slip Op 02474, Appellate Division, Second Department

The Fire District’s Board of Commissioners rejected the recommendation of a hearing officer and denied a firefighter’s application for benefits pursuant to General Municipal Law §207-a(2).

The Appellate Division sustained the Board’s decision, explaining that it was entitled to make a finding contrary to the hearing officer's recommendation as long as substantial evidence supported the determination. The court said that the Board was free to credit the expert of the Fire District over the firefighter's expert so long as testimony of the Fire District's expert was consistent and supported by the medical evidence.

Noting that judicial review of an administrative determination made after a hearing required by law is limited to whether the determination is supported by substantial evidence, the Appellate Division said that "Substantial evidence means more than a mere scintilla of evidence, and the test of whether substantial evidence exists in a record is one of rationality, taking into account all the evidence on both sides."

Further, said the court, "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]” and the courts may not weigh the evidence or reject the choice made by the administrative agency where “the evidence is conflicting and room for choice exists."

Finding that the Board's determination was supported by substantial evidence, the Appellate Division confirm the Board’s rejection of the firefighter’s application for GML §207-a(2) benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02474.htm

_______________________

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Disciplinary action based on alleged sexual misconduct

Disciplinary action based on alleged sexual misconduct

2015 NY Slip Op 02418, Appellate Division, First Department

A former teacher [FT] was served with disciplinary charges pursuant to Education Law §3020-a alleging that he “hugged and kissed another teacher at least once a week for two months, despite her continually communicating to him that she did not want him to do this.” This unwanted contact escalated in a later encounter. The arbitrator found FT guilty of sexual misconduct towards another teacher and FT was terminated from his employment.

FT then filed an Article 75 petition seeking to vacate the arbitration award. Supreme Court denied FT’s motion and granted FT’s employer’s cross-motion to dismiss FT's petition and confirmed the arbitration award. The Appellate Division unanimously affirmed the lower court’s ruling, noting that the teacher had told FT several times that she did not want to meet with him and wanted no further contact.

The court held that the hearing officer “reasonably found” that under these circumstances that FT’s asking to embrace the teacher, and telling her to keep things between themselves also constituted misconduct in violation of the [employer’s] sexual harassment policies.”

The Appellate Division ruled that in consideration of the “egregious nature” of FT’s misconduct and the hearing officer's conclusion that FT did not credibly display remorse or an appreciation for the seriousness of his actions, the penalty of termination was appropriate notwithstanding FT's twenty-year satisfactory employment history

In another case involving alleged sexual misconduct, Jane Doe v New York City Department of Education [DOE], 2015 NY Slip Op 02433, it was undisputed that a substitute teacher [ST] and ST’s infant student plaintiff [Plaintiff] had unlawful sexual intercourse at a motel after school hours. The court, however, dismissed Plaintiff’s vicarious liability claim against DOE because ST's alleged conduct was not in furtherance of school business and was outside the scope of his employment.

The court also dismissed Plaintiff’s negligent supervision claim, explaining that the misconduct occurred after school hours and off school premises and that Plaintiff “failed to present evidence sufficient to raise a triable issue of fact that school authorities had specific knowledge or notice of [ST’s] misconduct or that [ST's] misconduct could reasonably have been anticipated.” Although there was evidence that ST drove Plaintiff and others home from school in violation of a Chancellor regulation, this, said the court, was insufficient to raise an issue of fact as to whether DOE had actual or constructive notice of sexual misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02418.htm

The Doe decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02433.htm

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Any action to terminate a disability retirement allowance then being received by a NYC police officer must be approved by the NYC Police Pension Fund's Board of Trustees

Any action to terminate a disability retirement allowance then being received by a NYC police officer must be approved by the NYC Police Pension Fund's Board of Trustees

2015 NY Slip Op 02011, Appellate Division, First Department

A former New York City Police Department police officer on disability retirement [DR] was discovered performing construction work while claiming to be disabled. as the result of a lengthy NYPD investigation, including videotaped observations showing DR performing construction work on a daily basis without apparent difficulty.

Based on the NYPD reports, the Police Pension Fund's Board of Trustees remanded DR's disability application to the Medical Board for reconsideration. The Medical Board concluded that DR's condition had improved dramatically, and recommended disapproval of his disability application and the Board of Trustees voted to place DR on a list of candidates eligible to become police officers.*

Subsequently DR became medically disqualified for the position after he tested positive for cocaine.and the City's Law Department advised the Police Pension Fund that DR was no longer disabled and was no longer eligible for reinstatement to the position of police officer. The Fund's Board of Trustees, however, did not act on this information and the Fund's Director of Pension Payroll simply informed DR that his disability pension benefit would be suspended.

DR filed an Article 78 petition to annul the Director's suspension of DR’s accidental disability retirement [ADR] benefits, contending that the suspension of his disability was arbitrary and capricious. In the alternative, DR sought his reinstatement as a police officer. Supreme Court dismissed the petition in its entirety, finding that "the determination of the Medical Board that [DR] was no longer disabled was supported by ample evidence derived from physical examinations and contained in the medical records reviewed."

The Appellate Division explained that like Supreme Court, "[it] reject[ed] [DR's] challenge to the Medical Board's determination that [DR] is no longer disabled, since that determination is supported by ’some credible evidence’ and ‘was not arbitrary and capricious."

However, it reversed the Supreme Court’s dismissal of DR’s petition, finding that the "suspension" or revocation of DR's disability benefits by the Police Pension Fund was without statutory authority, because “it was not directed by the Board of Trustees," finding that "[t]he last determination issued by the Board in this matter was that[DR] was not disabled and should be returned to work as a police officer" took place prior to DR’s testing positive for cocaine, which made him ineligible to return to duty.

The City appealed the Appellate Divisions ruling that any action to terminate a disability retirement allowance then being received by a NYC police officer must be approved by the NYC Police Pension Fund's Board of Trustees to the Court of Appeals, which rejected the City’s argument that because DRr was no longer entitled to ADR benefits, ceasing to pay the benefits was a "purely ministerial act" and affirmed the Appellate Division’s order annulling the termination of DR's pension benefits**.

The Court of Appeals said that the "Appellate Division correctly held that the ADR benefits can be terminated only by the trustees of the Police Pension Fund, who have not taken the necessary action," explaining, in pertinent part:

However well justified a reduction or termination of benefits may be in this case, the Board of Trustees has to do it. There might be cases in which the impropriety of paying benefits is so obvious that Pension Fund employees can simply stop paying, without either advance approval or ratification from the board; this might be true, for example, if the statute said on its face, "No benefits shall be paid to any beneficiary who has a positive drug test." But the application of the confusing safeguards statute to this case is something the trustees must address. Of course the trustees should weigh the advice of the City's Law Department in deciding the question, but the decision is theirs, subject to appropriate judicial review.

On remand to the Board of Trustees the City moved to terminate DR's ADR benefits retroactively to July 2007, when his ADR benefit was suspended by the Police Pension Fund. 

There was a tie vote (6 in favor of termination of benefits and 6 against termination of benefits. The City took the position that the tie vote meant that the benefits had not been reinstated by the Board of Trustees and DR commenced another action seeking to compel the City to retroactively restore his ADR benefits.

Supreme Court denied the petition to the extent DR sought reinstatement of the ADR benefits but granted the petition to the extent DR sought reinstatement to the position of police officer. Both DR and the City appealed.

The Appellate Division said it agreed with the City that Supreme Court erred in granting that part of DR's petition seeking his reinstatement to the position of police officer as Supreme Court’s direction to reinstate DR to his position of police officer was inconsistent with Administrative Code §13-254, in that DR rendered himself unqualified by reason of a positive drug test for cocaine, a fact not known to the Trustees at the time they directed that petitioner's name be placed on the civil service list of persons eligible to be a police officer.

In contrast, the Appellate Division rejected the City's contention that the Police Pension Fund's July 2007 termination of DR's ADR benefits remains in effect until a majority of the Board of Trustees votes to reinstate his ADR benefits. Such position said the court is contrary to its prior decision and order that explicitly "restore[d] said benefits" and noted that the Court of Appeals affirmed that determination.

While the Appellate Division said that “like the Court of Appeals,” it found this case "very troubling" because DR's pension benefits should have been reduced or terminated once he tested positive for cocaine, the statute makes clear that any action under the statute must be taken by the Board of Trustees. 

The bottom line: As DR forfeited his right to be placed on the "preference list" for appointment to the position of police officer when he disqualified himself by testing positive for cocaine, the Board of Trustees must now make a determination with respect to DR's entitlement to ADR benefits. 

Here said the court, the Board has two options under the law:

1. Terminate DR’s ADR benefits; or

2. Reduce DR’s ADR benefits.

Absent Board action, DR is to receive ADR benefits retroactive to July 18, 2007, the date of the improper termination of benefits by the Police Pension Fund.The Appellate Division then remanded the matter to the Board of Trustees “for immediate action consistent with this decision and order.”

* New York City's Administrative Code (see §§ 13-202[a], [b]; 13-216[a], [b]; 13-254), provides that a disability pensioner found able to work could be required to return to City service.

** See 16 NY3d 561.

The Decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02011.htm

________________

Disability Benefits for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and similar statutes providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

________________

An employer’s failure to make an individualized assessment of a disabled applicant’s particular abilities to perform the duties of the position required constitutes unlawful discrimination

An employer’s failure to make an individualized assessment of a disabled applicant’s particular abilities to perform the duties of the position required constitutes unlawful discrimination

Brentwood Union Free School Dist. v Kirkland, 2015 NY Slip Op 02121, Appellate Division, Second Department

In an appeal challenging a determination by the Commissioner of the New York State Division of Human Rights, made after a hearing before an administrative law judge who found that the Brentwood Union Free School District, unlawfully discriminated against the complainant, the Appellate Division explained that the scope of judicial review under the Human Rights Law is extremely narrow and is confined to the consideration of whether the determination of the New York State Division of Human Rights is supported by substantial evidence* in the record. Further, said the court "Courts may not weigh the evidence or reject the Division's determination where the evidence is conflicting and room for choice exists."

Here there was substantial evidence in the record to support a conclusion that Brentwood unlawfully discriminated against the complainant by denying him employment based solely on his membership in a class of persons with the same condition, chronic obstructive pulmonary disease, instead of upon an individualized assessment of his particular abilities.

While Brentwood did offer some evidence at the hearing that the complainant's condition may have prevented him from performing the duties of the job in a reasonable manner, the decision points out that Brentwood did not have this information at the time it made its determination not to employ the complainant.

In any event, said the Appellate Division, “this evidence merely conflicted with other evidence in the record indicating that the complainant's disability did not render him incapable of performing the duties of the job in a reasonable manner" and “it is the function of the administrative agency, not the reviewing court, to weigh the evidence or assess the credibility of the witnesses.”

The Appellate Division confirmed the findings of the Division and its award of damages in the principal sums of $66,488 for back pay, and $5,000 in compensatory damages, with interest at the rate of 9% from June 14, 2012, for mental anguish and humiliation to the complainant.

* The Court said that substantial evidence "means such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact . . . . More than seeming or imaginary, it is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt"

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2015/2015_02121.htm

Recent appointments to Governor Cuomo’s administration

Recent appointments to Governor Cuomo’s administration

Source: Office of the Governor

On March 21, 2015 Governor Andrew M. Cuomo announced five appointments to his administration

Elizabeth De León Bhargava has been appointed Deputy Secretary for Labor. Ms. Bhargava previously served as First Deputy Chief of Staff for New York City Council Speaker Melissa Mark Viverito and, prior, as Deputy Commissioner for the Neighborhood Development Division of the New York City Department of Small Business Services, where she was responsible for the city's Business Improvement Districts, the largest network in the country investing more than $100 million in programs and services throughout NYC. Before working for the City, she was Associate Commissioner for the New York State Department of Labor and Assistant Deputy Counselor for the New York State Attorney General. Ms. Bhargava has a B.A. from Binghamton University and a J.D. from the State University of New York at Buffalo School of Law

Rose Rodriguez has been appointed Chief Diversity Officer. She has served the State in a variety of executive and management roles, most recently as Special Assistant to the Commissioner and Director of Workforce Development at the New York State Department of Labor, where she spearheaded several agency efforts linked to the Governor’s initiatives including the Buffalo Billion, The New NY Bridge, and the New NY Bronx Works partnership. Prior to joining the administration, she served as Vice President for Policy and Programs at the Committee for Hispanic Children and Family, Inc., as Senior Advisor and Director of Constituent Services for Senator Hillary Rodham Clinton, and at the US Department of Housing and Urban Development as Deputy Director in the Office of Community Planning and Development. She served in the cabinet of Governor Mario Cuomo as the Executive Director of the Office of Hispanic Affairs and Chairperson for the Governor’s Hispanic Advisory Board. Ms. Rodriguez has a B.S. from Fordham University and a J.D. from Fordham University School of Law

Jorge Montalvo has been appointed Deputy Secretary of State for Economic Opportunity where he will advise and support the Secretary of State in the management of the Department of State and will be responsible for assisting in formulating agency policy and implementing program plans related to the $60 million Community Service Block Grant, the Division of Consumer Protection and the Cemeteries Division, among other State programs. Mr. Montalvo will continue to serve as Director of the New York State Office for New Americans and will also continue to oversee the Regional Economic Development Councils Opportunity Agenda and the Empire State Fellows program. Mr. Montalvo previously served as Director of Strategic Policy Initiatives for the New York State Consumer Protection Board. Before joining the State, he served as Policy and Public Affairs Officer for the New York City Economic Development Corporation and Corporate Relations and Volunteerism coordinator for the NYC 2012 Olympic Bid Committee. Mr. Montalvo has a B.A. in chemistry from Dartmouth College.

Matthew Fernandez Konigsberg has been appointed Special Counsel to the Secretary for Ethics, Risk and Compliance at the Department of State. Mr. Konigsberg previously served as an associate at Foran Glennon focusing on first-party property coverage, subrogation recovery, casualty/liability defense matters, as well as other types of commercial litigation. Before joining Foran Glennon, he served as Assistant Corporation Counsel for the New York City Law Department, where he held a hybrid position as a pre-trial and trial attorney. He also served as pro bono Legal Counsel for the Rockland County Board of Advisors for ASPIRA of New York, Inc, a Hispanic non-profit organization working to foster educational excellence and civic responsibility among young Latinos. In this role, he counseled the Rockland County Board on diverse legal issues arising out of ASPIRA’s Rockland operations. He is also Deputy Regional President of the Hispanic National Bar Association - Region II, serving on its Judiciary Committee, and has served as Judiciary Co-Chair of the Puerto Rican Bar Association. Mr. Konigsberg has a B.A. from University of Wisconsin-Madison and a J.D. from Rutgers School of Law - Newark.

Angel Santana has been appointed the Governor’s Bronx Regional Representative. Mr. Santana previously served as Director of Community Affairs and, prior, Community Liason for State Senator Jose M. Serrano. He has a B.A. from Mount Saint Mary College and is currently pursuing an M.P.A. at Columbia University.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 21, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 21, 2014 Click on text highlighted in color  to access the full report Comptroller DiNapoli Releases Municipal Audits New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed audits of the: Village of Franklinville,     Town of Jefferson, City of Olean, and   Walworth-Seely Public Library. Leading the Way in Transparency As Sunshine Week comes to an end, we are proud that U.S. PIRG, a non-profit consumer group, has ranked New York one of 14 ‘leading states’ in providing online access to government spending, thanks to Comptroller DiNapoli's transparency website, Open Book New York. A testament to his commitment for continuous improvement to transparency, 2015 marks the first time New York has scored an ‘A-’. Read the full report online at: Following the Money 2015. DiNapoli: Former Riverside Village Clerk Pleads Guilty in $50,000 Theft Former Riverside clerk-treasurer Kristina Johnson will do jail time and pay $50,000 in restitution after admitting Friday to repeatedly pilfering village coffers to pay for white water rafting and dating through Match.com, State Comptroller Thomas P. DiNapoli announced Friday. DiNapoli: Former Treasurer Arrested in Tupper Lake Fire Department Theft Former Tupper Lake Volunteer Fire Department Treasurer Timothy J. Brown was arrested on grand larceny charges Monday after allegedly stealing up to $20,000 as he spiraled into credit card debt. DiNapoli: State Tax Collections Slightly Stronger Than Exepcted in February But Remain Volatile Tax collections of $4.9 billion in February were $21.6 million above the state’s latest estimates, according to the monthly cash report released Wednesday by New York State Comptroller Thomas P. DiNapoli. Through 11 months of the fiscal year, tax collections were $636.6 million higher than originally projected, and $19 million higher than the latest estimates.

Denial of tenure

Denial of tenure
2015 NY Slip Op 02193, Appellate Division, First Department

A member of a college faculty [Petitioner] filed an Article 75 action challenging an arbitration award that sustained the college’s decision to deny awarding Petitioner tenure. Supreme Court granted the college’s cross motion to confirm the arbitration award, which decision was unanimously affirmed by the Appellate Division.

The Appellate Division explained that an arbitrator's award will not be vacated "unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on his power."

Here, said the court, Petitioner has not carried her "heavy burden" in claiming that the arbitrator's decision upholding the college’s determination that tenure was not warranted based on the lack of scholarly publication was "totally irrational." The court noted that Petitioner's claim that the college did not provide adequate notice of any alleged deficiencies is unavailing, as the college's bylaws, as well as the relevant collective bargaining agreement, provided notice that “publication requirements were rigorous and progressive.”

Further, according to the decision, the college had sent Petitioner a “letter of concern” approximately five months before the tenure process, one year before her appeal, and fifteen months before the college president issued her final determination. This, said the court, “provided adequate notice” explaining that as stated by the arbitrator, the fact that Petitioner "may not have received notice prior to [receiving a letter of concern] was based on her own [earlier] misstatements as to her publications...."

In addition, the Appellate Division held that college president’s evaluation of the quality and quantity of Petitioner's publications was a proper exercise of academic judgment, citing Pauk v Board of Higher Educ. of City of N.Y., 62 AD2d 660, affirmed 48 NY2d 930.

Concerning another issue, the court said that the record “provides no basis for a finding that [the college] denied [Petitioner] tenure in retaliation for her harassment claim against a department chair.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02193.htm

Taxpayer identity theft

Taxpayer identity theft
Source: Internal Revenue Service

The United States Internal Revenue Service [IRS] stops and flags suspicious or duplicate federal tax returns that falsely represent your identity, such as your name or social security number. If the IRS suspects tax ID theft, the agency will send a 5071C letter to your home address. If you receive this letter, verify your identity at idverify.irs.gov or call the toll-free number listed in the letter. 

If you are a victim of state tax ID theft, contact your state's taxation department or comptroller's office about the next steps you need to take.