Commissioner’s holding office for a specified term may only be removed during such term for cause

Commissioner’s holding office for a specified term may only be removed during such term for cause

Sedacca v Kelly, 2012 NY Slip Op 01319, Court of Appeals

The Court of Appeals has ruled that the Nassau County Executive did not have the authority to terminate Commissioners of the Nassau County Assessment Review Commission (ARC), in the absence of cause, prior to the expiration of their fixed, statutory terms. 

The ARC consists of nine commissioners appointed by the County Executive subject to approval by the County Legislature and have staggered five-year terms and that no more than six of the commissioners can be enrolled voters of the same political party.

The outgoing Nassau County Executive had appointed six ARC Commissioners. The counsel to the then-newly elected County Executive sent letters to each of the nine commissioners informing them that they were being removed from office pursuant to §203 of the Nassau County Charter. The letter stated that the commissioners had an opportunity to be heard, if they so desired. 

The Court of Appeals noted that the Nassau County Charter vests the County Executive with authority to appoint members of county boards and commissions, subject to approval of the County Legislature, citing Nassau County Charter § 203 [1]). Concomitantly, said the court, "[t]he County Executive may at any time remove any person so appointed; provided that in the case of members of boards and commissions appointed for definite terms, no removal shall be made until the person to be removed has been serv[ed] with a notice of the reasons for such removal and given an opportunity to be heard, publicly if he or she desires, thereon by the County Executive. The decision of the County Executive shall be final." 

Nassau County argued that, according to the plain language of the County Charter, the County Executive was within his authority to terminate Commissioners notwithstanding the absence of any wrongdoing on their part and regardless of the statutory term of office “in order to appoint individuals of his choosing.”

The Court of Appeals said that, in its view, the County’s argument “is inconsistent with the salutary purpose of the legislation at issue.” The court explained that “Although Real Property Tax Law §523-b does not set forth any procedure for the removal of commissioners, the statute demonstrates the legislative intent to protect the ARC from political influence. It is evident that the fixed, staggered terms of office along with the requirement that all of the commissioners must not be members of a single political party, are designed to promote stability of membership and political diversity. Notably, the five-year term of office exceeds the length of the County Executive's own. This design may frustrate the most recent expression of the electorate's mandate, but it is meant precisely to avoid a wholesale change of membership of the ARC upon the installation of each successive administration.”

As Nassau County’s Charter makes clear that when members of a commission appointed for a fixed term are removed, the "reasons for such removal" must be provided. "Reasons," in this context said the Court of Appeals, can reasonably be read as a synonym for "cause." Thus §203 permits removal of commissioners serving fixed terms for cause, but not otherwise. The court ruled that "the Real Property Tax Law §523-b and County Charter §203 are not incompatible, and read them together "to accomplish the clear legislative intent."

Although the Court of Appeals said that the commissioners, as County employees, are not protected by §36 of Public Officers Law,* it then noted that “it is instructive that a finding of some type of misconduct would be required to remove members of the similarly situated Board of Assessment Review (see 4 Ops Counsel SBEA No. 27 [1974])”**.

The court then observed that “Removing the Commissioners without cause under County Charter §203 would frustrate the legislative intent by nullifying the requirements of the RPTL and rendering the staggered statutory terms of office in RPTL 523-b superfluous. \”

Thus, said the court, under the circumstances the commissioners are not essentially at-will employees, subject to termination for any reason whatsoever.

As to the several commissioners’ claim that that they were entitled to attorneys' fees they incurred in the course of this litigation, the Court of Appeals disagreed, holding that although the County is required to "provide for the defense" of an employee involved in a civil action arising out of an act or omission that occurred during the scope of his or her employment, in this instance the “employees commenced the action.” Accordingly, there is no obligation on the part of the County to pay for their "defense."

* §36 of the Public Officers Law provides for the removal of public officers "for any misconduct, maladministration, malfeasance or malversation in office."

** Office of Real Property Tax Services, New York State Department of Taxation and Finance. Opinions of Counsel are posted on the Internet at: http://www.tax.ny.gov/pubs_and_bulls/orpts/legal_opinions/index.htm

The decision is posted on the Internet at:

http://www.publicpersonnellaw.blogspot.com/

Filing a complaint about a school teacher with the school district may not be protected by an “absolute privilege”

Filing a complaint about a school teacher with the school district may not be protected by an “absolute privilege”
Posner v Lewis, 2012 NY Slip Op 01323, Court of Appeals

In this tort action, the Court of Appeal said that it must decide whether defendants' course of conduct in instigating complaints to school authorities against Posner, a nontenured teacher, is entitled to an absolute privilege under Brandt v Winchell (3 NY2d 628]) that would warrant dismissal of Posner's causes of action for prima facie tort and tortious interference with prospective contractual rights.

The Court’s conclusion: Assuming the truth of the allegations in the complaint, as we must at this early stage of the litigation, we conclude that defendants' conduct is not immunized by Brandt.

In Brandt the court recognized an "immunity from civil suit" for truthful communications resulting in "the exposure of those guilty of offenses against the public" (3 NY2d at 635).

The Posner decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01323.htm

A probationer has the burden of establishing that he or she was terminated for a constitutionally impermissible reason or in violation of a statute or decisional law

A probationer has the burden of establishing that he or she was terminated for a constitutionally impermissible reason or in violation of a statute or decisional law

Appeal of Lindsey Stephenson, Decisions of the Commissioner Education, Decision No. 16,329

Lindsey Stephenson, a probationary educator, was notified that her position was being abolished, effective June 30, 2010, and that she would be placed on a preferred eligible list. 

Subsequently, and as the result of an investigation following a report concerning an alleged incident involving students, the principal submitted a letter to the superintendent recommending that Stephenson be terminated. 

On the basis of the principal’s recommendation, superintendent notified Lindsey that he would recommend that the board terminate her from her position. 

Lindsey requested, and received a written statement of the reasons for the superintendent’s recommendation to terminate her services as a probationary teacher pursuant to Education Law §3031. Ultimately the school board voted to terminate Lindsey’s employment and to remove her from the preferred eligible list. 

Although the Commissioner dismissed Lindsey’s appeal for a number of other technical reasons, his decision notes that “it is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter.”

Here the record indicated that Lindsey brought a grievance in which she alleged that the district violated the parties’ collective bargaining agreement and as relief “sought rescission of her termination and placement on the preferred eligibility list.” Her grievance was denied. Lindsey than filed a second grievance, alleging that the district violated certain provisions of the parties’ collective bargaining agreement. This grievance was also denied.

The Commissioner then said the “Even if the petition was not dismissed on procedural grounds, it would be dismissed on the merits.  Generally, a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statute or decisional law.”

Noting that Lindsey disagreed with School Board’s decision to terminate her services, the Commissioner found that she had not establish that Board had terminated her employment for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.  Nor, said the Commissioner, the record did not support Lindsey’s assertions that Board had acted in bad faith

Finding that “On the record before me, there is no basis for overturning [the Board’s] decision to terminate [Lindsey’s] probationary appointment,” the Commissioner dismissed Lindsey’s appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16329.html

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

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

[Issued during the week of February 13 - 19, 2012]

For details, click on the text highlighted in color below.

DiNapoli Makes Property Tax Cap Information Available

Local governments and school districts are required to report the information used in calculating their tax cap for the coming fiscal year prior to adopting a budget. An estimated 4,000 local governments and school districts may be required to report this information annually. Over 2,000 local governments have already submitted their tax cap reports and that information is now available on Open Book New York, which will be updated nightly. Please note, the tax cap information found on Open Book New York reflects the data as submitted by local governments; it has not been edited or certified by the Comptroller’s Office.


DiNapoli: Village Officials Used LDC to Avoid State Procurement Laws

The village of Cornwall–on–Hudson skirted state procurement laws by using the Cornwall–on–Hudson Local Development Corporation to construct a new public works garage that was built on unsuitable land, failed to meet building codes and cost $929,000, according to an audit released Wednesday by New York State Comptroller Thomas P. DiNapoli.


DiNapoli: Pension Fund Gains in Third Quarter of FY 2011

The New York State Common Retirement Fund (Fund) was valued at $140.3 billion after Fund investments posted an estimated 4.83 percent rate of return for the third quarter ending December 31, 2011, according to New York State Comptroller Thomas P. DiNapoli.


DiNapoli’s Office Releases Municipal Audits

New York State Comptroller” office completed the following audits in the last two weeks:

The Broome County Industrial Development Agency;

The Town of Clifton;

The Village of Earlville;

The Town of Guilford;

The Town of Hannibal;

The Indian Falls Fire Department;

The Town of New Hudson;

The Village of Nyack;

The Village of Rouses Point;

The Rushford Lake Recreational District;

The Town of Warren; and;

The Westport Fire District.

The failure of the appointing authority to designate the §75 hearing officer in writing is a fatal jurisdictional defect

The failure of the appointing authority to designate the §75 hearing officer in writing is a fatal jurisdictional defect

Gardner v Coxsackie-Athens Cent. School Dist. Bd. of Educ., 2012 NY Slip Op 01156

A Civil Service Law §75 hearing officer found in A. Dennis Gardner guilty charges alleging that he had engaged in “inappropriate behavior” and he was terminated from his head custodian position by the Coxsackie-Athens Board of Education.

Gardner appealed claiming that the decision and the penalty imposed had to be annulled as the hearing officer had not been designated to serve as the hearing officer in writing as mandated by §75.2 of the Civil Service Law. The Appellate Division agreed and annulled the school board’s determination.

Noting that Civil Service Law §75(2) mandates that an employee disciplinary proceeding "shall be held by the officer or body having the power to remove the person against whom such charges are preferred, or by a . . . person designated by such officer or body in writing,” the Appellate Division said that “in the absence of a written designation” the removing body or hearing officer has no jurisdiction to discipline an employee and “any disposition flowing from such a proceeding will be void.”

Although in cases as Perryman v Village of Saranac Lake, 64 AD3d 830 where there was evidence that the designation of hearing officer was reflected in minutes of board meeting and Stafford v Mohonasen CSD, 61 AD3 1259, (Leave to Appeal denied, 13 NY3d 704) where the “designation of hearing officer memorialized in letter referencing appointment of hearing officer at board meeting,” in this instance the Appellate Division said that Coxsackie-Athens “provided no evidence that it ever designated the Hearing Officer in writing as required by Civil Service Law §75(2).”

The court rejected Coxsackie-Athens argument that Gardner “had notice of the Hearing Officer's identity because its attorney copied [Gardner] on an e-mail to the Hearing Officer establishing the time and date of the hearing.”

The e-mail, said the court, “did not reference any official designation of the Hearing Officer” by Coxsackie-Athens and, citing Perez v New York State Dept. of Labor, 244 AD2d 844, ruled that the school district’s reliance on such a writing was insufficient to meet the specific requirement of Civil Service Law §75(2).

In addition, the Appellate Division pointed out that this “jurisdictional defect” could not be waived by Gardner’s failure to object to the defect.

The Appellate Division said that the Hearing Officer's determination and school district’s adoption thereof must be annulled and that Gardner was to be restored to his former position, with back pay and benefits.

Addressing the school district’s claim that Gardner’s Article 78 petition was untimely, the Appellate Division said that Supreme Court’s holding that the four-month statute of limitations to commence an CPLR Article 78 proceeding was extended for 30 days upon filing a notice of claim under Education Law §3813(1) was correct and, therefore, Gardner’s Article 78 petition was timely.

New York courts have distinguished between proceedings “which on the one hand seek only enforcement of private rights and duties and those on the other in which it is sought to vindicate a public interest; the provisions of subdivision 1 of section 3813 are applicable as to the former but not as to the latter” (see Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Div. of Human Rights Appeal Bd., 35 NY2d 371, 380, rearg denied 36 NY2d 807).

_____________________

The 2012 edition of the Discipline Book is now available

To learn more about this concise guide to disciplinary actions involving public employees in New York State click on http://thedisciplinebook.blogspot.com/

_____________________

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01156.htm

Tenure by estoppel

Tenure by estoppel

Andrews v Board of Educ. of the City School Dist. of the City of New York, 2012 NY Slip Op 00845, Appellate Division, First Department

Education Law §§2573(1)(a) and 3012(2) requires that a probationary employee whose employment will not be continued be given the 60-day written notice that he or she was not recommended for tenure.

Although Dana Andrews was not given the required written notice and claimed to have taught for one day after the expiration of her probationary term, the Appellate Division ruled that Andrews had not acquired tenure by estoppel.

The court said that the record shows that the New York City Department of Education [DOE] “did not, ‘with full knowledge and consent,’ permit her to continue to teach after her probationary term expired.” According to the decision, it was undisputed that Andrews was informed in May 2009 that her employment would be discontinued, “and when she reported for duty on September 8, 2009, she was told immediately that she had been terminated, and was given no further assignments.”

Explaining that Andrews was not paid for working on September 8, 2009 and the DOE’s actions "speak loudly against any supposition that [DOE] meant to perpetuate [Andrews's] employment" the Appellate Division affirmed Supreme Court’s denial of her petition seeking a court order declaring that she had attained tenure by estoppel.

Tenure by estoppel "results when a school board fails to take the action required by law to grant or deny tenure and, with full knowledge and consent, permits a teacher to continue to teach beyond the expiration of the probationary term," [Lindsey v Board of Education of Mt. Morris Central School District, 72 AD2d 18].

However, in Tucker v Board of Education, 189 AD2d 704, the Appellate Division held that Tucker was entitled to pay corresponding to the number of days for which she was not provided the statutory 60 days of notice.

The Court of Appeals affirmed the Appellate Division’s determination [see 82 N.Y.2d 274]. The court noted that while the law does not specially provide for a remedy in the event the notice requirement is not met, the courts and the Commissioner of Education have consistently held that in cases involving intentional delay or as a result of oversight, teachers are to be awarded one day of pay for each day that the notice was late.

The Court of Appeals explained that the purpose of the statute's 60-day notice requirement is to afford probationary teachers a reasonable period of time, before the end of their probationary period, to make plans for the upcoming school year and is a rule founded on reasons of practicality and fairness to probationary teachers. It said that there was nothing in the statute or its legislative history indicating that there should be an exception to law's broader purpose of providing probationary teachers with minimal notice of tenure denials to enable them to seek other employment.

The Andrews decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00845.htm

Refusal to work that results in the loss of employment does not constitute disqualifying misconduct if the employee’s refusal is attributable to a substantiated health problems

Refusal to work that results in the loss of employment does not constitute disqualifying misconduct if the employee’s refusal is attributable to a substantiated health problems

Matter of Lewis (County of Livingston--Commissioner of Labor), 2012 NY Slip Op 00876, Appellate Division, Third Department

After Cindy L. Lewis, a certified nursing assistant employed by a county-owned nursing home, refused to work mandated overtime* shifts on two occasions Lewis County terminated her employment was terminated. Ultimately the Unemployment Insurance Appeals Board ruled that Lewis was entitled to unemployment insurance benefits.

Lewis County appealed but the Appellate Division sustained the Board’s determination.

The court explained that whether an employee's failure to work the required hours rises to the level of disqualifying misconduct is a factual issue for the Board to resolve and its determination will not be disturbed when supported by substantial evidence.

The critical factors were that Lewis’ doctor issued notes that indicated that she was medically restricted with regard to the amount of overtime she could work during the relevant period, and the record indicated that the employer had been notified of those restrictions.

Noting that it has been held that the loss of employment attributable to substantiated health problems will not constitute disqualifying misconduct, the Appellate Division said that it declined to disturb the Board's decision.

* An agreement between the employer and Lewis’ union provided that the employer could mandate that staff work overtime, a procedure known as "mandation."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00876.htm

The statute of limitations for filing a lawsuit is not tolled by a dismissed probationer’s pursuing his or her opportunity to seek an administrative review of the determination

The statute of limitations for filing a lawsuit is not tolled by a dismissed probationer’s pursuing his or her opportunity to seek an administrative review of the determination

Kahn v New York City Dept. of Educ., 2012 NY Slip Op 01098, Court of Appeals [Decided with Nash, v New York City Dept. of Educ.]

In Kahn v New York City Department of Education 79 AD3d 52, the Appellate Division held that the statute of limitations for initiating a lawsuit is not tolled by the individual’s pursuing his or her opportunity to seek an administrative review of the determination.

Leslie Kahn, a probationary social worker, was given an unsatisfactory evaluation and was not given a “Certification of Completion of Probation.” She was then terminated from her position and advised that she was entitled to an administrative review under the relevant collective bargaining agreement. Kahn filed an "administrative appeal." An administrative hearing was held. The denial of a “Certification of Completion of Probation” was affirmed and Kahn initiated a lawsuit challenging that determination.

The court said that a petition to challenge the termination of probationary employment on substantive grounds must be brought within four months of the effective date of termination, citing CPLR §217[1]. Significantly, the decisions points out that the controlling statute of limitations is not extended by the individual’s pursuit of administrative remedies.

To avoid such a result, where there is an administrative appeal available, it seems that the aggrieved party should make certain to both file a timely administrative appeal and a timely Article 78 petition. 

In this instance the Department of Education was obligated by its collective bargaining agreement (CBA) with the United Federation of Teachers and its own bylaws to afford probationary employees the opportunity for reconsideration of a decision to discontinue their employment. However, the Court of Appeals decided that such reviews "stem solely from the [CBA]" and constitute ‘an optional procedure under which a teacher may ask [DOE] to reconsider and reverse [its] initial decision, . . . which is final and which, when made, in all respects terminates the employment of a probationer under Education Law §2573(1)(a)’ … they are not administrative remedies that [Kahn was] required to exhaust before litigating the termination of [her] probationary employment.”

As DOE’s decisions to discontinue the employment of Kahn and Nash were "final and binding" within the meaning of CPLR §217 (1) as of the dates when Kahn's and Nash's probationary service ended, January 25, 2008 and July 15, 2005, respectively, the fact that they awaited the outcome of the internal reviews provided for under the CBA and DOE's bylaws before commencing suit proved fatal to their filing a timely petition challenging those decisions. As they had, respectively, filed their respective petitions more than four months after the dates when their probationary service ended, such challengers were held time-barred.

The court explained that "The law is well established that a decision to terminate the employment of a probationary [employee] is final and binding on the date the termination becomes effective, and this is true even in circumstances where administrative review is available," citing Triana v Board of Education, 47 AD3 554.

In addition, the Court of Appeals said that the Appellate Division noted although Kahn’s notice of termination was procedurally defective because she was not given the 60 days' prior notice required by Education Law §2573(1)(a), "that defect [did] not invalidate the discontinuance [of her employment] or render the statute of limitations inapplicable; at best, it would have entitled [Kahn] to additional back pay had she served a notice of claim and sought money damages."

As to Nash, the Appellate Division [see 82 AD3d 470] held that to the extent that Nash disputed the loss of her job at DOE, her claim was time-barred under CPLR §217(1) because "a petition to challenge the termination of probationary employment must be brought within four months of the effective date of termination, during which time the termination is deemed to become final and binding, and a petitioner's pursuit of administrative remedies does not toll the four-month statute of limitations."  

The Court of Appeals affirmed the Appellate Divisions’ rulings in both Kahn and Nash.

The lesson here is that should an aggrieved individual await the final “administrative determination” rather then file an otherwise timely petition seeking judicial review, he or she may find that his or her subsequent filing of such a petition is untimely.

The decision in Kahn, decided with Nash, is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01098.htm