Application seeking the removal of a school official must give the official notice of the application being filed

Application seeking the removal of a school official must give the official notice of the application being filed

Application of Donald B. Oglesby regarding an election, and application for the removal of Superintendent Lisa Wiles, board members Karin Osterhoudt and Phillip Mattracion, and teachers Denise Moore, James Pidel and Ann Beukelman, Commissioner of Education Decision #16,311

The Commissioner viewed Donald B. Oglesby’s applications as challenging an election to select members of the school board and to remove the school superintendent and certain board members and teachers from their respective positions.

As to the application for removal of the school officials and teachers, the Commissioner said that it must be denied because the notice of petition is defective.  

Commissioner’s regulations require that the notice accompanying a removal application specifically advise a school officer that an application is being made for his or her removal from office (8 NYCRR §277.1[b]).  In this case, Oglesby failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.  

The Commissioner explained that “A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.”

Further, the Commissioner rejected Oglesby’s application to remove certain teachers from their positions, indicating that tenured teachers are school district employees, not school officers, and are thus not subject to removal under Education Law §306.

Other technical and substantive issues addressed by the Commissioner in considering Oglesby’s application included:

Verification of the application: §275.5 of the Commissioner’s regulations requires that all pleadings in an appeal to the Commissioner be verified; Oglesby’s reply was not verified in violation of §275.5 and not considered by the Commissioner.

The Commissioner declining to consider material submitted in unsworn documents from Oglesby, noting that additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner.

The failure of Oglesby to serve the named individuals in his application with copies of tape recordings or video tapes that were “were alleged to be attached as exhibits to the petition” as otherwise required by §275.8(a) of the Commissioner’s regulations -- a “copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers . . . shall be personally served upon each named respondent . . . .” 

As to newspaper articles submitted by Oglesby, the Commissioner said that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein.”

The Commissioner rejected school districts claim that certain of the act complained of were untimely. The Commissioner held that it would be “unreasonable and detrimental to the efficient resolution of a petitioner’s claims to require that petitioner institute separate appeals with respect to acts comprising a series of events closely related to the election” complaint. In such circumstances, even though the appeal involves acts occurring more than 30 days from the date the appeal is commenced, I have declined to dismiss the appeal as untimely provided the appeal is commenced within 30 days of the election [citations omitted].

Finally, the Commissioner said that to the extent that Oglesby raised claims that do not arise under the Education Law, such as defamation and slander, he lacked lack jurisdiction over such claims.

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

http://www.counsel.nysed.gov/Decisions/volume51/d16311.html

Pre-existent non-work-related condition not an absolute bar to eligibility for General Municipal Law §207-c disability benefits

Pre-existent non-work-related condition not an absolute bar to eligibility for General Municipal Law §207-c disability benefits
Matter of Brunner v Bertoni, 2012 NY Slip Op 00167, Appellate Division, Third Department

A police officer sustained serious injuries in an off-duty motorcycle accident. Upon his return to work with the Village of Endicott Police Department, he undertook mandatory firearms training that involved repeatedly firing his sidearm with his left hand. He could not complete the training due to pain in his left thumb and, as a result, stopped working for eight months until learning how to shoot his weapon with his right hand.

The police officer had applied for benefits pursuant to General Municipal Law §207-c. His application was ultimately denied by the Mayor and the officer filed an Article 78 petition seeking a court order directing the Village to provide him with §207-c benefits.

The Appellate Division sustained the Supreme Court’s dismissal of the petition explaining that although "[p]reexisting non-work-related conditions [would] not bar recovery . . . [if the police officer’s] job duties were a direct cause of the disability," substantial evidence in the record amply supported the Mayor’s finding that “they were not a direct cause” in this instance.

General Municipal Law §207-c provides eligible law enforcement personnel with benefits, including full wages, in the event they are injured in the performance of their duties. Such individuals, however, must "prove a direct causal relationship between job duties and the resulting illness or injury" in order to be entitled to such benefits.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00167.htm

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General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Redesigned New York State’s organization chart proposes to consolidate the Department of Civil Service and the Governor’s Office of Employee Relations into a single unit

Source: Office of the Governor

In his 2012-2013 Executive Budget and Reform Plan, Governor Cuomo stated that in  2011-12 the State started the process of merging and consolidating State agencies to achieve efficiencies and reduce redundancies.

The Governor indicated that “This process continues ... with consolidations, ... resulting in better, streamlined services." 

Among the proposed mergers set out in the 2012-2013 proposed budget: merging the Department of Civil Service and the Governor’s Office of Employee Relations "to provide the State with a single entity responsible for a strategic approach to workforce management, including recruiting, training, promoting, and developing a best in class workforce for the people.”

The Governor's 2012-2013 Executive Budget and Reform Plan is posted on the Internet at:

http://publications.budget.ny.gov/eBudget1213/fy1213littlebook/BriefingBook.pdf

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Civil Service Commission’s decision concerning the fitness of a candidate for appointment final unless found irrational or arbitrary

Rogan v Nassau County Civ. Serv. Commn, 2012 NY Slip Op 00217, Appellate Division, Second Department

A candidate in Nassau County”s Police Officer Examination No. 7000 failed to attain a passing score on the physical fitness screening test.

The candidate sue, contending that the Commission acted irrationally or arbitrarily and capriciously in relying upon a proctor's assessment that the candidate failed to complete the number of sit-ups required to pass the physical fitness screening test promulgated by the State’s Municipal Police Training Council.

Supreme Court denied his petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division, noting that “An appointing authority* has wide discretion in determining the fitness of candidates,” explained that such discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

A court, said the Appellate Division, “may not substitute its judgment for that of the agency responsible for making the determination and, as long as the administrative determination is not irrational or arbitrary and capricious, [it] may not annul it.”

* Although this decision may give the reader the impression that the Commission was the appointing authority with respect to police officers, a Civil Service Commission is the agency responsible for determining the eligibility of candidates seeking appointment to positions in the competitive class of the classified service by examination and then certifying those found eligible and qualified to the appointing authority for selection for appointment to the position. [People v Gaffney, 201 NY 535]

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00217.htm

Will the next NYSERS retirement tier be based on defined contributions?

Will the next NYSERS retirement tier be based on defined contributions?

A NYPPL comment*

It is expected that there will be yet another “membership tier” grafted onto the New York State Employees’ Retirement System [ERS] and possibly the New York State Teachers’ Retirement System [TRS]. The question to be resolved is whether the next “Tier” will be a modification of the existing model – i.e., a defined benefit plan -- or whether the legislation will go in a new direction and provide that this new tier will be a Defined Contribution Plan [DCP].

The key elements of a viable DCP plan would provide that:

1. All new members would join a DCP;

2. Employer and employee contributions would be negotiated through collective bargaining;

3. Employees would “vest” immediately;

4. Current members of a public retirement system would be permitted to elect to become members of the appropriate DCP; and

5. ERS and TRS, respectively, would administer their DCP plans by essentially expand the existing “employee contribution” operations of the Systems, with, perhaps, a variable annuity option made available to interested members.

Since 1965 the State University’s Optional Retirement Plan, a retirement plan based on defined contributions rather than defined benefits, has been available to certain employees of the State University of New York, the Statutory Contract Colleges at Cornell and Alfred Universities, and the community colleges.** Further, since 1968 the City University of the City of New York has offered certain of its employees the opportunity to elect to participate in an optional DCP retirement program as well.***

The model for such legislation may well be the State University’s DCP, which is set out in Education Law §390, et seq. The State Education Department Optional Retirement Program is set out in §180 of the Education Law.

* GOVERNOR CUOMO'S 2012-13 EXECUTIVE BUDGET, presented on January 17, 2012, included the following proposal:

Enact pension reform: Next to Medicaid, pension costs are the most significant burden on local governments. The Governor called for a new tier in the State pension system that will save the State and local governments outside of New York City $83 billion and New York City $30 billion over the next 30 years. The new pension plan would have progressive contribution rates between 4% and 6% with shared risk/reward for employees and employers to account for market volatility. It includes a voluntary option for Defined Contribution following the TIAA-CREF model. Employees taking this Defined Contribution will vest in this system after one year. This option will be portable. No current employees will be affected by the Governor's pension reform plan. 

** Since 1968 the State Department of Education has offered its DCP Optional Retirement Program to eligible employees.

*** See Article 125-A of the Education Law

Scheduling a disciplinary hearing after charges have been served on the employee a “discretionary act”

Scheduling a disciplinary hearing after charges have been served on the employee a “discretionary act”

Clark v Schriro, 2012 NY Slip Op 00118, Appellate Division, First Department

Jesse Clark filed a CPLR Article 78 petition “in the nature of mandamus” seeking to compel the New York City Office of Administrative Trials and Hearings [OATH] to hold a disciplinary hearing on charges that had been filed against him by the NYC Department of Correction. Supreme Court dismissed Clark’s petition and the Appellate Division affirmed the lower court’s decision.

In the words of the Appellate Division, “Supreme Court properly found that since respondents were not required to provide [Clark] with a hearing within a specifically prescribed period, but only within a "reasonable time" (New York City Charter §1046[c]), their failure to do so for more than a year after charging [Clark] with misconduct did not constitute failure to fulfill a nondiscretionary duty or perform a purely ministerial act.”

Should an employee be suspended from his or her position without pay upon his or her being served with disciplinary charges, however, typically the individual must be restored to the payroll after a specified period of time if such action is mandated by law [see, for example, Civil Service Law §75.3] or as required by a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00118.htm

An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record

An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record 

Rauschmeier v Village of Johnson City, 2012 NY Slip Op 00158, Appellate Division, Third Department

The Village of Johnson City filed disciplinary charges against an employee pursuant to Civil Service Law §75. Following a disciplinary hearing, the Hearing Officer recommended that employee be found not guilty of the charges filed against him and that he be reinstated to his position with full back pay, benefits and seniority.

The Mayor of the Village, with support of the Village Board of Trustees, rejected the Hearing Officer's recommendation, found the employee guilty of misconduct and dismissed the employee from service.

Contending that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, the employee sued, seeking, among other things, an annulment of the penalty imposed by the Mayor. 

Although Supreme Court rejected the employee’s claim that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, a determination sustained by the Appellate Division,* another issue, whether the Mayor’s decision to reject the Hearing Officer's recommendation was supported by substantial evidence, was referred to, and considered by, the Appellate Division.

Addressing the Mayor’s decision to reject the Hearing Officer's recommendation, the Appellate Division said that its review of such a determination was limited to whether it is supported by substantial evidence.

When, however, the appointing authority, rejects a disciplinary recommendation made by a hearing officer after a hearing, the appointing authority must set forth in its decision "findings of fact based on competent proof contained in the record and then employ those findings to arrive at conclusions that are supported by substantial evidence."

The Appellate Division said that the Mayor, in rejecting the Hearing Officer's recommendation, referred to testimony of certain witnesses given at the hearing, but did not specify what in their testimony supported his conclusion.

More is required said the court, “especially since the other evidence introduced at the hearing – all of which is uncontradicted and not in dispute — supports the Hearing Officer's determination.”

Accordingly, the Appellate Division ruled that the Mayor’s “conclusion to the contrary was not supported by substantial evidence,” and thus his determination must be annulled and the employee reinstated to his position with full back pay and benefits.

* The Appellate Division also rejected the employee’s contention that the Mayor acted beyond his legal authority, pointing out that Civil Service Law §75(2) provides that an employee disciplinary proceeding shall be conducted "by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose" and where such a designation is made, the person so designated is to make a record of the hearing  and a recommendation as to the penalty to be imposed in the event the individual is found guilty of one or more charges. The record of the hearing and the recommendation is then to "be referred to [the appointing authority] for review and decision."

The “dual employers” of a volunteer firefighter injured when fighting a fire are both liable for the payment of workers’ compensation benefits

The “dual employers” of a volunteer firefighter injured when fighting a fire are both liable for the payment of workers’ compensation benefits

Levy v Plainview Fire Dept., 89 AD3d 1331

Danny Levy, a member of the Plainview Fire Department, submitted a volunteer firefighters' claim for benefits based upon injuries allegedly sustained while assisting the City of New York Fire Department at the World Trade Center disaster in September 2001.

The Workers' Compensation Board awarded claimant benefits, finding dual liability between the Plainview Fire Department and the self-insured employer, the City of New York, on the ground that Levy's activities at ground zero were directed and controlled by both entities. Rejecting the City’s appeal, the Appellate Division affirmed the Board’s ruling.

The court noted that the General Municipal Law §209-i 1) provides that "Whenever a volunteer [firefighter] is within this state, but outside the area regularly served by the fire company or fire department of which [the volunteer] is a member and has knowledge of a fire or other emergency at or near the place where [the volunteer] is for the time being, such volunteer . . . may report to the officer in command of the paid or volunteer fire company or paid or volunteer fire department, or in command of one of the paid or volunteer fire companies or one of the paid or volunteer fire departments, engaged in the handling of any such fire or other emergency and, on an individual basis, offer his [or her] services to assist such fire company or fire department. After [the volunteer's] services are so accepted, the volunteer . . . shall then be entitled to all powers, rights, privileges and immunities granted by law to volunteer [firefighers] during the time such services are rendered, in the same manner and to the same extent as if [the volunteer] were a volunteer member of the fire company or fire department which he [or she] is assisting, including benefits under the volunteer [firefighters'] benefit law."

The Appellate Division said that the record establishes that Levy initially volunteered on his own at ground zero on September 11, 2001. Thereafter, on September 12, 2001, claimant reported to the Plainview fire house where the fire chief requested volunteers to assist in the rescue and recovery efforts at ground zero. Levy testified that over the course of the next two weeks, he reported to the City's headquarters with other Plainview firefighters who volunteered and that their activities were then directed and controlled by the City.

Accordingly, the court held that substantial evidence supported the Board's factual conclusions regarding Levy’s dual employment.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08514.htm

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli’s office announced that the New York State Employees’ Retirement System is recalculating the pension of a former director at the state Department of Correctional Services (DOCS) after an investigation by his office found that he took Fridays off for 17 years at taxpayer expense.

Howard Dean, 66, of Locke, N.Y., pleaded guilty last year to second degree grand larceny and is awaiting sentencing by Oneida County Judge Barry Donalty. On Tuesday, Judge Donalty postponed Dean’s sentencing to May 10. The case is being prosecuted by Oneida County District Attorney Scott D. McNamara.

Meanwhile, the Comptroller’s office has cut Dean’s annual state retirement benefit by nearly $4,000 and is seeking recovery of $13,500 in pension payments made since his 2008 retirement, based on his admission that he was paid for 17 years of Fridays that he did not work.

“This recalculation and the prosecution sends a key message to any abuser entrusted with public funds: we will find you, we will hold you accountable and we will make you pay,” DiNapoli said. “My office will not tolerate abuses of the state pension system. When a person commits fraud which boosts their pension benefits, we will aggressively seek to cut their payments to account for their theft to the full extent of the law.”

DiNapoli is pushing proposed legislation to elevate official misconduct to a felony and force public officials to pay penalties of up to twice the amount gained by their crimes.

An investigation and audit by DiNapoli and the State’s Inspector General’s office found that Dean defrauded the state of nearly $500,000 in unearned salary and improper perks while serving as director of the DOCS Food Production Center in Rome, N.Y.

Dean freely admitted to auditors that he did not work Fridays for 17 years and the investigation concluded that he had the support of senior management in many of his improprieties. Since then, DOCS has indicated that it has improved internal controls and trained staff to identify fraud and abuse.

The State Comptroller encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud, corruption or abuse of taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint by mail complaint by writing to: Office of the State Comptroller, Investigations Unit, 14th Floor, 110 State St., Albany, NY 12236 or online by e-mail at investigations@osc.state.ny.us .

If a CBA sets out a broad arbitration clause, arbitrability of a grievance depends on the relationship of the subject matter of the dispute to the general subject matter of the CBA

If a CBA sets out a broad arbitration clause, arbitrability of a grievance depends on the  relationship of the subject matter of the dispute to the general subject matter of the CBA

Matter of Haessig (Oswego City School Dist.), 2011 NY Slip Op 09723, Appellate Division, Fourth Department

In this CPLR Article 75 action the president of the Oswego Classroom Teachers Association, Brian Haessig, sought a court order to compel the arbitration of a grievance filed after the school district assigned an additional instructional class to teachers for the 2010-2011 school year. The school district, on the other hand, asked for a stay of arbitration on the ground that the grievance was not arbitrable.

The Appellate Division affirmed Supreme Court’s granting Haessig’s petition while denying the school district’s cross-motion to stay the arbitration.

Citing Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Appellate Division explained that when, as was here the case, the collective bargaining agreement [CBA] contains a broad arbitration clause, the court’s determination of arbitrability is limited to "whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.”

In addition, the Appellate Division said that notwithstanding the CBA provision that "the term grievance' shall not apply to any matter as to which (1) the method of review is prescribed by law, or rules or regulation having the force or effect of law…”the fact that the Commissioner of Education has promulgated regulations pertaining to teacher class loads (see 8 NYCRR 100.2 [i]),” such a provision “does not exclude that subject from the scope of arbitration under the CBA,” explaining that “although Education Law §310 permits any aggrieved party to appeal by petition to the Commissioner of Education, that statute does not mandate a particular method of review and does not preclude submission of disputes concerning teacher class loads to arbitration.”

In addition to rejecting other arguments raised by the school district in support of its position, the court noted that Association “did not abandon its right to arbitrate the [instant] grievance by filing a notice of claim with the Public Employment Relations Board concerning an improper practice charge.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09723.htm