Governor Cuomo proposes legislation providing for a statewide, objective teacher evaluation system, based on both performance and seniority

Governor Cuomo proposes legislation providing for a statewide, objective teacher evaluation system, based on both performance and seniority
Source: Office of the Governor

On March 2, 2011, Governor Andrew M. Cuomo announced that he will be submitting a program bill that would expedite and expand ongoing plans to implement a statewide, objective teacher evaluation system, based on both performance and seniority, for school districts to use when making employment decisions.

The Governor noted that both the State Senate and the State Assembly have acknowledged that the New York State must move forward on improving performance in the classroom as well as improving teacher evaluations. The real question, said the Governor, is what is the alternative to "last in, first out," the current statutory standard used in layoff situations involving personnel in both the classified service and the unclassified service.

The Governor said that the current so-called "last in, first out" policy “lacks objectivity by maintaining teachers simply based on years of service without factoring in classroom effectiveness, performance, or need.”

"It is time to move beyond the so-called 'last in, first out' system of relying exclusively on seniority," Governor Cuomo said. "However, we need a legitimate evaluation system to rely upon. This will help make a statewide evaluation system ready and allow us to replace 'last in, first out.'"

According to the Governor, his proposed program bill would "accelerate the new standards to cover all grades and subjects for the 2011-2012 school year." In addition, the Governor said that his bill would set clear standards and enhanced transparency requirements, including the posting of guidelines on all school districts' Web sites. Parameters of the new teacher evaluation system include a new rating system including "highly effective," "effective," "developing," or "ineffective."

The Governor’s announcement also states that the evaluations will also play a significant role in a wide array of employment decisions, including professional development, tenure determinations, selection for leadership opportunities, and termination. Teachers and principals with a pattern of ineffective teaching or performance could be charged with incompetence and considered for termination through an expedited hearing process.

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Unfunded Mandate Relief [revised summary]

Unfunded Mandate Relief [revised summary]
Sources: NYSBA Municipal Law Section, Special Committee on Mandate Relief; Office of the Governor

On February 28, 2011 the New York State Bar Association’s Municipal Law Section’s Special Committee on Mandate Relief sent its comments* concerning the need for relief of certain mandates imposed on political subdivisions of the State, i.e., counties, cities, towns, villages and school districts, to the Governor’s Office.

The Governor’s Office reports that on March 2, 2011 Governor Cuomo accepted a preliminary report issued by the Mandate Relief Redesign Team** on ways to curb the proliferation of unfunded and underfunded mandates.

The Special Committee said that:

“Municipal officials have long been managing mandates handed down by the state government, whether the mandate is funded, under-funded or unfunded.1 As there is no uniformly accepted definition of what constitutes an “unfunded mandate,” there is no recognized, comprehensive inventory of the unfunded mandates that are placed on municipalities. Nevertheless, there are a number of laws and regulations that are universally recognized as such due to their prevalence and associated costs on municipal affairs.

“Some require that certain services or programs be offered to the public by the municipality for the benefit of the public at large. Others establish procedural or administrative parameters within which a municipality must operate, but do not provide any identifiable benefit to the municipality or the public at large. Often, this latter mandate category is designed to promote a legislatively determined public policy of the state, benefiting a narrow class of individuals, at the cost of the municipality. It is from this latter category of mandate that the need for fiscal relief is greatest”.

Noting that its comments “are not intended to question the validity or wisdom of the various public policies underlying mandates; rather, these comments are intended to identify those mandates that have the greatest impact on municipal expenses and to highlight the inequity of having municipalities bear the financial burden of carrying out these policies.”

The Special Committee addressed the following issues:

Disability Benefits for Law Enforcement and Firefighters (GML §§ 207-c; 207-a)

Public Pensions

Wicks Law (Gen. Mun. Law 101)

Prevailing Wage (Labor Law § 220)

Triborough Amendment to the Taylor Law [Civil Service Law § 209-a.1(e)]


The Mandate Relief Redesign Team details findings in three key areas.

First, its report addresses reform and redesign the current system to stop the proliferation of unfunded mandates by:

1. Prohibiting New Unfunded Mandates: Permanently fix the problem of unfunded mandates by advancing a state law and eventual constitutional amendment prohibiting any new state mandate (with very limited exceptions) on local governments or school districts unless the state fully funds the mandate or the local entity votes to comply with the mandate;

2. Requiring Independent Cost Analysis of Mandates: Strengthen the currently ineffective fiscal impact statement process by requiring legislative fiscal committees to determine the need for and prepare such statements. This would involve codifying Executive Order 17's fiscal impact statement methodology and local government consultation requirements and making the reports available to the public; and

3. Enforcing Limits on Unfunded Mandates: Using existing resources, establish an Office of Mandate Reform to act as a clearinghouse that will work with local governments and state agencies to address unfunded mandates.

Second, its report addresses cost-drivers to provide meaningful mandate relief by:

1. Creating a Pension Tier 6: A new Tier will help municipalities and school districts address rapidly escalating pension costs; and

2. Avoiding the Wicks Requirement by Removing Barriers to Project Labor Agreements: In order to reduce the costs that localities and schools face due to Wicks, ease the burdens associated with project labor agreements (PLA) by eliminating the study requirement and developing regionally-negotiated PLA templates that together can reduce the costs of public works projects by 15 percent or more.

Third, its report addresses the current unsustainable burden of state mandates by:

1. Giving Local Governments Greater Flexibility to Administer Existing Mandates: The State Administrative Procedure Act (“SAPA”) §204-a should be streamlined and expanded to allow localities to propose alternatives to current regulations and to request waivers of regulations; and

2. Conducting a Comprehensive Review of All State Mandates: Conduct a full agency review and accounting of state and regulatory mandates that burden school districts and local governments.

* A complimentary copy of the Special Committee’s report is available from NYPPL. E-mail your request to publications@nycap.rr.com

** The Mandate Relief Redesign Team report is posted at: http://governor.ny.gov/assets/documents/finalmandate.pdf .
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Hearing officer recommends termination of Emergency Medical Technician who made a false report after responding to a 911 call

Hearing officer recommends termination of Emergency Medical Technician who made a false report after responding to a 911 call
NYC Fire Department v Prosper, OATH Index #192/11

OATH Administrative Law Judge John Spooner found that an emergency medical technician failed to follow protocol and made false reports when he responded to a 911 call from an elderly man who reported difficulty breathing.

The EMT and his partner arrived at the patient's apartment and argued with the patient about which hospital to go to. The patient, however, refused treatment and the EMTs returned to the ambulance.

Rather than calling a supervisor for help, as required, the EMTs reported “10-90” or unfounded, to the dispatcher.

Believing that there had been no contact with the patient, the dispatcher sent firefighters to gain entry to the apartment. In the meantime, the patient came downstairs and told the EMTs that he was taking a bus to the hospital. The EMT gave firefighters no information about the patient and they entered the empty apartment by breaking the door lock

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2885.pdf

Employer held liable under the Uniformed Services Employment and Reemployment Rights Act for adverse action taken against an individual by supervisor

Employer held liable under the Uniformed Services Employment and Reemployment Rights Act for adverse action taken against an individual by supervisor
Vincent E. Staub, Petitioner v. Proctor Hospital , USSC, No. 09-400, [March 1, 2011]

While employed by Proctor Hospital, Vincent Staub served as a member of the United States Army Reserve. As such, he was required to attend drills one weekend per month and to train full time for two to three weeks a year.

Both Janice Mulally, Staub's immediate supervisor, and Michael Korenchuk, Mulally's supervisor, were hostile to Staub's military obligations. Mulally scheduled Staub for additional shifts without notice so that he would " 'pa[y] back the department for everyone else having to bend over backwards to cover [his] schedule for the Reserves.’"

Mulally also informed Staub's co-worker, Leslie Sweborg, that Staub's "military duty had been a strain on th[e] department," and asked Sweborg to help her "get rid of him". Korenchuk referred to Staub's military obligations as "a b[u]nch of smoking and joking and [a] waste of taxpayers['] money”' "He was also aware that Mulally was "out to get" Staub.

The Supreme Court held that “if a supervisor performs an act motivated by antimilitary animus that is intended by the supervisor to cause an adverse employment action, and if that act is a proximate cause of the ultimate [adverse] employment action, then the employer is liable under USERRA [Uniformed Services Employment and Reemployment Rights Act of 1994].”
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