Employee’s claim that “I was pressured” into agreeing to a plea bargain in a criminal action in the course of an administrative disciplinary hearing rejected by administrative law judge

Employee’s claim that “I was pressured” into agreeing to a plea bargain in a criminal action in the course of an administrative disciplinary hearing rejected by administrative law judge

NYC Department of Sanitation v Bongiardina, OATH Index #1971/11

OATH Administrative Law Judge Faye Lewis recommended that a NYC Department of Sanitation employee who plead guilty in criminal court to the charge that he had accepted an unlawful gratuity in violation of Penal Law Section 200.35, a Class A misdemeanor.

The employee’s plea included a statement on the record that he accepted a gratuity while performing his job duties, a violation of the Department’s code of conduct and Mayor’s Executive Order 16. Executive Order 16 provides that any City employees “convicted of a crime* relating to their office or employment, involving moral turpitude or which bears upon their fitness or ability to perform their duties or responsibilities . . . absent compelling mitigating circumstances . . .” shall be dismissed for his or her position. Judge Lewis found that this plea conclusively established that the acts underlying the crime occurred.

The ALJ rejected the employee’s claim that he was pressured into agreeing to the plea bargain by his co-defendants, finding he could not show “any concrete reason for believing that the co-defendants would retaliate against him” if he failed to do so.

The Commissioner adopted the ALJ’s findings and noted that her decision was based on the evidence and precedents.

However, considering the employee’s good work record and his lesser role in the misconduct involving his co-workers, the Commissioner elected not to terminate his employment and imposed a 30 work-day suspension without pay and the loss of 4 weeks vacation as the disciplinary penalty.

* An individual who enters a pled of guilty in a court of law is deemed to have been convicted of the charge[s] filed against him or her.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1971.pdf

A request for reconsideration of an administrative determination neither extends nor enlarges the statute of limitation for filing a timely Article 78 petition

A request for reconsideration of an administrative determination neither extends nor enlarges the statute of limitation for filing a timely Article 78 petition
Baloy v Kelly, 2012 NY Slip Op 01134, Appellate Division, First Department

The New York City Police Commissioner refused to issue a "good guy" letter authorizing Romeo Baloy to carry firearms upon retirement from the New York Police Department,.

In a letter to Baloy’s wife in August 2006, the Department explained that Baloy’s application for the license was denied because, at the time of his retirement, he was on restrictive duty and ineligible to possess firearms.

Baloy subsequently filed a petiton pursuant to Article 78 of the Civil Practice Law and Rules seeking a court order compelling the Commissioner to issue such a letter to him.

Supreme Court dismissed Baloy’s petition, indicating that the Department’s letter to his wife was a "final and binding" determination and Baloy knew or should have known that he was "aggrieved" by it. Accordingly, the four-month statute of limitations began to run, at the latest, upon receipt of the letter.

The Appellate Division agreed, ruling that Supreme Court  “correctly found” that a letter dated April 24, 2009 from Baloy's attorney was a request for reconsideration of the agency's determination, and thus did not extend the statute of limitations.

Further, said the court, as the letter dated May 6, 2009 from the Department reiterated that Baloy did not obtain a “good guy letter” upon retirement because of his restricted duty status, it was not a "new determination" that would suffice to revive the statute of limitations.

In any event, the Appellate Division said that “The possibility of obtaining administrative relief had been exhausted when [Baloy] retired without a change in his restricted duty status.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01134.htm

Teacher and principal evaluation system to be enacted into law

Teacher and principal evaluation system to be enacted into law 

Source: Office of the Governor

On March 14, 2012 Governor Andrew M. Cuomo, Senate Majority Leader Skelos, and Assembly Speaker Sheldon Silver announced an agreement on legislation to put the Governor's new groundbreaking teacher and principal evaluation system into law, firmly establishing New York as a national leader in school accountability.

The Governor’s office reported that the new evaluation system “will provide clear standards and significant guidance to local school districts for implementation of teacher evaluations based on multiple measures of performance including student achievement and rigorous classroom observations.”

According to the Governor's office, the key elements of the legislation include:

Teacher Performance – 60 points

Under the legislation, 60 percent of a teacher's evaluation will be based on rigorous and nationally recognized measures of teacher performance. The legislation requires that a majority of the teacher performance points will be based on classroom observations by an administrator or principal, and at least one observation will be unannounced. The remaining points will be based upon defined standards including observations by independent trained evaluators, peer classroom observations, student and parent feedback from evaluators, and evidence of performance through student portfolios.

Student Achievement in State and Local Assessments– 40 points

Under the legislation, 40 percent of a teacher's evaluation will be based on student academic achievement, with 20 percent from state testing and 20 percent from a list of three testing options including state tests, third party assessments/tests approved by the SED and locally developed tests that will be subject to SED review and approval. Under the plan, school districts will also have the option of using state tests to measure up to 40 percent of a teacher's rating.

Rating System

The legislation significantly tightens the scoring system to ensure student achievement and teacher performance are both properly taken into account for teacher ratings. Teachers or principals that are rated ineffective in the 40 points could not receive a developing score overall.
Highly Effective: 91 – 100
Effective: 75 – 90 

Developing: 65 – 74
Ineffective: 0 – 64

Point Allocation System for the Ratings

The legislation sets forth, for the first time, a standard for school districts and teacher unions to set the allocation of points for the teacher ratings. The points must be allocated in a manner that a teacher can receive one of the four ratings, and the SED Commissioner will be able to reject points that are unfairly allocated.

SED Commissioner Final Review

The legislation also, for the first time, gives the SED Commissioner the authority to approve or disapprove local evaluation plans that are deemed insufficient. This will add rigor to the process and ensure evaluation plans comply with the law.

New York City Expedited Appeals Process

The legislation also includes an expedited and streamlined appeals process for the New York City School District that becomes effective on January 17, 2013 if New York City and the UFT agree to an overall evaluation system.

Governor Cuomo announces adoption of a major pension reform plan

Governor Cuomo announces adoption of a major pension reform plan

Source: Office of the Governor

Contending that pension reform will save State and local governments, including New York City more than $80 billion over 30 years, New York Governor Andrew M. Cuomo announced the passage of a “Tier VI” pension reform plan that is expected to save state and local governments and New York City more than $80 billion over the next 30 years.


According to the Governor’s office, major elements in the legislation that creates this new pension plan include:

· New Employee Contribution Rates: Tier VI increases employee contribution rates in a progressive fashion to ensure lower paid state and local workers are not seriously affected. Employee contribution rates vary depending on salary:

o $0 - $45,000: 3%
o $45,000 - $55,000: 3.5%
o $55,000 - $75,000: 4.5%
o $75,000 - $100,000: 5.75%
o $100,000+: 6%

These rates remain substantially lower than the large majority of similar state systems around the country. The new tier impacts only newly hired employees. Existing employees and retirees retain all the benefits provided by their current Tier membership status.

· Increase of the Retirement Age: The pension reform includes an increase in the retirement age from 62 to 63 and includes provisions allowing early retirement with penalties. For each year of retirement prior to 63, employee pension allowances will be permanently reduced by 6.5%.

· Readjustment of Pension Multiplier: Under Tier VI, the new pension multiplier will be 1.75% for the first 20 years of service, and 2% starting in the 21st year. For an employee who works 30 years, their pension will be 55% of final average salary under Tier VI, instead of 60% under Tier V.

· Vesting: Under Tier VI, employees will vest after 10 years of service.

· Protect Local Governments From State Pension Sweeteners: The agreement requires the state to pre-fund any pension enhancers, ensuring that these costs are no longer passed to local governments.

· Adjustments to Final Average Salary Calculation to Help Reducing Pension Padding: The agreement changes the time period for final average salary calculation from 3 years to 5 years. To limit how much overtime can be used to determine an employee's pension, pensionable overtime for civilian and non-uniformed employees will be capped at $15,000 plus inflation, and for uniformed employees outside of New York City capped at 15% of base pay. Tier VI puts in place new anti-spiking measures which cap growth in salary used to determine pension allowances at 10% for all employees statewide. These reforms will take major steps toward addressing instances of abuse and pension padding. Tier VI also eliminates lump sum payments of unused sick and vacation time from the calculation of final average salary.

· Voluntary and Portable Defined Contribution Option: The legislation includes an optional defined contribution plan for new non-union employees with salaries $75,000 and above. In the modern economy, employees often change jobs multiple times and need pension portability. Many states, the federal government, and most private employers provide some form of defined contribution plans to their employees. The state will make an 8% contribution to employee contribution accounts. Currently, SUNY and CUNY offer such an option through TIAA-CREF that has been successful and popular. This is a voluntary option for those employees who prefer the portability and vesting feature not available with defined benefit options, and will help attract top talent to state government.

· Adjustments to SUNY/CUNY TIAA-CREF Plan: Under Tier VI, SUNY and CUNY employees who elect the TIAA-CREF plan will receive an employer contribution of 8% of salary for the first 7 years of service and 10% thereafter.

· Limiting Number of Sick and Leave Days that Can Increase Pensions: Tier VI reduces by half- from 200 to 100- the number of sick and leave days that can be used for retirement service credit.

· Salary Reform: Previous tiers allowed salaries from an unlimited amount of employers for calculating retirement benefits. Tier VI allows only two salaries for the calculation.

· Limiting Pension Benefit of High Paid Employees: For new higher paid employees, the amount earned above the Governor's salary (currently $179,000) will not be eligible for pension calculation under Tier VI. 

Employee’s petition seeking to annul the termination of his or her probationary employment dismissed as untimely

Employee’s petition seeking to annul the termination of his or her probationary employment dismissed as untimely

Zarinfar v Board of Educ. of the City School Dist. of the City of NY, 2012 NY Slip Op 01753, Appellate Division, First Department

Supreme Court denied Majid Zarinfar’s petition seeking a court order annulling the NYC Department of Education’s decision terminating his employment as a probationary teacher and directing the Department to reinstate him to his position with back pay and interest.

The Appellate Division affirmed Supreme Court’s dismissing Zarinfar’s petition as untimely, noting that it had not been brought within four months of the effective date of his termination.

The court, citing Frasier v Board of Educ. of City School Dist. of City of N.Y., 71 NY2d 763, also commented that “Even if the petition was timely, we would find that it was properly dismissed [as Zarinfar] has failed to establish that the termination, which was based on unsatisfactory ratings and his failure to make recommended improvements, was for "a constitutionally impermissible purpose, violative of a statute, or done in bad faith."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01753.htm