Reinstatement to his or her former position and salary grade after a disciplinary demotion constitutes all the relief to which an employee is entitled
Matter of Neeley v Town of Colonie, 2010 NY Slip Op 09606, Appellate Division, Third Department
William Neeley was appointed to the position of Public Works Operation Supervisor in 1998, while Thomas Romano was appointed to the position of Highway Maintenance Supervisor in 2005.
Both Neeley and Romano worked for the Town of Colonie Department of Public Works and both were suspended from their respective positions in July 2008 pending the resolution of certain disciplinary charges that had been filed against them.
Found guilty of misconduct, the penalty imposed on both Neeley and Romano was demotion in title and grade.
Neeley and Romano appealed to the Town's personnel officer and ultimately their respective demotions were rescinded and a new penalty - suspension without pay for 30 days - was imposed on each.
Although Neeley and Romano were reinstated to their titles, grades and salaries, they appealed contending that certain of their former duties had been curtailed and, therefore, they had been subject to a de facto demotion.
Supreme Court dismissed their Article 78 petition as moot and the Appellate Division affirmed the lower court’s action.
The Appellate Division said that as it was “undisputed” that both Neeley and Romano had been restored to their original titles, grades and salaries in compliance with the decision issued by the Town's personnel officer, they had received “all the relief to which they were entitled.”
Accordingly, said the court, Supreme Court’s dismissal of their petition as moot was correct.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09606.htm
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
January 04, 2011
A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school years
A school employee giving reasonable assurance of continued employment is ineligible for unemployment insurance benefits between school years
Matter of Sultana v New York City Dept. of Educ., 2010 NY Slip Op 09598, Appellate Division, Third Department
It is “black letter law” that "A professional employee of an educational institution is precluded from receiving unemployment insurance benefits during the time between two successive academic years where the claimant has received a reasonable assurance of continued employment"
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 4, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.
Chand Sultana, a per diem substitute teacher employed by the New York City Department of Education, worked a total of 138 days during the school year. At the end of the school year Sultana received a letter from the Department “assuring her of continued employment” during the upcoming school year. The letter indicated the amount of work available and that the economic terms and conditions of employment were to be substantially the same as in the school year then ending.
Sultana applied for unemployment insurance benefits for the intervening summer but Unemployment Insurance Appeal Board determined that she was ineligible to receive them because she had received a reasonable assurance of continued employment pursuant to Labor Law §590(10).
The Appellate Division rejected Sultana’s appeal challenging the Board’s determination.
The court explained that the record indicated that a Department of Education representative testified that Sultana would have as many opportunities to work during the succeeding school year as she had the prior year inasmuch as more schools were to be opened, resulting in greater demand for substitute teachers and there had been no reduction in the budget. Such testimony, together with the letter sent to Sultana by the Department, constituted substantial evidence supporting the Unemployment Insurance Board's determination.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09598.htm
Matter of Sultana v New York City Dept. of Educ., 2010 NY Slip Op 09598, Appellate Division, Third Department
It is “black letter law” that "A professional employee of an educational institution is precluded from receiving unemployment insurance benefits during the time between two successive academic years where the claimant has received a reasonable assurance of continued employment"
Appeal from a decision of the Unemployment Insurance Appeal Board, filed May 4, 2009, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.
Chand Sultana, a per diem substitute teacher employed by the New York City Department of Education, worked a total of 138 days during the school year. At the end of the school year Sultana received a letter from the Department “assuring her of continued employment” during the upcoming school year. The letter indicated the amount of work available and that the economic terms and conditions of employment were to be substantially the same as in the school year then ending.
Sultana applied for unemployment insurance benefits for the intervening summer but Unemployment Insurance Appeal Board determined that she was ineligible to receive them because she had received a reasonable assurance of continued employment pursuant to Labor Law §590(10).
The Appellate Division rejected Sultana’s appeal challenging the Board’s determination.
The court explained that the record indicated that a Department of Education representative testified that Sultana would have as many opportunities to work during the succeeding school year as she had the prior year inasmuch as more schools were to be opened, resulting in greater demand for substitute teachers and there had been no reduction in the budget. Such testimony, together with the letter sent to Sultana by the Department, constituted substantial evidence supporting the Unemployment Insurance Board's determination.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09598.htm
Health insurance for retirees
Health insurance for retirees
Erie County Retirees Assn. v County of Erie [PA], 220 F.3d 193 (3d Cir. 2000), Certiorari denied, 121 S.Ct. 1247
Many public employers provide health insurance to retired public employees. Some employers may have elected to provide a different type or level of health insurance coverage to retirees eligible for Medicare than it provides to retirees not eligible for Medicare. This, as the Erie County case demonstrates, could prove dangerous.
According to the ruling in Erie County Retirees, a public employer may be sued for alleged age discrimination within the meaning of the Age Discrimination in Employment Act if it modifies its health insurance plan to provide retirees who are 65 or older (and therefore eligible for Medicare) with less generous benefits than its retirees under age 65.*
The decision indicates that initially Erie classified employees and retirees into three main health insurance coverage groups:
1. Current employees;
2. Medicare-eligible retirees; and
3. Retirees not eligible for Medicare. Each group had separate but similar traditional indemnity health insurance coverage.
When the county subsequently initiated changes in carriers in response to increases in health insurance costs, the retirees age 65 or older were enrolled in a health insurance plan called the SecurityBlue Plan.
Claiming that SecurityBlue provided inferior coverage compared to other plans and to the traditional indemnity coverage previously available to age 65+ retirees, the Association sued. Its basic argument: the county’s action violated the ADEA by placing retired employee into SecurityBlue on the basis of their having attained age 65.
The County, on the other hand, argued that it based its decision to place Medicare-eligible retirees in SecurityBlue not because of their age but for three age-neutral factors: (1) active versus inactive employment status, (2) cost, and (3) availability of plans. Its theory: ADEA allows an employer to take any action otherwise prohibited ... where the differentiation is based on reasonable factors other than age.
The relevant provisions of the ADEA make it unlawful for an employer to:
1. Fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s age; [or]
2. Limit, segregate, or classify his employees in any way, which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee, because of such individual’s age.
The district court dismissed the Association’s petition, holding that while eligibility for Medicare is an age-based factor ... the ADEA clearly was not intended to apply to retirees....
The Circuit Court, however, disagreed and said the issue should go to trial to determine if the County violated the ADEA by treating age 65+ retirees less favorably than retirees under age 65 with respect to health insurance.
As to the applicability of ADEA to retirees, the Circuit Court observed that the ordinary meaning of the term employee benefit should be understood to encompass health coverage and other benefits, which a retired person receives from his or her former employer.
The court said that:
It is clear that the ADEA covers discrimination in a post-employment benefit where the facially discriminatory policy is instituted while an individual is still an active employee, even if the event occurred one day prior to his or her retirement. Thus, it was inconceivable to the Third Circuit that Congress intended to allow an individual to challenge the employer’s action that occurred while still an employee but bar such action if the policy were adopted two days later, one day after the date of retirement....
The court decided that Congress did not intended to expressly prohibit discrimination in employee benefits for active workers, yet allow employers to discriminatorily deny or limit post-employment benefits to former employees at or after their retirement, although they had earned those employee benefits through years of service with the employer.
Agreeing with the position taken by EEOC, the Third Circuit ruled that the ADEA applies even if the retirees’ benefits are structured discriminatorily after retirement. The court said that the age 65+ retirees are individuals who have been treated differently by their employer with respect to [their] compensation, terms, conditions, or privileges of employment.
The court said that the fact that the county’s action was the result neither of some malevolent motive nor due to some hostile age-based stereotypes was irrelevant.
Also of some significance is the Court’s rejection of the County’s argument that “... the underwriting criteria adopted by another of its carriers, Highmark Blue Cross/Blue Shield, disqualified Medicare-eligible retirees from enrollment ....” Why? Because, said the court, the Supreme Court has indicated that an employer cannot avoid responsibility for a facially discriminatory benefit plan simply because the discrimination arises from the criteria imposed by outside entities with whom the employer has contracted to participate in providing the benefit.
The court’s conclusion: the County has treated age 65+ retirees differently than other retirees with respect to their compensation, terms, conditions, or privileges of employment, because of ... age. Accordingly, such retirees were found to have established a claim of age discrimination under the ADEA, 29 USC 623(a)(1).
Presumably, the Association will prevail unless the county can prove that one of the ADEA’s safe harbors is found applicable -- i.e., there were some qualified, non-discriminatory reasons for its action.
What would satisfy this standard? The Circuit Court said that that the safe harbor provided [by the ADEA] is applicable if the County can meet the equal benefit or equal cost standard.
* The Association withdrew its claim alleging differences in benefits for retirees and active County employees violated the ADEA and proceeded only on its ADEA claim that the differences in benefits between the age 65 and older retirees and retirees under age 65 violate the ADEA.
Erie County Retirees Assn. v County of Erie [PA], 220 F.3d 193 (3d Cir. 2000), Certiorari denied, 121 S.Ct. 1247
Many public employers provide health insurance to retired public employees. Some employers may have elected to provide a different type or level of health insurance coverage to retirees eligible for Medicare than it provides to retirees not eligible for Medicare. This, as the Erie County case demonstrates, could prove dangerous.
According to the ruling in Erie County Retirees, a public employer may be sued for alleged age discrimination within the meaning of the Age Discrimination in Employment Act if it modifies its health insurance plan to provide retirees who are 65 or older (and therefore eligible for Medicare) with less generous benefits than its retirees under age 65.*
The decision indicates that initially Erie classified employees and retirees into three main health insurance coverage groups:
1. Current employees;
2. Medicare-eligible retirees; and
3. Retirees not eligible for Medicare. Each group had separate but similar traditional indemnity health insurance coverage.
When the county subsequently initiated changes in carriers in response to increases in health insurance costs, the retirees age 65 or older were enrolled in a health insurance plan called the SecurityBlue Plan.
Claiming that SecurityBlue provided inferior coverage compared to other plans and to the traditional indemnity coverage previously available to age 65+ retirees, the Association sued. Its basic argument: the county’s action violated the ADEA by placing retired employee into SecurityBlue on the basis of their having attained age 65.
The County, on the other hand, argued that it based its decision to place Medicare-eligible retirees in SecurityBlue not because of their age but for three age-neutral factors: (1) active versus inactive employment status, (2) cost, and (3) availability of plans. Its theory: ADEA allows an employer to take any action otherwise prohibited ... where the differentiation is based on reasonable factors other than age.
The relevant provisions of the ADEA make it unlawful for an employer to:
1. Fail or refuse to hire or to discharge any individual or otherwise discriminate against any individual with respect to his or her compensation, terms, conditions, or privileges of employment, because of such individual’s age; [or]
2. Limit, segregate, or classify his employees in any way, which would deprive or tend to deprive any individual of employment opportunities or otherwise adversely affect his or her status as an employee, because of such individual’s age.
The district court dismissed the Association’s petition, holding that while eligibility for Medicare is an age-based factor ... the ADEA clearly was not intended to apply to retirees....
The Circuit Court, however, disagreed and said the issue should go to trial to determine if the County violated the ADEA by treating age 65+ retirees less favorably than retirees under age 65 with respect to health insurance.
As to the applicability of ADEA to retirees, the Circuit Court observed that the ordinary meaning of the term employee benefit should be understood to encompass health coverage and other benefits, which a retired person receives from his or her former employer.
The court said that:
It is clear that the ADEA covers discrimination in a post-employment benefit where the facially discriminatory policy is instituted while an individual is still an active employee, even if the event occurred one day prior to his or her retirement. Thus, it was inconceivable to the Third Circuit that Congress intended to allow an individual to challenge the employer’s action that occurred while still an employee but bar such action if the policy were adopted two days later, one day after the date of retirement....
The court decided that Congress did not intended to expressly prohibit discrimination in employee benefits for active workers, yet allow employers to discriminatorily deny or limit post-employment benefits to former employees at or after their retirement, although they had earned those employee benefits through years of service with the employer.
Agreeing with the position taken by EEOC, the Third Circuit ruled that the ADEA applies even if the retirees’ benefits are structured discriminatorily after retirement. The court said that the age 65+ retirees are individuals who have been treated differently by their employer with respect to [their] compensation, terms, conditions, or privileges of employment.
The court said that the fact that the county’s action was the result neither of some malevolent motive nor due to some hostile age-based stereotypes was irrelevant.
Also of some significance is the Court’s rejection of the County’s argument that “... the underwriting criteria adopted by another of its carriers, Highmark Blue Cross/Blue Shield, disqualified Medicare-eligible retirees from enrollment ....” Why? Because, said the court, the Supreme Court has indicated that an employer cannot avoid responsibility for a facially discriminatory benefit plan simply because the discrimination arises from the criteria imposed by outside entities with whom the employer has contracted to participate in providing the benefit.
The court’s conclusion: the County has treated age 65+ retirees differently than other retirees with respect to their compensation, terms, conditions, or privileges of employment, because of ... age. Accordingly, such retirees were found to have established a claim of age discrimination under the ADEA, 29 USC 623(a)(1).
Presumably, the Association will prevail unless the county can prove that one of the ADEA’s safe harbors is found applicable -- i.e., there were some qualified, non-discriminatory reasons for its action.
What would satisfy this standard? The Circuit Court said that that the safe harbor provided [by the ADEA] is applicable if the County can meet the equal benefit or equal cost standard.
* The Association withdrew its claim alleging differences in benefits for retirees and active County employees violated the ADEA and proceeded only on its ADEA claim that the differences in benefits between the age 65 and older retirees and retirees under age 65 violate the ADEA.
Judicial review of a disciplinary action
Judicial review of a disciplinary action
Horgan v Safir, 273 AD2d 135; Motion for leave to appeal denied, 95 NY2d 765
A court’s review of an administrative decision following a hearing is significantly more limited than would be the case when a higher court considers an appeal from a trial court’s ruling. This limitation proved critical in the Appellate Division, First Department’s consideration of the Horgan case.
New York City police officer John Horgan was found guilty of using discourteous and disrespectful remarks concerning race following an administrative disciplinary hearing. The penalty imposed: forfeiture of 20 days of vacation. Horgan appealed the Police Commissioner’s determination.
The Appellate Division dismissed Horgan’s appeal. The court, however, specifically commented that it had to dismiss the appeal despite the fact that if the Commissioner’s determination was reviewed under the standards applicable to a trial court decision, it would have been disposed to annul it as against the weight of the credible evidence.
The Appellate Division said that courts have very limited review powers over administrative agency determinations. Accordingly, it said that it was constrained to confirm [the Commissioner’s] findings in the disciplinary hearing, citing Berenhaus v Ward, 70 NY2d 436.
Horgan v Safir, 273 AD2d 135; Motion for leave to appeal denied, 95 NY2d 765
A court’s review of an administrative decision following a hearing is significantly more limited than would be the case when a higher court considers an appeal from a trial court’s ruling. This limitation proved critical in the Appellate Division, First Department’s consideration of the Horgan case.
New York City police officer John Horgan was found guilty of using discourteous and disrespectful remarks concerning race following an administrative disciplinary hearing. The penalty imposed: forfeiture of 20 days of vacation. Horgan appealed the Police Commissioner’s determination.
The Appellate Division dismissed Horgan’s appeal. The court, however, specifically commented that it had to dismiss the appeal despite the fact that if the Commissioner’s determination was reviewed under the standards applicable to a trial court decision, it would have been disposed to annul it as against the weight of the credible evidence.
The Appellate Division said that courts have very limited review powers over administrative agency determinations. Accordingly, it said that it was constrained to confirm [the Commissioner’s] findings in the disciplinary hearing, citing Berenhaus v Ward, 70 NY2d 436.
January 03, 2011
Leading by example, Governor Andrew M. Cuomo will return five percent of his statutory compensation of $179,000 to the State
Leading by example, Governor Andrew M. Cuomo will return five percent of his statutory compensation of $179,000 to the State
Source: Office of the Governor
Governor Andrew M. Cuomo today announced that he will reduce his salary by five percent. The salary for the Governor, $179,000, is set by state law and has not changed since 1999. The Governor said that he will return to the State the amount his salary reduction.
In addition, Lt. Governor Robert J. Duffy and newly hired senior members of the Cuomo Administration who are filling existing positions in the Executive Chamber are also taking salary reductions and have agreed to take a pay cut of 5 percent from their predecessors' salaries. This includes the Governor's Secretary, Counsel, Director of State Operations, Counselor and the Chief of Staff.
Governor Cuomo also directed that the budget for the Executive Chamber be reduced by five percent.
"Change starts at the top and we will lead by example," Governor Cuomo said. "Families and business owners in every corner of the state have learned to do more with less in order to live within their means and government must do the same."
The Secretary to the Governor has initiated a review of all Executive Chamber expenses to determine where the reductions will be made.
Source: Office of the Governor
Governor Andrew M. Cuomo today announced that he will reduce his salary by five percent. The salary for the Governor, $179,000, is set by state law and has not changed since 1999. The Governor said that he will return to the State the amount his salary reduction.
In addition, Lt. Governor Robert J. Duffy and newly hired senior members of the Cuomo Administration who are filling existing positions in the Executive Chamber are also taking salary reductions and have agreed to take a pay cut of 5 percent from their predecessors' salaries. This includes the Governor's Secretary, Counsel, Director of State Operations, Counselor and the Chief of Staff.
Governor Cuomo also directed that the budget for the Executive Chamber be reduced by five percent.
"Change starts at the top and we will lead by example," Governor Cuomo said. "Families and business owners in every corner of the state have learned to do more with less in order to live within their means and government must do the same."
The Secretary to the Governor has initiated a review of all Executive Chamber expenses to determine where the reductions will be made.
Political tests for appointment to the public service in New York State
Political tests for appointment to the public service in New York State
NYPPL trivia – January 2011
Subdivision 1 of §107 of the Civil Service Law essentially prohibits “Recommendations based on political affiliations.” Subdivision 1, in pertinent part, provides that “No recommendation or question under the authority of [the Civil Service Law] shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within the scope of [the Civil Service Law] or the rules established thereunder, shall be in any manner affected or influenced by such opinions or affiliations.
Subdivision 2 of §107 prohibits “Inquiry concerning political affiliations.” Subdivision 2, in pertinent part, provides that “No person shall directly or indirectly ask, indicate or transmit orally or in writing the political affiliations of any employee in the civil service of the state or of any civil division thereof or of any person dependent upon or related to such an employee, as a test of fitness for holding office.”
However, in some instances an individual’s political affiliation determines his or her eligibility for appointment to a position in public service in New York State as a matter of law. Name one such position.
E-mail your answer to NYPPL at publications@nycap.rr.com with the word “Trivia - 2011” in the subject line on or before January 31, 2011. Only the first entry submitted by an individual will be considered. The correctness of the answer submitted by an individual shall be determined by solely by NYPPL.
The individual submitting the "first correct entry" will receive a free copy of the 2011 edition of The Discipline Book, [regular price $195] upon its publication later this year. In the event more than one correct entry is received, the “first correct entry” will be determined by NYPPL’s making a selection at random from among the “correct e-mails” received on or before January 31, 2011.
Your submission of an entry constitutes your agreement to above terms and conditions.
.
NYPPL trivia – January 2011
Subdivision 1 of §107 of the Civil Service Law essentially prohibits “Recommendations based on political affiliations.” Subdivision 1, in pertinent part, provides that “No recommendation or question under the authority of [the Civil Service Law] shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within the scope of [the Civil Service Law] or the rules established thereunder, shall be in any manner affected or influenced by such opinions or affiliations.
Subdivision 2 of §107 prohibits “Inquiry concerning political affiliations.” Subdivision 2, in pertinent part, provides that “No person shall directly or indirectly ask, indicate or transmit orally or in writing the political affiliations of any employee in the civil service of the state or of any civil division thereof or of any person dependent upon or related to such an employee, as a test of fitness for holding office.”
However, in some instances an individual’s political affiliation determines his or her eligibility for appointment to a position in public service in New York State as a matter of law. Name one such position.
E-mail your answer to NYPPL at publications@nycap.rr.com with the word “Trivia - 2011” in the subject line on or before January 31, 2011. Only the first entry submitted by an individual will be considered. The correctness of the answer submitted by an individual shall be determined by solely by NYPPL.
The individual submitting the "first correct entry" will receive a free copy of the 2011 edition of The Discipline Book, [regular price $195] upon its publication later this year. In the event more than one correct entry is received, the “first correct entry” will be determined by NYPPL’s making a selection at random from among the “correct e-mails” received on or before January 31, 2011.
Your submission of an entry constitutes your agreement to above terms and conditions.
.
Failure to satisfy all the procedural mandates when filing an appeal with the Commissioner of Education is a fatal defect
Failure to satisfy all the procedural mandates when filing an appeal with the Commissioner of Education is a fatal defect
Appeal of Greg Johnston v the Board of Education of the Manhasset Union Free School District, Decisions of the Commissioner of Education, Decision No. 16,184
Greg Johnston alleged that Assistant to the Superintendent William Shine threatened physical violence against him during a meeting of the School Board and asked School Superintendent Charles Cardillo to take disciplinary action against Shine. When Cardillo advised Johnston that no disciplinary action would be taken against Shine, Johnston appealed to the Commissioner.*
The Commissioner dismissed Johnston’s appeal for a number of technical reasons, including Johnston's failure "to join necessary parties” – i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.
Here, said the Commissioner, both Cardillo and Shine would clearly be affected if should the relief sought by Johnston be granted. However, there was nothing in the record to indicate that either Cardillo or Shine had been served with a copy of the notice of petition and petition filed by Johnston.
Further, said the Commissioner, Cardillo was not named in the caption of the petition or in the notice of petition. Accordingly, the Commissioner ruled that Johnston’s claims against both Cardillo and Shine must be dismissed.
Similarly, Johnston’s petition seeking Shine’s removal was also dismissed because the notice of Johnston's petition was defective.
Clearly any one of these omissions standing alone would consitute a fatal defect if it could not be timely cured.
In any event, the Commissioner said that even had Johnston been properly filed and served on the necessary parties, it would have been dismissed as it “fails to state a claim upon which relief may be granted.”
Although Johnston cited Education Law §2217 as the legal basis for his challenge to Cardillo’s failure to discipline Shine, the Commissioner pointed out that “such reliance is misplaced,” as that provision pertains only to official acts of a district superintendent of schools rather than a superintendent of a school district [emphasis supplied].
Further, Education Law §306 authorizes the Commissioner to remove a trustee, a member of a board of education, a clerk, a collector, a treasurer, a district superintendent, a superintendent of schools or other school officers. An assistant to the superintendent is a district employee and not a school officer subject to removal by the Commissioner pursuant to §306 of the Education Law.
As to Johnston’s asking the Commissioner to initiate disciplinary action against Shine, the Commissioner lacks authority to do so as it is the board of education, rather than the Commissioner of Education, in which the authority to take disciplinary action against a school district employee is vested.
* The decision to discipline an employee of a school district is a matter involving the exercise of discretion by the appointing authority. Two decisions by the Commissioner of Education, Gaul, Decisions of the Commissioner #14432 and Matter of Middleton, Decisions of the Commissioner #14431, address challenges to the exercise of discretion with respect to filing disciplinary charges against an employee of a school district or BOCES.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16184.htm
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Appeal of Greg Johnston v the Board of Education of the Manhasset Union Free School District, Decisions of the Commissioner of Education, Decision No. 16,184
Greg Johnston alleged that Assistant to the Superintendent William Shine threatened physical violence against him during a meeting of the School Board and asked School Superintendent Charles Cardillo to take disciplinary action against Shine. When Cardillo advised Johnston that no disciplinary action would be taken against Shine, Johnston appealed to the Commissioner.*
The Commissioner dismissed Johnston’s appeal for a number of technical reasons, including Johnston's failure "to join necessary parties” – i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.
Here, said the Commissioner, both Cardillo and Shine would clearly be affected if should the relief sought by Johnston be granted. However, there was nothing in the record to indicate that either Cardillo or Shine had been served with a copy of the notice of petition and petition filed by Johnston.
Further, said the Commissioner, Cardillo was not named in the caption of the petition or in the notice of petition. Accordingly, the Commissioner ruled that Johnston’s claims against both Cardillo and Shine must be dismissed.
Similarly, Johnston’s petition seeking Shine’s removal was also dismissed because the notice of Johnston's petition was defective.
Clearly any one of these omissions standing alone would consitute a fatal defect if it could not be timely cured.
In any event, the Commissioner said that even had Johnston been properly filed and served on the necessary parties, it would have been dismissed as it “fails to state a claim upon which relief may be granted.”
Although Johnston cited Education Law §2217 as the legal basis for his challenge to Cardillo’s failure to discipline Shine, the Commissioner pointed out that “such reliance is misplaced,” as that provision pertains only to official acts of a district superintendent of schools rather than a superintendent of a school district [emphasis supplied].
Further, Education Law §306 authorizes the Commissioner to remove a trustee, a member of a board of education, a clerk, a collector, a treasurer, a district superintendent, a superintendent of schools or other school officers. An assistant to the superintendent is a district employee and not a school officer subject to removal by the Commissioner pursuant to §306 of the Education Law.
As to Johnston’s asking the Commissioner to initiate disciplinary action against Shine, the Commissioner lacks authority to do so as it is the board of education, rather than the Commissioner of Education, in which the authority to take disciplinary action against a school district employee is vested.
* The decision to discipline an employee of a school district is a matter involving the exercise of discretion by the appointing authority. Two decisions by the Commissioner of Education, Gaul, Decisions of the Commissioner #14432 and Matter of Middleton, Decisions of the Commissioner #14431, address challenges to the exercise of discretion with respect to filing disciplinary charges against an employee of a school district or BOCES.
The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16184.htm
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State government policy makers not covered by Age Discrimination in Employment Act [ADEA]
State government policy makers not covered by Age Discrimination in Employment Act [ADEA]
Source: Findlaw.Com Weekly Labor & Employment Law Newsletter, December 27-31, 2010
Opp v. Office of the State's Attorney of Cook County, No. 09-3714 - United States Seventh Circuit, 12/29/2010
”In former assistant state's attorneys' suit against the county state's attorney, claiming unlawful employment termination in violation of the Age Discrimination in Employment Act (ADEA), district court's grant of defendants' motions to dismiss in ruling that the plaintiffs were excluded from the ADEA's coverage because they held policymaking positions as a matter of law, is affirmed where:
1) district court's determination as a matter of law of the policymaking status of the plaintiffs' positions was proper because the plaintiffs' positions as assistant state's attorneys gave them inherent policymaking authority, and the plaintiffs' roles as assistant state attorneys were clearly defined by statute; and
2) plaintiffs' argument that they were not appointed by the state's attorney and thus cannot be considered "appointees" on the policymaking level is without merit."
Click here to Read more...”
Source: Findlaw.Com Weekly Labor & Employment Law Newsletter, December 27-31, 2010
Opp v. Office of the State's Attorney of Cook County, No. 09-3714 - United States Seventh Circuit, 12/29/2010
”In former assistant state's attorneys' suit against the county state's attorney, claiming unlawful employment termination in violation of the Age Discrimination in Employment Act (ADEA), district court's grant of defendants' motions to dismiss in ruling that the plaintiffs were excluded from the ADEA's coverage because they held policymaking positions as a matter of law, is affirmed where:
1) district court's determination as a matter of law of the policymaking status of the plaintiffs' positions was proper because the plaintiffs' positions as assistant state's attorneys gave them inherent policymaking authority, and the plaintiffs' roles as assistant state attorneys were clearly defined by statute; and
2) plaintiffs' argument that they were not appointed by the state's attorney and thus cannot be considered "appointees" on the policymaking level is without merit."
Click here to Read more...”
Evaluating the credibility of a witness in a disciplinary action
Evaluating the credibility of a witness in a disciplinary action
Jackson v McMahon, 275 AD2d 546
The Appellate Division upheld the disciplinary determinations and penalties imposed by the Commissioner of State Police on four troopers who were found guilty of misconduct and neglect of duty after being found sleeping in their patrol cars while on duty at about 3:30 in the morning.
The troopers had stopped the two patrol cars in which they were riding to set up radar surveillance during the early morning and were found asleep during a random check by their supervisor. The Disciplinary Board found them guilty of charges of misconduct and neglect of duty and recommended penalties ranging from suspension without pay for ten days and censure to suspension for twenty days and censure for this misconduct. The Superintendent adopted the Board’s findings and recommendations.
The troopers appealed their being found guilty of the charges and the penalties imposed, alleging that Disciplinary Board’s determinations were not supported by substantial evidence.
The Appellate Division rejected their claims, holding that its review of the record indicated that the supervisor gave detailed testimony concerning his observations of troopers that indicated that the four were asleep while performing his supervisory check.
True, said the court, the troopers denied that they were sleeping when approached by the supervisor. True, said the court, the troopers submitted testimony casting doubt on the accuracy of the supervisor’s observations. This, however, presented a question of credibility, which the Board was free to resolve against troopers and the court declined to substitute its judgment for that of the Board and the Superintendent.
The Appellate Division said that the test applied [i]n assessing whether an administrative decision is supported by substantial evidence is whether the finding is supported by the type of evidence that a reasonable mind might accept as adequate to support the conclusion reached, citing Doolittle v McMahon, 245 AD2d 736. Under these standards, the court said that it could not say that the supervisor’s testimony did not support the findings of guilt and declined to disturb the Board’s determinations.
As to the penalties imposed, the court said that much deference is to be afforded to an agency’s determination regarding a sanction, especially in situations where, as here, matters of internal discipline in a law enforcement organization are concerned, quoting from Santos v Chesworth, 133 AD2d 1001. Considering the particular circumstances presented in this case, the court said that it did not find the penalties imposed upon troopers so disproportionate to the offense as to shock one’s sense of fairness.
Jackson v McMahon, 275 AD2d 546
The Appellate Division upheld the disciplinary determinations and penalties imposed by the Commissioner of State Police on four troopers who were found guilty of misconduct and neglect of duty after being found sleeping in their patrol cars while on duty at about 3:30 in the morning.
The troopers had stopped the two patrol cars in which they were riding to set up radar surveillance during the early morning and were found asleep during a random check by their supervisor. The Disciplinary Board found them guilty of charges of misconduct and neglect of duty and recommended penalties ranging from suspension without pay for ten days and censure to suspension for twenty days and censure for this misconduct. The Superintendent adopted the Board’s findings and recommendations.
The troopers appealed their being found guilty of the charges and the penalties imposed, alleging that Disciplinary Board’s determinations were not supported by substantial evidence.
The Appellate Division rejected their claims, holding that its review of the record indicated that the supervisor gave detailed testimony concerning his observations of troopers that indicated that the four were asleep while performing his supervisory check.
True, said the court, the troopers denied that they were sleeping when approached by the supervisor. True, said the court, the troopers submitted testimony casting doubt on the accuracy of the supervisor’s observations. This, however, presented a question of credibility, which the Board was free to resolve against troopers and the court declined to substitute its judgment for that of the Board and the Superintendent.
The Appellate Division said that the test applied [i]n assessing whether an administrative decision is supported by substantial evidence is whether the finding is supported by the type of evidence that a reasonable mind might accept as adequate to support the conclusion reached, citing Doolittle v McMahon, 245 AD2d 736. Under these standards, the court said that it could not say that the supervisor’s testimony did not support the findings of guilt and declined to disturb the Board’s determinations.
As to the penalties imposed, the court said that much deference is to be afforded to an agency’s determination regarding a sanction, especially in situations where, as here, matters of internal discipline in a law enforcement organization are concerned, quoting from Santos v Chesworth, 133 AD2d 1001. Considering the particular circumstances presented in this case, the court said that it did not find the penalties imposed upon troopers so disproportionate to the offense as to shock one’s sense of fairness.
Decertification of a union sought by dissatisfied unit member
Decertification of a union sought by dissatisfied unit member
Matter of Seneca Fall Support Staff Association, 33 PERB 3028.
A number of unit members dissatisfied with the representation provided by the existing collective bargaining agent, CSEA, formed the Seneca Falls Support Staff Organization [SFSSO].
SFSSO ultimately filed a petition seeking (1) decertification of CSEA as the collective bargaining agent for the support staff and (2) certification as the collective bargaining agent for support staff then represented by CSEA.
Finding that the CFC was acting independently and not as a shell organization for another union seeking representation rights as CSEA contended, PERB affirmed the ruling by its administrative law judge that a representation election be scheduled.
Matter of Seneca Fall Support Staff Association, 33 PERB 3028.
A number of unit members dissatisfied with the representation provided by the existing collective bargaining agent, CSEA, formed the Seneca Falls Support Staff Organization [SFSSO].
SFSSO ultimately filed a petition seeking (1) decertification of CSEA as the collective bargaining agent for the support staff and (2) certification as the collective bargaining agent for support staff then represented by CSEA.
Finding that the CFC was acting independently and not as a shell organization for another union seeking representation rights as CSEA contended, PERB affirmed the ruling by its administrative law judge that a representation election be scheduled.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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