Naming all necessary parties is critical to Commissioner of Education's considering the merits of an appeal

Naming all necessary parties is critical to Commissioner of Education's considering the merits of an appeal

Appeal of the Islip Teachers Association, Decisions of the Commissioner of Education, Decision #16,418

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The Islip Teachers Association, the collective bargaining organization representing teachers employed by the Islip Union Free School District, filed an appeal with the Commissioner of Education alleging that the Islip UFSD violated the shared decisionmaking requirements in §100.11 of the Commissioner’s regulations [8 NYCRR 100.11] by refusing to invoke the conflict resolution procedures in its “shared decisionmaking plan” [the Plan] to resolve issues involving the interview and selection process for the high school assistant principal, high school English Department Chairperson, and English teacher leave replacement positions.

The school district asked the Commissioner to dismiss the appeal as untimely, pointing out that an appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, “unless any delay is excused by the Commissioner for good cause shown.”

On this point the Commissioner ruled that the Association’s appeal was filed and served within 30 days of Islip’s final determination regarding the Association’s request to invoke the Plan’s conflict resolution process and declined to dismiss the appeal as untimely.

The Commissioner, however, dismissed the appeal “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.

The Commissioner explained that with respect to the Association’s complaints related to the interview and selection process for the high school assistant principal, high school English Teacher leave replacement and English Department chairperson positions, a determination in favor of the Association would make the process by which these individuals were appointed, hired or selected unlawful.

Noting that although the Association did not expressly seek to nullify the appointment, hiring or selection of these individuals, “that step is a necessary component of the relief requested.” The Association's failure to name such necessary parties proved to be a fatal omission as a determination in the Association’s favor would adversely affect the incumbents of those positions.

Accordingly, the Commissioner ruled that the “failure to join these individuals as parties requires dismissal of the appeal.”

In addition, the Commissioner noted that the Association sought a declaratory ruling, including an order directing the district to adhere to the conflict resolution procedures in the Plan in the future. In this regard the Commissioner ruled that “the appeal must be dismissed for failure to state a claim upon which relief may be granted,” commenting that “[i]t is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16418.html

Failure to establish due diligence in ascertaining the limitations period for commencing the action fatal to complainant’s untimely petition

Failure to establish due diligence in ascertaining the limitations period for commencing the action fatal to complainant’s untimely petition

Pichardo v New York City Dept. of Educ., 2012 NY Slip Op 07071, Appellate Division, First Department

Supreme Court, New York County, granted the New York City Department of Education’s motion to dismiss the complaint filed by Karien Pichardo’s against them as time-barred.

The court was not persuaded by Pichardo’s claim that the Department had “contributed to her delay in commencing the action” and that therefore should be estopped from asserting a statute of limitations defense with respect to her claims of gender and disability discrimination, sexual harassment, retaliation, and breach of contract.

The Appellate Division agreed, noting that Pichardo had failed to establish due diligence on her part in ascertaining the limitations period for commencing the action.

The court explained that Pichardo’s “non-tort claims” accrued on the date of her termination as a probationary teacher while her allegations of “negligent supervision and hiring and negligent infliction of emotional distress claims accrued on the date of the last alleged underlying act.” Further, the Appellate Division ruled that her “tort claims” were barred as well.

Once aspect of Pichardo’s argument alleged a “continuing” action that might preserve certain claims in her petition. The Appellate Division’s ruling, however, noted that “in opposition to [the Department’s] motion [to dismiss her petition], [Pichardo] failed to avail herself of the opportunity to submit an affidavit or other evidence to amplify the allegations in her complaint and establish the timeliness of her claims.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07071.htm

Being at work is an essential job function

Being at work is an essential job function
Dickinson v New York State Unified Ct. Sys, 2012 NY Slip Op 06895, Appellate Division, First Department

The Appellate Division unanimously confirmed the termination of an employee found guilty of “certain disciplinary charges” that alleged both misconduct and incompetency due to excessive absenteeism and lateness.

Although the court agreed with the former employee that misconduct "requir[es] a showing of willfulness or intentional misconduct," it explained that "a finding of incompetence ... only requires evidence of some dereliction or neglect of duty."

There was, said the court, substantial evidence supporting the employer's determination and the employer was not required to warn the individual that his absences and tardiness could lead to dismissal notwithstanding the individual’s argument to the contrary.

The Appellate Division also ruled that the employer had not violated due process by relying on evidence of absences and tardiness outside the time period delineated in the specification of charges as such evidence was only considered in determining the appropriate sanction to be imposed and not to determine individual's guilt.

As to the penalty imposed, termination, the court said that it did not shock its sense of fairness as “[b]eing present at work is an essential job function” and an employee’s "disability ... may not be used to shield him from the adverse consequences of inadequate job performance."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06895.htm

New York State Center for Recruitment and Public Service (RPS) replaces the Governor’s Appointments Office

New York State Center for Recruitment and Public Service (RPS) replaces the Governor’s Appointments Office

Source: Office of the Governor

On October 22, 2012 Governor Andrew M. Cuomo announced the creation of the New York State Center for Recruitment and Public Service (RPS). RPS, to be housed within the Office of General Services (OGS), replaces the Governor’s Appointments Office. 

According to the Office of the Governor, “RPS will reorganize the state government’s existing archaic appointment process” and oversee hiring and placement for approximately 5,000 unpaid positions and 2,000 staff positions.

Characterizing the “old appointments process” as “disjointed and politicized” and lacking in access to the tools used by today’s recruitment professionals, OGS will release a Request For Proposal (RFP) seeking the services of an executive search firm that will be tasked with attracting qualified candidates to state government and help the state “build its own recruiting operation so that New York state government can compete with the private sector and become an employer of choice.”

Other objectives include:

1. Better matching skills with available positions and candidates

2. Reforming the background check process for candidates

3. Establishing and tracking benchmarks for success

4. Strengthening the state’s competitive position in the “talent marketplace” by maximizing social media opportunities

5. Building a “New York State Recruitment Portal” – an online, interactive website for interested candidates to explore and apply to positions.