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

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

Issued during the week of July 30 - August 5, 2012 [Click on the caption to access the full report]

DiNapoli: Special Education Contractor Bilked Taxpayers Out of $2.6 Million

IncludED Educational Services, a Cedarhurst–based provider of special education services, inappropriately charged New York City’s Department of Education and others more than $2.6 million over a two–year period, including more than $850,000 in salaries paid to the sons and other relatives of its executive director, according to an auditreleased Wednesday by State Comptroller Thomas P. DiNapoli. The findings have been referred to the Manhattan District Attorney’s Office.

DiNapoli: Auditors Block $1.4 Million in Improper Unemployment Insurance Payments

State Comptroller Thomas P. DiNapoli prevented $1.4 million in inappropriate unemployment insurance payments or payment requests by the Department of Labor, including to recipients that were employed, deceased or unauthorized to work in the United States, according to a reportreleased Tuesday. The Comptroller’s Office also found nearly $1 million in improper payments, which had already been paid.

DiNapoli: Local Governments Facing New Fiscal Reality

The Office of the State Comptroller has released a reportentitled New Fiscal Realities Challenge Local Governments, which is now available on our website. This summarizes 60 audit reports released in fiscal year 2011–12 that identified local governments with inaccurate budgeting practices. The report also summarizes 23 budget reviews that OSC completed during the same time period. The report outlines the Comptroller’s commitment to ensuring that local officials develop budgets that provide transparency and accountability to taxpayers. The report can be accessed on the OSC website at http://www.osc.state.ny.us/localgov/pubs/fiscalrealities2012.pdf.

DiNapoli: MTA Gave Apple Inside Advantage For Grand Central Terminal Lease

The Metropolitan Transportation Authority (MTA) slanted a supposedly competitive process to fill prime retail space in Grand Central Terminal in Apple’s favor, according to an auditissued Monday by New York State Comptroller Thomas P. DiNapoli. Auditors and investigators found that the MTA worked exclusively with Apple behind the scenes on a lease for more than a year before issuing a request for proposals that resulted in only one response — from Apple.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the following audits: the Town of German; the Town of Hurley; the Town of Ridgeway; Washington County; and, the Westfield Volunteer Fire Department.

An appeal to the Commissioner of Education must comply with all precedural requirements set out in the relevant Regulations of the Commissioner

An appeal to the Commissioner of Education must comply with all precedural requirements set out in the relevant Regulations of the Commissioner

Appeal of R.F. and D.F., on behalf of their son R.F., from action of the Board of Education of the East Meadow Union Free School District, Decisions of the Commissioner of Education, Decision #16,369

In this pro se appeal, R.F. and D.F. [the parents] appealed the suspension of their child, R.F., and asked the Commissioner to remove the Superintendent and the Board President from their respective positions.

The Commissioner denied the parents’ appeal on the merits but addressed a number of procedural matters that should be noted.

The School District contended that the appeal should be dismissed because the petition filed by the parents:

1. Failed to state a claim upon which relief may be granted;

2. Failed to join necessary parties; and

3. Was not verified. 

The School District also objected to parents’ response to its memorandum of law. On this point the Commissioner said: “Although labeled ‘Reply,’ it is unclear whether [the parents] intend this document to be a reply or reply memorandum of law …to the extent this ‘Reply’ was intended as a reply, it is untimely, because the parents failed to serve it within 10 days after service of the school district’s answer in accordance with §275.14(a) of the Commissioner’s regulations.”

 

If, however, the “Reply” was intended as a reply memorandum of law, the Commissioner pointed out that a reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings and may be accepted only with the prior approval of the Commissioner, citing 8 NYCRR §276.4.  Although the Commissioner said that the parents had “apparently contacted my Office of Counsel prior to their submission, it fails to comply with §276.4 of the Commissioner’s regulations pertaining to memoranda of law, or with §276.5 pertaining to additional affidavits, exhibits and other supporting papers.”

 

Accordingly, said the Commissioner, “I have not considered it.”

The School District also contended that the appeal must be dismissed because the petition is not verified.  8 NYCRR §275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  In the event a petition is not properly verified, the appeal must be dismissed.

The Commissioner, noting that the parents’ petition that was filed with his Office of Counsel included the required verification, ruled that dismissal on that basis is not warranted.

Turning to that portion of the parents’ appeal that challenged their child’s suspension from school and seeking to expunge any report of the incident from his school record, the Commissioner said that he will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest. As the child had already “served the suspensions and returned to school,” that aspect of the appeal, said the Commissioner, was moot.

However, said the Commissioner, to the extent that parents seek expungement of the incident from their child’s school record, that aspect of the appeal survived.

As to the parents’ seeking the removal of the Superintendent and the Board President, the Commissioner said that their application must be denied for failure to join necessary parties, i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

“Joinder” requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Turning to the requirement that the appropriate parties must be served with the necessary papers, the Commissioner noted that the parents had “served only the district by personally serving the Superintendent’s secretary and … a member of the board.” As neither the Superintendent nor the Board President was personally served with a copy of the notice of petition and petition, the Commissioner ruled that the parents’ “removal application must be denied.”

Further, said the Commissioner, there was another basis for denying parents’ application for removal: the notice of petition was defective.  8 NYCRR §277.1[b] requires 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. The parents, however, had failed to give such notice and, instead, used the notice prescribed under 8 NYCRR §275.11(a) for appeals brought pursuant to Education Law §310. 

A notice of petition that fails to include the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondents.

Finally, the Commissioner noted that “A petition to the Commissioner is required to set forth the allegations in numbered paragraphs, be typewritten and double spaced, citing 8 NYCRR §275.3[c].  Although a liberal interpretation of these rules is appropriate where petitioners are pro se and there is no prejudice to respondent, the Commissioner noted that the parents’ lack of adherence to the regulations “has obfuscated their contentions.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16369.html

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer

Snead v Village of Spring Valley, 2012 NY Slip Op 05749, Appellate Division, Second Department

Supreme Court dismissed a petition filed pursuant to Article 78 of the Civil Practice Law and Rules challenging the determination of the Village of Spring Valley Justice Court dismissing the individual from her position, noting that the Justice Court had adopted the findings and recommendation of the disciplinary hearing officer.

The Appellate Division affirmed the Justice Court’s action, noting that the alleged misconduct, falsification of public records, and insubordination, was supported by “substantial evidence adduced at the administrative hearing.”

In addition, the court held that “in light of the charges and the [employee’s] duties, the penalty imposed was not so disproportionate to the offenses as to be "shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law, citing Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05749.htm

Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim

Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim
Murphy v City of New York, 2008 NY Slip Op 31926(U), Supreme Court, New York County, Docket Number: 0106059/2006, Judge: Karen Smith [Not selected for publication in the Official Reports.]

Judge Smith said that “the privilege of absolute immunity is bestowed upon an official who is ‘a principal executive of State or local government or is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension,'" and that this privilege “extends to those of subordinate rank who exercise delegated powers,” citing Firth v State of New York, 12 AD3d 907, lv to appeal denied, 4NY3d 709 and Ward Telecom. & Computer Services v State of New York, 42 NY2d 289.

In Firth, the New York Office the State Inspector General ”) was found to be cloaked with absolute immunity, where it had conducted an investigation of the Department of Environmental Conservation’s Law Enforcement Division and its subsequent report, allegedly containing defamatory statements about the Division’s former director, was later published on the Internet.

Among the most common situations where the issue of privilege is raised are those involving the employee alleging that internal communications between administrators or between an employee and an administrator concerning the worker contains defamatory statements. Murphy v Herfort, 428 NYS2d 117, is an example of litigation resulting from communications between administrators; Missek-Falkoff v Keller, 153 AD2d 841, is an example of a case where one employee sued another because of the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker.

This issue may also arise in connection with an employee's former employer supplying information to a prospective employer of the individual in response to a request for "references" (see Buxton v Plant City, 57 LW 2649). Unless malice is shown, the courts usually dispose of such a case by applying the doctrine of "qualified immunity."

In Tulloch v Coughlin, 50 F.3d 114, the US Circuit Court of Appeals, Second Circuit, considered the differences between “absolute immunity” and “qualified immunity.”

The difference is significant. Absolute immunity completely insulates an individual from civil law suits. In contrast, a qualified immunity protects the individual from liability only where the individual did not violate a person’s "clearly established" right.

Performing tasks that are a reasonable outgrowth of an employee’s in-title work does not constitute “out-of-title” work

Performing tasks that are a reasonable outgrowth of an employee’s in-title work does not constitute “out-of-title” work

Scarsdale Assn. of Educ. Secretaries v Board of Educ. of Scarsdale Union Free School Dist., 53 AD3d 572

The Scarsdale Association of Education Secretaries filed a petition pursuant to CPLR Article 78 seeking a review of a determination of the Scarsdale Union Free School District that assigning certain employee security responsibilities did not constitute "out-of-title" work within the meaning of the Civil Service Law. Supreme Court dismissed the Association’s petition and the Appellate Division affirmed the lower court’s ruling.

The Association sued the School District as a result of its implementation of a "single point of entry system" in each of its elementary schools. In order for a visitor to enter the building, he or she had to go to the school's main entrance, which was monitored by a video camera, and ring a doorbell. Some of the secretaries and typists working at the schools were assigned the responsibility of granting the visitors access to the schools. This required the employee to look at a monitor, see that a visitor wanted to come inside, and press a "buzzer" to remotely unlock the door to the main entrance.

Subsequently the District required some secretaries and typists to provide contractors working inside school buildings with identification badges. The secretaries and typists claimed that these new responsibilities were not required by their job descriptions and thus constituted "out-of-title" work within the meaning of Section 61.2 of the Civil Service Law.

The Appellate Division agreed that Civil Service Law §61(2) prohibits out-of-title work except during an emergency situation but noted that “work is not considered out-of-title if it is related to, similar in nature to, or a reasonable outgrowth of, the employee's ‘in-title’ work,“ citing Healy v County of Nassau, 18 AD3d 873.

In this instance the court decided that ”the directives requiring the secretaries and typists involved to use the surveillance monitors and buzzers to admit visitors, and to supply contractors with identification badges, constituted a reasonable outgrowth of their “in-title” work. In particular, the court noted that the job description for the typists included "receiv[ing] visitors, ascertain[ing] their business and direct[ing them] to appropriate staff members."

As to the secretaries, the Appellate Division said that their job description included "a considerable amount of contact with the public."

The court decided that fact that these tasks overlap job responsibilities “set forth in the job specifications of the schools' security workers” does not mandate the conclusion that the secretaries and typists assigned to perform these tasks are performing out-of-title work.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_06291.htm

A disciplinary settlement agreement in which the appointing authority waived the right to bring certain charges against an individual bars the appointing authority from subsequently bring charges based on the same event[s] or omission[s]

A disciplinary settlement agreement in which the appointing authority waived the right to bring certain charges against an individual bars the appointing authority from subsequently bring charges based on the same event[s] or omission[s]

Matter of Board of Educ of The Unadilla Val. Cent. Sch. Dist., 2012 NY Slip Op 05779, Appellate Division, Third Department

The Unadilla Valley Central School District appealed Supreme Court’s denial of its Article 75 petition to vacate an arbitration award.

The school district and one of its educators entered into a "settlement agreement" whereby:

1. The educator agreed to a retroactive suspension without pay, to a reassignment, to discontinue coaching school sports, and to the placement of a letter of reprimand in his personnel file in which he admitted that he had engaged in misconduct and conduct unbecoming a teacher; and

2. The school district agreed not to bring disciplinary charges pursuant to Education Law §3020-a agaisnt the educator "with regard to any of the matters involved in the investigation," but retained the right to bring disciplinary charges "alleging incompetency based upon the results of the Education Law [§]913 examination."*

The educator submitted to a §913 examination and the school district then filed disciplinary charges against the educator pursuant to Education Law §3020-a(1) alleging that the educator was “unfit to perform the job duties of a teacher" and suspended him with pay pending a hearing on the charge.

Ultimately the Hearing Officer issued a written decision concluding that the school district had failed to meet its burden of establishing that the educator was unfit to teach and dismissed the charge. The school district filed a petition pursuant Article 75 of the CPLR to seeking to vacate the arbitration award, which petition was denied by Supreme Court.

The Appellate Division affirmed Supreme Court’s ruling, explaining that judicial review of and authority to vacate a hearing officer's determination of disciplinary charges against a tenured teacher is limited to the grounds set forth in CPLR 7511(b)(1), including acts in excess of the arbitrator's power [and citing City School District of New York v McGraham, 17 NY3d 917] [w]here, as here, parties are subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny — it 'must have evidentiary support and cannot be arbitrary and capricious.'"

The school district had argued that the medical testimony established the educator's unfitness to teach, and the Hearing Officer's determination to the contrary is irrational and arbitrary and capricious.

Initially, said the Appellate Division, the Hearing Officer properly declined to sustain the charge based upon  the educator’s conduct as disclosed in the pre-settlement investigation given that in the agreement, the school district had "explicitly waived the right to bring charges with regard to any of the matters involved in the investigation." In contrast, said the court, the school district retained the right to pursue charges based upon the results of the Education Law §913 medical examination.

Although the educator’s prior underlying inappropriate conduct was certainly relevant to that charge and properly considered by all of the testifying medical experts in their assessments of his condition, the Appellate Division ruled the prior conduct could not, by itself, meet school district's burden of proof on the charge.

Further, said the Appellate Division, “the evidence regarding [the educator’s] underlying conduct did not authorize the Hearing Officer to impose discipline in the absence of a finding of guilt on the charge.” 

In contrast, if the school district had initially believed, based upon the results of the investigation, that the educator was unfit to teach, it could have pursued disciplinary charges pursuant to Education Law §3012(2)(a) or (b), premised upon the disclosed underlying conduct. It elected not to do so and, instead, waived the right to bring such charges in the settlement agreement and retained the educator as a tenured teacher in exchange for certain concessions from him.

On the merits, said the Appellate Division, Supreme Court properly confirmed the arbitration award dismissing the charge. Contrary to the school district's contentions, the arbitrator's award did not violate public policy so as to have "exceeded his power" nor was it irrational.

Given the hearing officer’s conclusion that the school district had failed to prove the sole charge presented, the court opined that “it certainly cannot be a violation of public policy to decline to impose a penalty or to require counseling or supervision” under these circumstances.

The Appellate Division then ruled that “As a result of the school district’s decision to enter into an agreement waiving a myriad of appropriate disciplinary charges of general unfitness to teach — such as neglect of duty, immoral character or conduct unbecoming a teacher, the charge before the Hearing Officer was limited to unfitness to teach by reason of a mental condition or disability." As the Hearing Officer rationally concluded that this charge was not proven, the Appellate Division affirm Supreme Court's order denying the school district's application to vacate the award.” 

On another point, the Appellate Division noted that Supreme Court had granted the educator's request for “an anonymous caption.” The Appellate Division pointed out that while the educator was entitled to request a private hearing on the disciplinary charges, there is no provision requiring anonymity on judicial review of an arbitration award on such charges.

* §913 authorizes the “Medical examinations of teachers and other employees,” such examination to be conducted by the individual’s personal physician or by a physician designated by the appointing authority.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05779.htm

New application filing period for all State promotion, transition, and open-competitive examinations

New application filing period for all State promotion, transition, and open-competitive examinations

New York State Department of Civil Service General Information Bulletin No. 12-03

New York Civil Service Department Director of Staffing Services Blaine Lynch has advised that the Department is implementing new filing periods for State civil service examinations commencing in Fall 2012.

The new application filing period will be 30 days for all promotion, transition, and open-competitive examinations.

This change is reported in General Information Bulletin No. 12-03 being distributed to State Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers.

The change is designed to allow the Department “to maintain a timely, high quality application review and to improve the efficiency of its test production schedule, while ensuring candidates have a sufficient and reasonable time in which to file an application for an examination.”

Bulletin No. 12-03 is posted on the Internet as a PDF file at:

http://www.cs.ny.gov/ssd/pdf/GIB12-03.pdf