Employee found to have violated employer's domiciliary policy terminated

Employee found to have violated employer's domiciliary policy terminated
Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 2012 NY Slip Op 01293, Appellate Division, Fourth Department

Roxanne Adrian sued to annul the School Board’s determination terminating her employment with Niagara Falls City School District based on her failure to comply with the District's residency policy. The District’s policy required District employees to be domiciliaries of the City of Niagara Falls.

The Appellate Division vacated Supreme Court’s granting Adrian’s petition, stating that . “it is well established that a "domicile means living in [a] locality with intent to make it a fixed and permanent home. "

The court said that the evidence presented to the Board was sufficient to establish that Adrian was not a domiciliary of the City but rather was domiciled in Williamsville.

The evidence considered by the Board included proof that Adrian maintained a phone line at the Williamsville residence but not at the Niagara Falls residence that Department of Motor Vehicles records indicated that she lived at the Williamsville address.*

The court also noted that “a surveillance company observed petitioner on six separate occasions, during different time periods, and found that [Adrian] she never went to the Niagara Falls residence and always left from and returned to the Williamsville residence.

While Adrian submitted some evidence “demonstrating that the Niagara Falls residence may have been her domicile” such as her voter registration card, rent payment receipts, driver's license and cable statements, that evidence was not so overwhelming as to support Supreme Court's determination granting Adrian’s petition.

The Appellate Division, citing O’Connor v Board of Education, Niagara Falls City School District, 48 AD3d 1254, leave to appeal dismissed 10 NY3d 928, also rejected Adrian’s claim the District improperly failed to conduct a hearing before terminating her, explaining that such a hearing was not required by law.

In Gigliotti v Bianco, 82 AD3d 1636, the court said that assuming that the District had provided Gigliotti with an opportunity, in contrast to a hearing, to show that the educator satisfied the District’s requirement regarding domicile, the court disagreed with the District’s conclusion that Gigliotti was not domiciled in Niagara Falls.

Significantly, the court commented that although the District did not conduct a hearing before terminating Gigliotti’s employment, such a hearing was not "required by statute or law," citing Colton v Berman, 21 NY2d 322

Typically courts have viewed employees who lack required licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. In
Adrian failing to meet the school district’s domiciliary requirements apparently was similarly viewed.

* Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time. New York courts and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (Matter of Newcomb, 192 NY 238 at 250 [1908]

The Adrian decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01293.htm

Town Law’s shorter statute of limitation to bring an Article 78 action challenging an adverse disciplinary determination trumps longer Civil Service Law’s statute of limitations

Town Law’s shorter statute of limitation to bring an Article 78 action challenging an adverse disciplinary determination trumps longer Civil Service Law’s statute of limitations

Robida v Ziemba, 2012 NY Slip Op 01041, Appellate Division, Fourth Department

Town of Cheektowaga police officer David K. Robida was served with disciplinary charges pursuant to both Civil Service Law §75 and Town Law §155. A hearing was held in accordance with those statutes.

Ultimately the Town Board adopted a resolution that terminated Robida pursuant to Town Law §155.

Town Law §155 specifically provides that a CPLR Article 78 proceeding to review a determination pursuant to the statute must be commenced within 30 days of the determination; §76 of the Civil Service Law provides that such a proceeding must be commenced within four months after the determination becomes final. *

The Appellate Division said that it was undisputed that Robida commenced his action more than 30 days after the Town Board's determination. Accordingly, said the court, “it is time-barred.”

The court rejected Robida’s argument that the time limits set out in §75 controlled and thus his petition was timely, ruling that “the 30-day limitations period set forth in Town Law §155 is not limited to those disciplinary proceedings that were brought solely pursuant thereto.”

The Appellate Division explained that the statute of limitations for a CPLR Article 78 proceeding pursuant to which Robida sought to annul th Board's determination is governed by CPLR §217(1), which provides that, "u]nless a shorter time is provided in the law authorizing the proceeding," the proceeding must be commenced within four months after the determination to be reviewed becomes final.

As in this instance the "shorter time" was set out in Town Law §155, which authorized the disciplinary proceeding, Robida was required to file his petition challenging the Town’s determination within 30 days of the Board's decision becoming final.

* §76.1 of the Civil Service Law provides that an appeal from an adverse disciplinary decision made pursuant to §75 of the Civil Service Law may be made to the civil service commission having jurisdiction within twenty days after service of written notice of the determination to be reviewed or in accordance with the provisions of Article 78 of the CPLR. An even shorter statute of limitations is set out in §3020-a.5 of the Education Law for appealing a disciplinary arbitration decision pursuant to Article 75 of the CPLR – 10 days. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01041.htm

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Refusal to accept assignments ruled misconduct

Refusal to accept assignments ruled misconduct

NYC Transit Authority v Alday, OATH Index #475/12

The New York City Transit Authority charged a civil engineer with insubordination after he had repeatedly refused to accept work reassignments given to him by his supervisor despite his subsequently complying with the supervisor’s directive after being order to do so by a higher level superior.

Rejecting the employee’s defense that he wanted to make sure it was "the official management decision” as he did not believe his temporary supervisor had the authority to “reassign people just like that,” OATH Administrative Law Judge Tynia D. Richard held that employee’s repeated refusals to accept the reassignments given to him by his temporary supervisor constituted misconduct.

Dismissing two other charges of alleged misconduct filed against the employee, Judge Richard, in consideration of the individual's “nearly clean record of discipline and 28-year tenure with the City,” recommended the Department imposed the penalty of a reprimand rather than the 15-day suspension without pay proposed by the Transit Authority.

The ALJ explained that the lesser penalty was being recommended as two of the three charges of alleged misconduct had been dismissed as the agency had “failed to prove” them.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-475.pdf

Children permitted to testify as witnesses in a disciplinary arbitration

Children permitted to testify as witnesses in a disciplinary arbitration

Stergiou v New York City Dept. of Educ., 2012 NY Slip Op 50291(U), Supreme Court, New York County, Justice Shlomo S. Hagler

One of the issues in this Article 75 of the Civil Practice Law appeal from an adverse disciplinary arbitration award was the arbitrator’s permitting 8-year old third grade students to testify in a disciplinary hearing “because she believed that they were competent witnesses.” The arbitrator excluded the accused teacher from the hearing room while the students were testifying but permitted the teacher’s attorney to cross-examine them.

Justice Hagler, noting that under Education Law §3020-a the parties are subject to compulsory arbitration, said that the arbitration award must satisfy the tests set out in Article 75 and, in addition, also satisfy further judicial scrutiny in that it "must have evidentiary support and cannot be arbitrary and capricious."

Addressing the teachers argument that the arbitrator permitted incompetent witnesses to testify and failed to let her “confront the witnesses,” Justice Hagler said that the “courts are the gate-keepers in ensuring that only competent witnesses may testify under oath” and children may testify “after a preliminary examination gauging the capacity and intelligence of the child, the appreciation of the difference between right and wrong, and the obligations of taking an oath.”

The court then quoted United States Supreme Court Justice Brewer’s statement in Wheeler v United States, 159 US 523, that "The decision of this question rests primarily with the trial judge [or hearing officer], who sees the proposed [child] witness, notices his manner, his apparent possession or lack of intelligence, as well as his understanding of the obligations of an oath."

Justice Hagler found that the arbitrator conducted an adequate voir dire or preliminary examination into each witnesses’ competency and was able to gauge their level of understanding, ability to tell the truth and to take an oath. In addition, said the court, the arbitrator’s “line of inquiry was satisfactory” and the teacher’s counsel “did not seek any voir dire whatsoever into the minor witnesses competency.”

Further, Justice Hagler held that “Even assuming arguendo that the [arbitrator] did not have a proper foundation for children's testimony, the [she] was not bound by the strict rules of evidence and was permitted to elicit such testimony that she believed would be just and proper under the circumstances.”

As to the teacher’s claim that she was denied her due process rights to hear the testimony or confront the eight (8) year old witnesses, the court said that she “did not have an absolute right to do so in the context of an arbitration/administrative disciplinary hearing,” citing Matter of Abdur-Raheem v Mann, 85 NY2d 113.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_50291.htm

Hearing officer recommends correction officer found to have fraternized with an inmate be dismissed

Hearing officer recommends correction officer found to have fraternized with an inmate be dismissed

NYC Department of Corrections v Tillery, OATH Index #467/12

OATH Administrative Law Judge John B. Spooner sustained charges that a correction officer engaged in undue familiarity with an ex-inmate and made false statements about the relationship.

Judge Spooner found the officer’s testimony that the two had never met before the ex-inmate had completed his sentence lacked credibility, considering that the officer had worked in the same dormitory where the inmate was incarcerated for three months under her supervision.

Noting that respondent’s false statements were nearly as troubling as the misconduct itself, the ALJ recommended termination of the officer’s employment.

Other decisions addressing workplace fraternization issues include: Vega v Dept. of Correctional Services, 588 NYS2d 202; Laspisa v Mahoney, 603 NYS2d 536; State of New York v Wal-Mart Stores, 207 A.D.2d 150; and DeCintio v Westchester County Medical Center, 821 F2d 111

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-467.pdf

Public employer’s agreement to defend and indemnify officers and employees being sued in a civil action may be rescinded for failure to cooperate

Public employer’s agreement to defend and indemnify officers and employees being sued in a civil action may be rescinded for failure to cooperate

Lancaster v Incorporated Vil. of Freeport, 2012 NY Slip Op 01465, Appellate Division, Second Department

The Board of Trustees of the Incorporated Village of Freeport revoked its earlier resolution adopted in accordance with §18 of the Public Officers Law providing a defense and indemnification in certain civil actions for certain officers or employees of the Village. *

§18, in pertinent part, provides for the defense and indemnification of officers and employees of public entities being sued for an act or omission related to the performance of official duties.

Subdivision 5 of §18 requires the officer or employee to meet the following requirements in order to meet the following conditions with respect to the public entity’s “duty to defend or indemnify and save harmless” the individual being sued:

 (i) delivery by the employee to the chief legal officer of the public entity or to its chief administrative officer of a written request to provide for his defense together with the original or a copy of any summons, complaint, process, notice, demand or pleading within ten days after he is served with such document, and

 (ii) the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the public entity based upon the same act or omission, and in the prosecution of any appeal.

In response to the officers and employees challenging the action of the Board rescinding its earlier resolution to defend and indemnify them, the Appellate Division sustained Supreme Court’s dismissal of their petition.

The Appellate Division explained that such action on the part of the Board was neither arbitrary and capricious nor an abuse of discretion as the conduct of such officers and employees “after their cooperation in the defense of those actions was diligently sought, was one of willful and avowed obstruction.”

* §17 of the Public Officers Law provides similar protections to officers and employees of the State as the employer.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01465.htm

Hearing officer recommends that employee found guilty of excessive absence be terminated from her position

Hearing officer recommends that employee found guilty of excessive absence be terminated from her position

NYC Department of Corrections v E.G., OATH Index #214/11

The Department of Correction sought to terminate a correction officer, E.G., pursuant to §73 of the Civil Service Law after she had been absent from work for more than a year due to a non-work related disability.*

In the alternative, the Department simultaneously filed disciplinary charges against E,G. pursuant to §75 of the Civil Service Law alleging that she medically incompetent to perform the duties of her position as she had ben absent on sick leave for 313 days during an 18-month period.

E.G., on the other hand, asserted that she was fit to return to work.

After weighing the testimony of three experts and the Department of Correction, OATH Administrative Law Judge Ingrid A. Addison found E.G. unfit to return to work due to her “non-job related disability.”

The ALJ also found that E.G.’s absence from work involved an excessive use of sick leave and that such conduct provided an independent basis for disciplinary action pursuant to Civil Service Law §75. 

Judge Addison ruled that E.G. was “medically incompetent to perform the duties of her position and recommended that the Appointing Authority terminate E.G.’s employment pursuant to Civil Service §75.

The ALJ also found that as E.G. “is not rehabilitated," such dismissal from her position "is not violative of her human rights protections," citing McEniry v. Landi, 84 NY2d 554.

* §73 permits the appointing authority, as a matter of discretion, to terminate an employee who has been continuously absent for one year or longer, regardless of whether such absence was self-imposed by the employee or flowing from the employee's having been involuntarily placed on a leave of absence by the appointing authority pursuant to §72 of the Civil Service Law [see §72.4]. In contrast to termination pursuant to §75, termination pursuant to §73 is not pejorative and the individual may apply for reinstatement to his or her former position "within one year after the termination of such disability."

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2141.pdf

Former welfare fraud investigator convicted of stealing almost $5,000 from the Comptroller's Office of Unclaimed Funds

Former welfare fraud investigator convicted of stealing almost $5,000 from the Comptroller's Office of Unclaimed Funds

Source: Office of the State Comptroller

After an investigation initiated by State Comptroller Thomas P. DiNapoli, a former investigator with the State Welfare Inspector General’s Office pleaded guilty to illegally obtaining unclaimed funds being held by the Comptroller’s Office of Unclaimed Funds.

The Office of Unclaimed Funds holds such monies until they are claimed by the rightful owners. DiNapoli’s investigation found that investigator had submitted 15 forged abandoned property claims to the Office of Unclaimed Funds.

The case was prosecuted by the Manhattan District Attorney’s office and the former investigator, who resigned from his $62,597 position with the State, was sentenced to perform community service and ordered to pay restitution.

The Comptroller maintains a site on the Internet where interested individuals, organizations or businesses may search for funds deposited with the Office of Unclaimed Funds at https://ouf.osc.state.ny.us/ouf/. Such moneys typically are sent to the Office from forgotten or unknown bank accounts, investment or brokerage accounts or insurance policies in accordance with the provisions of the Abandoned Property Law. In some cases a business or governmental agency is the owner of the money. For example, the Comptroller recently delivered $4,844.72 in unclaimed funds to the City of Syracuse.

“Fraud is fraud, but it is particularly egregious when it is committed by a public servant charged with investigating fraud,” DiNapoli said.

DiNapoli encourages the public to help fight against fraud and abuse by report allegations of fraud, corruption and abuse of taxpayer money. Persons wishing to assist the Comptroller in this may use the Comptroller’s toll-free fraud hotline at 1-888-672-4555; file a complaint online at investigations@osc.state.ny.us; or mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Terminated probationer has the burden of proof in challenging his or her dismissal

Terminated probationer has the burden of proof in challenging his or her dismissal
Lane v City of New York, 2012 NY Slip Op 01257, Appellate Division, Second Department

In affirming Supreme Court’s dismissal of a dismissed probationary employee’s petition seeking reinstatement to his former position, the Appellate Division set out the following guidelines that courts consider in adjudicating such an action.

1.The employment of a probationary employee may be terminated without a hearing and without a statement of reasons in the absence of the former probationary employee demonstrating that his or her termination was made in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.

2. Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for the other improper or impermissible reasons set forth above and the burden of proof is on the individual.

3. The individual’s speculation that his or her dismissal was made in bad faith is insufficient to warrant a hearing.

The Commissioner of Education indicated the same standard would apply had he considered the appeal submitted by a probationary teacher challenging her termination by the school board [see Decisions of the Commissioner Education, Decision No. 16,329, http://publicpersonnellaw.blogspot.com/2012/02/probationer-has-burden-of-establishing.html].

The Lane decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01257.htm

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

NYC Department of Sanitation v E.L., OATH Index #2107/11

The Department of Sanitation charged a sanitation worker, E.L., with failure to complete a federally mandated drug test in violation of Rule 2.5 of the Department’s Code of Conduct. 

E.L. had appeared for the test and was cooperative but was unable to provide the required amount of urine in the three hours he was given. He subsequently submitted a note from his urologist, explaining that E.L. had urological conditions that could have prevented him from urinating. Later E.L. was diagnosed as having prostate cancer. 

The Medical Review Officer (MRO), who had no specialized knowledge in urology, ruled that the note submitted by E.L.’s physician were insufficient to excuse for E.L.’s failure to provide a sufficient sample.  In addition, the MRO refused to consider E.L.’s prostate cancer as that condition was not diagnosed within the five-day time period the regulations gave test subjects for providing a note. 

As a result, the MRO marked respondent as having refused to take the drug test and the Department initiated disciplinary action against E.L. 

OATH Administrative Law Judge Kara J. Miller found that both the test collector and the MRO failed to follow federal drug testing procedures, and these procedural errors mandated cancellation of E.L.’s test. 

In addition Judge Miller ruled that even absent the necessity for cancellation, the charges against E.L. should be dismissed as his actions were not willful and the evidence established that he was physically unable to provide the required amount of urine when asked to the urine sample requested and dismissed the charges the Department had filed against E.L.  

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2107.pdf

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).

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The decision is posted on the Internet at:

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