Employee found guilty of failing to comply with Department rules concerning absences for illness

Employee found guilty of failing to comply with Department rules concerning absences for illness

NYC Department of Sanitation v Kaplan, OATH Index #403/12

OATH Administrative Law Judge Kevin F. Casey sustained a number of disciplinary charges alleging that the employee failed to comply with Department rules with respect to absences on sick leave on several occasions.

The ALJ found that the employee had failed to provide required medical documentation a number of times, was AWOL once, and left his home without authorization three times while on sick leave.

Judge Casey, however, recommended the dismissal of five charges of absence from while on sick leave.

Notwithstanding the dismissal of five of the charges filed against the employer, Judge Casey, noting that he had been disciplined six times since 2000, including four times for a lack of medical documentation, recommended that the individual be suspended without pay for 53 days. 

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-403.pdf

A series of agreements providing for the distribution of a Retirement System member’s death benefit considered in determining the lawful beneficiaries

A series of agreements providing for the distribution of a Retirement System member’s death benefit considered in determining the lawful beneficiaries

Johnson v New York State & Local Retirement Sys. et al, 2012 NY Slip Op 01881, Appellate Division, Fourth Department

In this decision the Appellate Division sustained the Retirement System’s administrative ruling that Dane V. Johnson and Danika V. Johnson were to be paid Dan Johnson's New York State Employees' Retirement System's [NYSERS] death benefit.

Wendy Johnson and Dan Johnson had executed a matrimonial settlement agreement in the course of their divorce that required them to name their children, Dane V. Johnson and Danika V. Johnson as "joint irrevocable designated beneficiaries" of the death benefits provided by their retirement plans.

However, Dan, shortly before executing the matrimonial settlement agreement, had named his then girlfriend, Kimberly Leone-Johnson (Leone), as a one-third beneficiary of his NYSERS death benefit and each of his children as a one-third beneficiary. Leone was not removed as a beneficiary after the judgment of divorce was entered in May 1998 and, moreover, in June 1998 Dan designated Leone as the sole beneficiary of his NYSERS death benefit.

Subsequently Dan and Leone executed a prenuptial agreement and were married. This prenuptial agreement stated that Dan and Leone “expressly waived all rights and claims to each other's pensions and retirement plans” and later, still, they executed a separation agreement, which contained clauses that “reaffirmed the pension and retirement plan waivers contained in the prenuptial agreement and mutually released and waived all rights that [Dan] and Leone had to each other's estate”

Dan and Leone “allegedly reconciled without divorcing” just prior to Dan death. No beneficiary changes were made to Dan's NYSERS death benefit after Leone was allegedly named the sole beneficiary in 1998.

Following Dan’s death, however, the NYSERS notified Leone that Dan’s designation naming her as the sole beneficiary was invalid and that the System intended to disburse the death benefit to the children in accordance with Dan's March 1998 designation.

Wendy, Dane and Danika sued, seeking a court order designating the children, Dane and Danika, as the joint irrevocable beneficiaries of Dan's NYSERS's death benefit in compliance with the matrimonial settlement agreement and to remove Leone as a beneficiary.

Supreme Court determined that Leone and the children were each entitled to one-third of Dan's NYSERS death benefit notwithstanding Leone claim that the System erred in determining that the designation naming her as sole beneficiary was invalid.

The Appellate Division said that it agreed with Wendy, Dane and Danika that that Leone was not entitled to any part of decedent's retirement plan death benefit and reversed Supreme Court’s decision to the contrary.

The court explained that “The matrimonial settlement agreement clearly required [Dan] to name the children as the ‘joint irrevocable designated beneficiaries’ of his retirement plan death benefit.” Accordingly, said the court, Dan did not have the authority to name any other person as a partial or sole beneficiary of such death benefit.

Further, the Appellate Division held that Leone whatever right to such a benefit she would have acquired by virtue of being married to Dan “was waived by the prenuptial and separation agreements.”

Noting that Retirement and Social Security Law §803-a, provides that "the comptroller is hereby authorized ... to change or correct ...[a] beneficiary consistent with a subsequent order by a court of competent jurisdiction ...," the Appellate Division rejected Leone’s argument that the statute does not apply because it was not enacted until after Wendy and Dan divorced, ruling that. Wendy’s, Dane’s and Danika’s action against Leone was not dependant on the existence of that statute. Rather, said the court, §803-a “merely eliminated the need for the Legislature to pass a specific bill with respect to each case to achieve the same result,” citing the contents of the Bill Jacket for Chapter 300 of the Laws of 1999.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01881.htm

School employees ask the Commissioner of Education to remove members of the same family simultaneously serving on a school board from the Board

School employees ask the Commissioner of Education to remove members of the same family simultaneously serving on a school board from the Board

Appeal of Kevin Reis and Joseph R. Argus from action of the Board of Education of the Taconic Hills Central School District regarding conflicts of interest, Decisions of the Commissioner of Education, Decision #16,335

In this appeal Taconic Hills CSD employees Kevin Reis and Joseph R. Argus filed an application with the Commissioner of Education seeking the removal of Donald McComb, Robert McComb and George Lagonia, Jr. as board members and the removal of Donald McComb and George Lagonia, Jr. as varsity coaches.

§2103.3 of the Education Law provides that “ Not more than one member of a family shall be a member of the same board of education in any school district”

Reis and Argus filed an appeal with the Commissioner of Education contending that Board incumbents Robert McComb, a member of the Taconic Hills CSD Board of Education since 2007, Lagonia and Donald McComb (the brother of Robert McComb) board members since 2008, were serving in such capacities in violation of §2103.3.

Further, Reis and Argus claimed that Lagonia and Donald McComb were appointed to varsity coaching positions by the Board, which they accepted as volunteers.

Essentially Reis and Argus argued that Donald McComb and George Lagonia were ineligible to simultaneously hold positions as members of the board, citing §2103.3, and as to their serving as coaches for the district, they also violated General Municipal Law §801.* As a remedy, they asked the Commissioner to remove the three board members from their positions as members of the board and that the commissioner remove Donald McComb and George Lagonia from their coaching positions.

The board raised a number of procedural defenses, contending that the appeal and application must be dismissed for failure to state a cause of action and for failure to comply with the notice requirements of 8 NYCRR §277.1(b; that the petition and application were not properly served, and that Reis lacks standing to file the application and appeal. 

The Commissioner did not consider the merits of the allegations made by Reis and Argus, holding that “To the extent petitioners seek the removal of the individual respondents from the board, the appeal must be dismissed for failure to comply with §277.1 of the Commissioner’s regulations.”

The Commissioner explained that §277.1(b) requires that the notice of petition specifically advise a respondent that an application is being made for respondent’s removal from office.  In this case, petitioners failed to comply with §277.1(b), but instead used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310. 

A notice of petition which fails to contain the language required by the Commissioner’s regulations is fatally defective and does not secure jurisdiction over the intended respondent

In addition, the Commissioner said that “The appeal and application must also be dismissed for improper service upon the individual respondents and, as a consequence, for failure to join them as necessary parties,” pointing out that §275.8(a) of the Commissioner’s regulations requires that an appeal be commenced by personal service of a copy of the petition upon each named respondent or, “if a named respondent cannot be found upon diligent search, by delivering and leaving the same at the respondent’s residence with some person of suitable age and discretion, between six o’clock in the morning and nine o’clock in the evening, or as otherwise directed by the commissioner.”

Here, however, the Commissioner’s Office of Counsel did not authorize alternative service. Accordingly, said the Commissioner, no personal service was made on the individual respondents by means of the service attempted by Reis and Argus and thus they failed to obtain jurisdiction over them for this reason as well.

Turning to another issue, the request filed by the members of the board seeking “a certificate of good faith pursuant to Education Law §3811(1),” the Commissioner said that “Such certification is solely for the purpose of authorizing the board to indemnify the individual respondents for legal fees and expenses incurred in defending a proceeding arising out of the exercise of their powers or performance of duties as board members.”

Noting that it was appropriate to issue such certification unless it is established on the record that the requesting board member acted in bad faith, the Commissioner said in this instance “there has been no finding that the individual respondents acted in bad faith,” and certified “solely for the purpose of Education Law §3811(1) that they are entitled to receive the requested certificate.”

* §801of the General Municipal Law prohibits public officers and employees having a “conflicts of interest” in performing of certain official duties.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16335.html

Call “911” for assistance when an individual assaulted a fellow worker did not constitute misconduct under the circumstance

Call “911” for assistance when an individual assaulted a fellow worker did not constitute misconduct under the circumstance

NYC Human Resources Administration, OATH Index #314/12

OATH Administrative Law Judge Ingrid M. Addison found that the employee's calling 911 following a client's physical assault of an HRA security officer did not constitute misconduct.

However, the employee’s shouting at his director within the earshot of clients was misconduct.

Because the entire incident was tense and highly charged, and employee acted out of concern for his colleagues, Judge Addison recommended that the employee be suspended without pay for two days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-314.pdf

Audits of various municipalities recently issued by the State Comptroller

Audits of various municipalities recently issued by the State Comptroller

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audit:. Click on the name of the jurisdiction to download the PDF file of the audit report.

Commack Fire District

Glens Falls City School District

Patchogue–Medford Union Free School District

Silver Creek Central School District

Town of Chateaugay

Town of Concord

Town of Ghent

Town of Hartland and

Town of Tuxedo

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

New York Governor Cuomo announces agreements for the passage of an amendment to the Constitution and an enabling statutes to permanently reform the election redistricting process

New York Governor Cuomo announces agreements for the passage of an amendment to the Constitution and an enabling statute to permanently reform the election redistricting process

Source: Office of the Governor

On March 15, 2012 Governor Andrew M. Cuomo announced plans for the passage of a constitutional amendment and statutes that reforms the election redistricting process in New York State thereby "putting an end to the partisan and incumbent-protection Gerrymandering* that has plagued the process for over a century."


The Governor said that "This agreement will permanently reform the redistricting process in New York to once and for all end self-interested and partisan gerrymandering." The Legislature, Governor Cuomo reported, has agreed to pass “this historic constitutional amendment twice by a specified date, and passing a tough statute that mirrors the amendment” thus taking “a major step toward finally reforming the state's broken redistricting process.

The Office of the Governor reports that the agreement includes the following major components:


1. Constitutional Amendment: The Senate and the Assembly each agreed to introduce a resolution this session that will amend the state Constitution to establish a new redistricting process for both state legislative and congressional district lines. The separate statute discussed below requires the amendment to be passed a second time by both houses no later than January 30, 2013, at which point it will be placed on the ballot statewide for approval by the voters. The constitutional amendment will reform the redistricting process permanently beginning in the next cycle in 2020-22 as follows:

· The Independent Redistricting Commission. The constitutional amendment requires the appointment of an independent redistricting commission to draw the district lines, consisting of ten members: two appointees by each of the four legislative leaders and two appointees selected by at least five of those eight members. Neither of the latter two members shall have been enrolled members of either of the two major political parties in New York State in the last five years and at least one appointee made by either the assembly or senate minority leader must approve those two members. Accordingly, the commission's composition will ensure unprecedented and substantial roles in drawing the district lines for both the minority party conferences and for citizens who are not major party members.

The amendment further requires that the commission reflects "the diversity of the residents of this state with regard to race, ethnicity, gender, language, and geographic residence" and that the appointing authorities shall consult with organizations devoted to protecting the voting rights of minority and other voters concerning their appointments. The commission members must be registered voters in New York State, but shall not have been in the last three years (a) members of the state legislature or congress or a statewide official or the spouse of any of these elected officials, (b) a state officer or employee or legislative employee; (c) a registered lobbyist; or (d) a political party chairman. Together, these requirements will ensure that the commission's members are both independent, representative of the State's diverse communities, and sensitive to the critical importance to voters of fair and proper district lines.

· Commission Voting Rules to Ensure Independence and Curb Partisan Gerrymandering. To approve a districting plan, the independent redistricting commission requires the vote of at least seven of its ten members in support of the plan. If the speaker of the assembly and the temporary president of the senate are members of two different political parties, then the seven or more members who approve a plan must include at least one member appointed by the speaker of the assembly and one member appointed by the temporary president of the senate. If the speaker of the assembly and the temporary president of the senate are members of the same political party, then the seven or more members who approve a plan must include one member appointed by each of the four legislative leaders. This voting rule ensures that at least three members of the commission who were not appointed by the majority conferences in either house must approve a plan before it is sent to the legislature for a vote, a key barrier to partisan gerrymandering in the development of district maps.

· Commission Must Hold Extensive Public Hearings & Release Draft Plans with All Relevant Data Using Best Available Technology. To ensure greater transparency and public involvement, the amendment requires that the commission must hold numerous public hearings in specified cities and counties throughout the state and, prior to its first hearing, must make publicly available using the best available technology not only its draft plans but also all relevant data to facilitate public review and analysis of those plans, and the development of alternative plans. These provisions will create greater public transparency in the redistricting process and ensure that the commission's final districting plans reflect fully input from communities and individuals across the state.

· Iowa-Style Process for Legislature's Approval of Commission Plans Designed to Minimize Partisan Gerrymandering. After the commission's public hearings, the Legislature shall receive and approve or disapprove the commission's plans without amendment. If the commission's first plan is rejected, the commission must submit an amended plan, which must be voted upon by the legislature again without amendments. If the commission's second plan is also rejected upon such vote, each house may then amend that plan prior to approval except that such amendments must comply with the substantive principles set forth above and, pursuant to the statute being approved separately in conjunction with this resolution, cannot affect more than two percent of the population of any district in the commission's plan. This structure will provide strict restrictions on the legislature's changes to the commission's plans.

· Legislature's Voting Rules Designed to Protect Minority Conferences and Limit Gerrymandering. Special voting rules will govern each house's vote upon the independent redistricting commission's plans in order to protect the minority conferences in each house and ensure the integrity of the commission's plans by requiring approval by more than a majority of members under certain circumstances. If the Speaker of the Assembly and the Temporary President of the Senate are members of two different political parties, approval of a commission's redistricting plan shall require a vote in support of such approval by at least a majority of the members of each house. But if the Speaker and the Temporary President of the Senate are members of the same political party, then approval of a commission's redistricting plan shall require a vote in support of such approval by at least two-thirds of the members of each house. This rule will prevent in future decades the kind of one-party gerrymandering to suppress the minority party in a state that has plagued other states, like Texas, in the past.

· Substantive Criteria to Prohibit Partisan Gerrymandering and to Protect Minority Voting Rights and Communities of Interest. The commission's redistricting plans must be drawn according to principles that provide unprecedented restrictions on partisan gerrymandering, and new protections for the voting rights of racial and language minorities, and for existing communities of interest. In particular, the commission must consider whether district lines would result in the denial or abridgment of racial or language minority voting rights, no districts shall be drawn to have the purpose of, or result in, such denial or abridgement, and districts shall be drawn so that racial or language minority groups do not have less opportunity to participate in the political process than other members of the electorate and to elect representatives of their choice; districts shall not be drawn to discourage competition or for the purpose of favoring or disfavoring incumbents or other particular candidates or political parties; for the first time in the constitution, communities of interest must be considered in drawing district lines; districts shall contain as nearly as may be an equal number of inhabitants and any deviation in a district must be explained specifically by the commission; and districts shall be contiguous and as compact in form as practicable.

Together, these principles will provide for the first time strong and explicit restrictions on partisan gerrymandering, and protections in the constitution for minority communities beyond those contained in the federal Voting Rights Act which is facing increasing legal attacks in the courts.

· Judicial Review Provisions To Enforce Compliance With Independent Redistricting Process & Adherence to Substantive Principles. If the courts are called upon to review the district lines, this amendment requires that the court find such lines to be invalid in whole or in part if they are not in compliance with the procedural or substantive provisions of this article. Together with the other protections noted above, this provision will help to ensure that the district lines that are ultimately adopted reflect the independence, concern for minority voting rights, and attention to equal representation that the commission must provide.

2. Statute: The Senate and the Assembly each agreed to introduce a statute to be approved by both houses that mirrors the constitutional amendment in all respects except for two additional elements. As set forth in greater detail in the statute's effective date provisions, the statute is intended to ensure that, if the constitutional amendment is not passed for the second time in 2013 notwithstanding the public commitments by the two houses to do so, the statute will become effective and the redistricting process will be reformed by statute just as it would have been by constitutional amendment. These provisions further provide that if either house fails to pass the constitutional amendment a second time before January 30, 2013, then that house shall lose its appointments to the independent redistricting commission established by the statute and the governor will instead appoint those members. This provides a significant incentive for the legislature to honor their statutory commitment to pass the constitutional amendment a second time.


In addition, the statute further includes a restriction on any amendments made by the legislature to a districting plan submitted by the commission such that no amendment may affect more than two percent of the population of any district in such plan. This will ensure that the legislature's amendments may tweak, but cannot fundamentally alter the commission's district lines. It also provides more specific deadlines for each step of the redistricting process that are most appropriately placed in a statute rather than in the constitution. Critically, these additional provisions will be effective if the voters approve the constitutional amendment or if the statute instead becomes effective.

* Gerrymandering describes the effort to establish a political advantage for a particular party or group by manipulating geographic boundaries to create partisan or incumbent-protected districts. The practice was named after Massachusetts Governor Elbridge Gerry who, in 1812, signed a bill that rearranged Senate district lines to provide Jeffersonian Republicans with an advantage in the then upcoming Senatorial elections. 

Loss of employment by operation of law does not constitute an “adverse employment action” within the meaning of civil rights laws

Loss of employment by operation of law does not constitute an “adverse employment action” within the meaning of civil rights laws

Brown v. City of Syracuse, USCA, Second Circuit, Docket No. 10-0529-cv

Curtis Brown, an African-American former City of Syracuse police officer, was suspended with pay pending investigation of an incident and ultimately suspended without pay and terminated. *

Brown filed a civil rights complaint, contending that the City of Syracuse unlawfully discriminated against by treating him more severely than white officers who committed acts of an equal or more serious nature. 

The Circuit Court of Appeals, noting that Brown had subsequent guilty plea to certain criminal charge, ruled that he could not prove an “adverse employment action” for any of the measures taken by by the City after his guilty plea as his plea of guilty resulted in his automatic termination in accordance with New York Public Officers Law §30(1)(e).**.

Further, as a matter of law, the court ruled that Brown’s suspension with pay pending the investigation did not, under the circumstances, amount to an adverse employment action.

Citing Joseph v. Leavitt, 465 F.3d 87at 91, the Circuit Court explained that “administrative leave with pay during the pendency of an investigation does not, without more, constitute an adverse employment action” as “an employee does not suffer a materially adverse change in the terms and conditions of employment where the employer merely enforces its preexisting disciplinary policies in a reasonable manner.”***

Brown also claimed discrimination because he was deprived of “professional courtesy” that police sometimes extend to their fellow officers.

The Circuit Court disagreed, holding that his claim “fails under the rationale of Diesel v. Town of Lewisboro, 232 F.3d 92 (2d Cir. 2000), which held that a police officer was not entitled to the ‘professional courtesy’ of having his fellow police officers look the other way or otherwise work on his behalf to mitigate criminal charges.”

The Court of Appeals, after considering Brown’s other arguments, found them without merit and affirmed the District Court’s granting the City of Syracuse’s motion for summary judgment.

* On December 7, 2005, a disciplinary arbitrator reviewed Brown’s termination and found “just cause” existed to terminate Brown effective July 5, 2000.

** Public Officers Law §30(1)(e) provides that a public office becomes vacant upon the incumbent’s conviction of “a crime involving a violation of his oath of office" and a plea of guilty is deemed a conviction. Police officers are “public officers” with in the meaning of §30(1)(e).

*** N.B. The court, however, cautioned that it has “noted that our rule is not an absolute one, and that a suspension with pay may, in some circumstances, rise to the level of an adverse employment action.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/d7c9b26b-cefe-4365-9338-fef7922cb934/2/doc/10-529_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d7c9b26b-cefe-4365-9338-fef7922cb934/2/hilite/

Termination recommended as the penalty to be imposed on employee found guilty of theft of employer’s funds

Termination recommended as the penalty to be imposed on employee found guilty of theft of employer’s funds

NYC Department of Education v Hendricks, OATH Index #153/12

A custodian engineer [custodian] employed by the New York City Department of Education was charged with theft of funds from the custodial bank account, and fraud.

OATH Administrative Law Judge Ingrid M. Addison sustained the charges based on testimony from the director of school facilities, who was the custodian’s supervisor, an investigator with the Special Commissioner of Investigation for the New York City School District, and documentary evidence which included copies of checks drawn against the custodial account which the custodian had issued to himself and others.

Judge Addison found that the evidence established that the employee withdrew over $17,000 from the custodial bank account for non-school expenses, including tuition fees for his children’s private school, life insurance premiums and a political contribution. The evidence revealed that the individual had forged endorsements on checks and accepted kickbacks from others he had hired.

The employee, said the ALJ, also violated the Chancellor’s regulations and the City Conflicts of Interest Law by hiring and supervising his sister. ALJ Addison noted that the funds the custodian stole were intended to enhance the learning environment of children by ensuring that the school was safe and clean.

Because a custodian has unfettered access to the custodial bank account solely for those uses, the position demands someone whose honesty is beyond reproach and who is extremely ethical. Accordingly, for the proven charges, ALJ Addison recommended that respondent be terminated from his employment.  

The decision is posted on the Internet at:   

http://archive.citylaw.org/oath/12_Cases/12-153.pdf

Revised APPR Provisions New York State Teacher and Principal Evaluation 2012-13

Revised APPR Provisions New York State Teacher and Principal Evaluation 2012-13

Source: New York State Department of Education 

A Summary of revised APPR provisions captioned "New York State Teacher and Principal Evaluation 2012-13 and Beyond", and reflecting the anticipated changes resulting from enacting amendments to Education Law §3012-c proposed in February 2012 in the Executive Budget and the "Settlement of Litigation," has been posted on the Internet at:

http://engageny.org/wp-content/uploads/2012/03/nys-evaluation-plans-guidance-memo.pdf


N.B.: The posting states that "To the extent that the language in this memo differs from the regulatory language ultimately adopted to conform to the statute, the language in the Regulation controls."

Disclosing FMLA medical information to supervisors, human resource personnel and union representative

Disclosing FMLA medical information to supervisors, human resource personnel and union representative

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2011. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Joanne Holland was employed as a nurse at the Dallas Veterans Affairs Medical Center ("Dallas VA").  She requested FMLA leave for a variety of stress-related ailments incident to her filing an EEO complaint against her supervisor, Cathy Clellan.  Holland supported her request for FMLA leave with medical documentation.  Holland made the request to Associate Director of Patient Care Services Sandra Griffin.  Griffin notified Dallas VA personnel, including McClellan, of Holland's request for FMLA leave. 

Holland had asked that Griffin not be involved with her request for FMLA leave.  It was subsequently determined that Griffin, as her immediate supervisor, had to approve of Holland's request for FMLA leave.  Holland subsequently submitted her FMLA leave request to McClellan.  Griffen held two telephonic conferences with Holland and other members of the Dallas VA staff to discuss Holland's request, which was approved. 

Holland sued, alleging that the disclosure of her medical information to McClellan and other Dallas VA personnel violated the FMLA's medical confidentially requirements of 29 CFR 825.500(g).  In relevant part, the regulation states that "[r]ecords and documents relating to certifications, recertifications or medial histories of employees or employees' family members, created for purposes of FMLA, shall be maintained as confidential medical records."   The federal district court disagreed.

The court initially noted that it is not entirely clear whether an aggrieved individual can file a civil lawsuit for violation of the medical confidentially provisions.  Assuming, without deciding that a private right of action does exist, in awarding summary judgment in favor of the Dallas VA, the court found that Holland had failed to establish a violation.  While the Dallas VA did release and discuss her medical information supporting her request for FMLA leave, the court found that such disclosure fit within the regularly exception that "[s]upervisors and managers may be informed regarding necessary restrictions on the work or duties of an employee and necessary accommodations."  29 CFR 825.500(g)(1). 

The court noted that the discussion regarding Holland's FMLA leave request was limited to McClellan, Griffin, Mariamma Kurian, Holland's second-line supervisor, Holland's Human Resource representative, Chris Seaton, and Richard Shaw, Holland's union representative.  

Mr. Bosland comments:  The decision reminds employers that FMLA medical information is confidential and should be shared only with those individuals with a legitimate need to know.  In this case, the court found that the employer had the right to share Holland's FMLA medical information with her initial and second-line supervisors and a company human resource representative in order to consider her leave request. That is, these managers and supervisors had a legitimate reason for the information.  The limited exception allowing disclosure confidential FMLA medical information would not, for example, apply in the event one of these managers and supervisors were to share the information with a colleague as idle gossip.    

Interestingly, the decision included disclosure of Holland's medical information with her union representative.  As written, the exception to the medical confidentially provisions of the FMLA include "supervisors and managers," not union officials.  Unfortunately, the decision does not address whether the union official was part of the conversation at Holland's request, which would likely be construed as a limited waiver of the FMLA's confidentiality requirements.   

Query whether an employer could disclose confidential FMLA medical information to the union over the objection of an employee without violating the FMLA?  A union may have an independent contractual and legal right to be present at a management-employee interview, and to demand relevant information for purposes of a grievance and/or to "police" the collective bargaining agreement regardless of an employee's wishes. Because of the obvious Hobson's choice facing employers - of violating the FMLA, the CBA, or federal/state labor laws by releasing or not releasing requested medical information - courts will likely permit an employer to disclose FMLA medical information to the union provided such disclosure is required by the CBA and/or labor laws. 

Needless to say, employers should exercise great care when discoursing FMLA medical information to the union even where it is required.  While it likely can't be required as a condition, the employer might ask the union to sign a confidentiality provision prior to releasing the information.  Alternatively, the employer could provide the information with a memorandum emphasizing the highly confidential nature of the information being provided and the union's need to keep the information confidential.  The employer may also want to address how the information will be stored, returned or disposed of.  The union might tell the employer that is none of their business, but at least the employer is on record of addressing the issue in the event the matter results in a jury trial.   

The union receiving the information would be well-advised to treat FMLA medical information as highly confidential.  Simply tossing the information into an unsecured grievance file would likely be a "bad" move.  While a union's mishandling of FMLA medical information secured from an employer would not give rise to an FMLA violation, it may be the basis for a costly and embarrassing lawsuit on alternative grounds.  The proper handling of confidential employee medical information, including FMLA certifications, is an area where the union and employer should seriously consider reaching agreement. 

The decisions is Holland v. Shinseki, No. 3: 10-CV-00908 B (N.D. Tex.), https://ecf.txnd.uscourts.gov/cgi-bin/sHWo_PUbliC_DoC?2010cv0908-55