Appointing authority urged to permit employee terminated for cause to apply for a vested interest retirement

Appointing authority urged to permit employee terminated for cause to apply for a vested interest retirement

The police commissioner terminated a police officer after he was found guilty of official misconduct and violations of the Police Department Patrol Guide.

The Appellate Division annulled the commissioner’s action after dismissing certain specifications and remanded the matter the commissioner “for a determination of a new penalty on the remaining specifications.” Although the court found that there was no substantial evidence to prove the specifications that it had dismissed, it, in contrast, said that the “remaining specifications” were supported by substantial evidence.

However, the Appellate Division also said that “If the Commissioner sees fit to adhere to the penalty of termination,” the police officer "should be permitted to apply for a vested interest retirement."

Although the court acknowledged that the commissioner's penalty determination “is deserving of due deference,” it explained that it was also mindful of the fact that courts "cannot operate merely as a rubber stamp of the administrative determination if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all of the circumstances, as to be shocking to one's sense of fairness.”

Characterizing the police officer’s misconduct  “an aberration from his otherwise exemplary career over approximately two decades,” and that termination would work an extreme hardship on the officer’s innocent family, the Appellate Division, Judge Sweeny dissenting, concluded that “[u]nder these circumstances, even in light of the repellent behavior exhibited by [the officer], the deprivation of his retirement benefits is shocking to one's sense of fairness, citing the Pell Doctrine [Matter of Pell, 34 NY2d at 233].

N.B. The Administrative Code of the City of New York provides that an employee may forfeit his or her retirement allowance under certain circumstances. For example, Section 13-173.1 of the Administrative Code requires a sanitation member to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the member is not "in service" on that date, he or she forfeits his or her retirement benefits.The Court of Appeals addressed the provisions of Section 13-173.1 in Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804, decided with Barbaro v NYC Employees' Retirement System.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02787.htm

Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed

Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed

A court clerk was terminated by the town justice. The next day the town justice appeared at a special meeting of the Town Board to discuss the clerk’s termination and to request approval to hire a replacement court clerk.

The former town clerk then sued the town justice and the Town alledging that defamatory statements concerning her work and qualifications were recorded in the minutes of the Town Board’s special meeting and the minutes, that were later approved, were posted on the Town's Web site.*

Although the Appellate Division held that Supreme Court erred in dismissing the slander cause of action filed by the former court clerk against the town justice as untimely,** it held that the lower court had correctly determined that all of the statements the former court clerk alleged to be defamatory were either [1] opinion; [2] not directed at former court clerk; or [3] needed extrinsic facts to make them defamatory.

Thus, concluded the court, Supreme Court “correctly determined that the statements were not defamatory as a matter of law” and dismissed the complaint.

* See Public Officers Law §106

** The Appellate Division observed that if the town justice was acting solely on his or her own behalf, the Town would not be liable for his or her actions and the CPLR §215[3]’s one-year statute of limitations would apply to the cause of action. In contrast, if the town justice was acting within the scope of his or her employment with the Town, the Town may be liable for his or her conduct and would thus be the real party in interest; and under those circumstances the provisions set out in General Municipal Law §50-i would control.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02546.htm

Some procedural defects that bar the vacating of the arbitrator’s award

Some procedural defects that bar the vacating of the arbitrator’s award
Beals v New York City Transit Authority, 2012 NY Slip Op 02784, Appellate Division, First Department

The Beals decision by the Appellate Division, First Department, sets out a number of procedural defects that defeated the employee’s efforts to vacate an adverse arbitration award.

First, said the Appellate Division, the arbitrator “properly declined” to apply the collective bargaining agreement's statute of limitations for filing disciplinary charges as, pursuant to its terms, the statute of limitations did not commence to run while an investigation of the conduct leading to the disciplinary charges against employee was under way. Further, said the court, “any error by the arbitrator in interpreting the facts or applying the law on this issue did not provide a basis for vacatur of the award.”

Other procedural defects noted by the Appellate Division barring granting the employee’s petition seeking to the vacate the award in this instance included:

1. An individual waives his or her claims that the arbitrator should have enforced his or her witness subpoenas by failing to seek a stay of the arbitration and a court ruling compelling compliance and by continuing with the arbitration;

2. An arbitrator's erroneous evidentiary rulings with may support vacatur only if the evidence would have been pertinent and material; and

3. The employee’s failure to cite any provision in the collective bargaining agreement to support his or her contention that the arbitrator exceeded a restriction on his or her power.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02784.htm

Failure to fully comply with the procedures required by the Commissioner’s regulations when filing a notice of petition is a fatal jurisdictional defect

Failure to fully comply with the procedures required by the Commissioner’s regulations when filing a notice of petition is a fatal jurisdictional defect

This ruling by the Commissioner of Education again illustrates the fact that the failure to strictly comply with the filing requirements set out in Commissioner’s regulation will preclude the Commissioner’s considering the merits of the petition or appeal. 

Petitioners had withdrawn one aspect of their appeal, conceding that it was moot.

The School District then asked the Commissioner to dismiss the “surviving” elements of their petition, which sought the removal of a member of the school board. The school board contended that these claims should be dismissed because the petitioners had failed to include the notice required by 8 NYCRR §277.1(b) in such cases in their petition.  

The Commissioner agreed, ruling that the application seeking the removal of a school board member “must be dismissed because the notice of petition is defective.”

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

  

The bottom line: A notice of petition which fails to contain the language required by the Commissioner’s controlling regulation is fatally defective and does not secure jurisdiction over the intended respondent.

The Commissioner’s decision, Decision #16,346, is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16346.html

From the Office of New York State Comptroller Thomas P. DiNapoli

From the Office of New York State Comptroller Thomas P. DiNapoli
Audits and reports issued during the period April 9 - 15, 2012 

DiNapoli: Audit Reveals Alleged Procurement Improprieties at SUNY Downstate Medical Center

An audit spurred by anonymous tips revealed fake bids for construction contracts and other procurement problems at SUNY Downstate Medical Center, according to New York State Comptroller Thomas P. DiNapoli. Findings of the audit have been referred to the Joint Commission on Public Ethics.


NYSHIP Contractors Wasting Millions in Taxpayer Money

The New York State Health Insurance Program erroneously paid as much as $11 million for special items such as implants, drugs and blood and evaluation procedures that were not performed according to two audits released Wednesday by State Comptroller Thomas P. DiNapoli.


Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced this week the following audits have been issued: the Department of Health and the Office of Children and Family Services.


DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: the Village of Amityviller; the Village of Bloomingburg; the Carl Place Garbage District; the Town of Copake; the Town of Galway; and, the Massapequa Fire District.

Use of hearsay evidence in an administrative disciplinary action

Use of hearsay evidence in an administrative disciplinary action

Does hearsay evidence constitute “adequate evidence” for the purposes of sustaining disciplinary charges? In this action the Appellate Division found that it did.

Hearsay evidence, said the court, can be the basis of an administrative determination and, “if sufficiently probative, it alone may constitute substantial evidence," citing Matter of Café La China Corp. v New York State Liq. Auth., 43 AD3d 280, quoting Matter of Gray v Adduci, 73 NY2d 741. According, said the court, a hearing officer could base his or her finding the individual guilty of the charges on such hearsay evidence.

The standard applied by the Appellate Division: Education Law § 3020-a (5) provides that a court's review of an application to vacate or modify the decision of a hearing officer is limited to the grounds set forth in CPLR 7511, the provision pertaining to review of arbitrators' awards. It is now established, however, that, because §3020-a hearings are compulsory, the hearing officer's "`determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78.'"

However, in this instance, although the hearing officer’s finding that the employee was guilty, the Appellate Division ruled that the penalty imposed, termination, had to be vacated and the matter remanded to a different hearing officer for the imposition of the penalty to be imposed “on the basis of the administrative record of the hearing.”

The court said that “It is a fundamental principle of due process that ‘`no person may lose substantial rights because of wrongdoing shown by the evidence but not charged, [and where that principle is violated,] prejudice will be presumed.`"

Accordingly, said the Appellate Division, the Hearing Officer's decision imposing the penalty of termination cannot stand, because it appears to be based, in significant part, on evidence of wrongdoing that was not charged.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_50606.htm

Administrative Law Judge rules that the Civil Service Law does not give the employer the authority to discipline an employee for alleged misconduct that occurred before he or she was employed

Administrative Law Judge rules that the Civil Service Law does not give the employer the authority to discipline an employee for alleged misconduct that occurred before he or she was employed

OATH Administrative Law Judge Faye Lewis, citing Umlauf v. Safir, 286 A.D.2d 267, noted that it was error for the employer to attempt to terminate an employee for alleged pre-hiring misconduct as the authority with respect to such alleged pre-hiring conduct is “statutorily vested in the head of the New York City Department of … Citywide Administrative Services” pursuant to Civil Service Law §50(4).

§50(4) permits the “appropriate municipal commission” to “investigate the qualifications of an eligible after he [or she] has been appointed from the list, and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... may revoke such eligible’s certification and appointment and direct that his [or her] employment be terminated.”

Other issues considered by Judge Lewis in making her determination included the applicability of §160.50 of the Criminal Procedure Law to the admissibility of certain exhibits in the course of the administrative disciplinary action; the crimes exception to the statute of limitations set out in §75 of the Civil Service Law; and the admissibility of certain statements that the employee made to NYC Department of Investigation personnel that the employee’s attorney contended were obtained in violation of the employee’s constitutional rights.

Ultimately Judge Lewis found the employee guilty of other disciplinary charges and recommended the penalty of dismissal “despite [the individual’s] lack of prior disciplinary history.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2571.pdf

State Department of Education’s advisory addressing changes in Education Law §3020-a effective April 1, 2012

State Department of Education’s advisory addressing changes in Education Law §3020-a effective April 1, 2012 

Source: SDE Office of Teaching Initiatives

As part of its 2011 legislative agenda, the Board of Regents sought a number of modifications to the tenured teacher hearing process set forth in Education Law §3020-a to address spiraling costs and the extraordinary length of time to conduct hearings. This legislation was introduced in the Assembly and Senate.* The Governor’s proposed 2012-13 State Budget included some of these reforms and the State Budget as adopted by the Legislature included a number of important programmatic and fiscal reforms.

The purpose of this memorandum is to clarify and provide guidance on the major changes set forth in Education Law §3020-a.  The Department is reviewing these changes and will make conforming amendments to the regulations to implement the law.  The Department will also be updating TEACH (a web-based data information system) to allow for greater access to case information and relevant dates.  During this transitional period, the Department thanks all affected parties in advance for their patience and cooperation as we work together to ensure successful implementation of the new Education Law §3020-a reform measures.

    

Below is a summary of the major Education Law §3020-a revisions.  For specific guidance, please refer to the actual statutory language, a copy of which is posted on the Internet at:

Education Law §3020-a Changes (Effective April 1, 2012) .

Effective Date

The change set forth in the amendments to Education Law §3020-a take place immediately and apply to all charges against tenured educators filed with the clerk or secretary of the school district or employing board on or after April 1, 2012. 

All affected parties should be aware of this effective date and are strongly advised to carefully review these changes and how they may affect any cases currently in progress or those that are anticipated.

The parties are strongly encouraged to develop the necessary tracking systems to ensure that responsibilities are carried out in a timely and professional manner, so that no party is unduly penalized by the very stringent timelines set forth in the statute.

Prohibition on Introduction of Evidence After 125 days

A significant change is the prohibition on the introduction of evidence more than 125 days after the filing of charges unless there are extraordinary circumstances beyond control of the parties set forth in Education Law §3020-a(3)(c)(vii).  Proceedings under §3020-a have traditionally taken far too long to resolve and this provision is designed to ensure timely resolution by prohibiting the introduction of evidence beyond a certain point in the proceeding.  This means that once the charges are filed, all parties should work expeditiously and cooperatively to complete the case in a timely manner so that cases are resolved within the statutory timeline of 125 days after the filing of charges. 

After 125 days no additional evidence shall be accepted unless there are extraordinary circumstances beyond control of the parties.  The “extraordinary circumstances” rule was meant to provide for that rare occasion when evidence truly could not be introduced in a timely manner.

The Department anticipates that modifications to TEACH will help the parties easily identify the relevant dates.  Until that time, arbitrators are expected to closely monitor the relevant dates and ensure adherence.

Department Selects Arbitrator When Parties Can Not Agree

The new amendments also modify the manner in which an arbitrator is selected if the parties fail to agree on an arbitrator selection within 15 days of receipt of the list.  Education Law §3020-a(3)(b)(iii) states that  “[i]f the employing board and the employee fail to agree on an arbitrator  to serve as a hearing officer from the list of potential hearing officers, or fail to notify the commissioner of a selection  within  such  fifteen day  time  period, the commissioner shall appoint a hearing officer from the list.”  This provision authorizes the Commissioner to select the arbitrator if the parties fail to agree by the 15th day.  It does not apply to NYC where there is an alternative procedure. 

Historically, the Department only intervened when notified of the failure to agree, however, the amended language does not require the Commissioner to wait until notification of the failure to agree.  The Commissioner will be authorized to select an arbitrator if no selection is affirmatively made by the 15th day. 

To ensure that all parties get proper notice of the list, the Department will continue its current practice of emailing the list of potential arbitrators to the school attorney and the employee attorney, if one has been designated by the employee.  Where no attorney is provided by the employee, the list will be sent directly to the employee. 

A hearing officer selection will be considered timely, if it is emailed to the dedicated tenure email box (TENURE@mail.nysed.gov) by the close of business on 15th calendar day. 

To minimize any potential delays that may occur at the school district level, the American Arbitration Association (“AAA”) has agreed to directly bill the school district for the production of the arbitrator list.  Schools are strongly encouraged to send the charges to the Department immediately without a check to AAA and make payment arrangements directly with AAA after the compilation of the list. AAA will take payment in the form of check or credit card for the $150 fee. 

Department Can Establish Maximum Arbitrator Rates and Study Hours

An amendment to Education Law §3020-a(3)(b)(i)(B) requires the Commissioner to establish a schedule for “maximum rates of compensation of hearing officers based on customary and reasonable fees for service as an arbitrator and provide for limitations on the number of study hours that may be claimed” (emphasis added).  The purpose of this amendment was to give the Commissioner the authority to control costs. 

Over the next several weeks, the Department will be conducting an analysis to determine both the appropriate rates and the maximum number of study hours for these types of proceedings.  Once the analysis is complete, the Commissioner will be establishing guidelines for arbitrator fees and study hours. 

All new arbitrator appointments will be contingent upon accepting the new maximum fee and study hour rates established by the Commissioner.

It is anticipated that the new TEACH modifications will incorporate changes in the manner in which arbitrator invoices are filed with the Department, to permit online filing to ensure accuracy, and improve the time it takes to process payments.

Department Can Exclude Arbitrators For Untimeliness

Pursuant to Education Law §3020-a(3)(c)(i)(B) the Department is authorized to monitor and investigate a hearing officer’s compliance with the timelines set forth in the statute. 

The Commissioner may exclude any hearing officer who has a record of continued failure to commence and conclude hearings within the timelines prescribed in the statute.

The Department anticipates that modifications to TEACH will help the parties easily identify the relevant dates.  Until that time, the Department will monitor manually. 

New Technology for Recording Hearings is Allowed

Education Law §3020-a(3)(c)(i)(D) continues the requirement that an accurate “record” of the proceedings be kept at the expense of the Department and furnished upon request to the employee and the board of education.  The statutory changes, however, permit the Department to take advantage of any new technology to transcribe or record the hearings in an accurate, reliable, efficient and cost effective manner. 

The Department will explore other cost-effective alternatives to recording and producing transcripts for these proceedings, however, there will be no immediate change to the manner in which these hearings are recorded.

Appropriation For New Cases

In order to ensure that the new reforms are successful, the law provides that any claims for cases in which charges were filed after April 1, 2012 be paid first out of the funds appropriated for the 2012-13 fiscal year pursuant to Education Law §3020-a(3)(b)(i)(A).  Total spending for 2012-13 is limited to $3.8 million.

This amendment will ensure that the Department is able to make timely payments for services rendered for new cases under the new system during 2012-13.  Thus arbitrators who accept cases under the new system with the new time constraints will be reimbursed for their services in a timely manner.  Any funds remaining will be used to pay for claims on cases that had charges filed prior to April 1, 2012. 

One Year limitation on Claims

Education Law §3020-a(3)(d) imposes a one-year limitation, following the final disposition of the hearing, for the submission of claims for reimbursement for services rendered.  The purpose of this amendment was to encourage timely submission of claims so that accurate budget assumptions can be made and claims can be paid for in a reasonable time. 

New Forms   The Education Law §3020-a forms are in the process of being updated.  It is imperative that schools use the updated forms for any cases commenced under the new system because they will reflect the new changes and provide critical information necessary to expedite the administrative steps for opening of cases and the appointment of the hearing officer.  It is anticipated that the new forms will be available within a week.  Please refer to: Teacher Tenure Hearing (3020a) for further information.

Questions

If you have any questions please contact Deborah A. Marriott, Director, Office of School Personnel Review and Accountability at 518-474-3021 or send an email to her attention at TENURE@mail.nysed.gov.

* See Chapter 57 of the Laws of 2012 for the text of the bill.

The changes are posted on the Internet at:

Education Law §3020-a Changes (Effective April 1, 2012)  =================== The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.  =======================