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.

Employee’s psychiatric problems rather than misconduct leads to a recommendation that the employee be placed on Section 72 leave for disability

Employee’s psychiatric problems rather than misconduct leads to a recommendation that the employee be placed on Section 72 leave for disability

New York City  Human Resources Admin. v. Anonymous, OATH Index No. 1781/12 

An employee diagnosed with multiple psychiatric problems was found unfit to perform the duties of the position due to being frequently unable to interact with co-workers and supervisors without engaging in disruptive, angry, and sometimes “frightening behavior.”

OATH Administrative Law Judge Faye Lewis found that the employer had made efforts to modify the duties of the position but the individual’s behavior “was persistently disruptive.”

After considering the disciplinary charges filed against the individual, Judge Lewis recommended that the employee be placed on an involuntary leave of absence pursuant to §72 of the Civil Service Law. [Presumably the ALJ was referring to placing the employee on such leave pursuant to §72.5 of the Civil Service Law.*]

As the ALJ determined that the employee’s acts that caused disciplinary charges to be served were the result of a disability, she found that the charges of misconduct filed against the individual were not sustained.

* An individual placed on such leave subsequently terminated from the position pursuant to §73 of the Civil Service Law may apply for reinstatement within one year of his or her being found physically and mentally fit to resume performing the duties of  his or her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1781.pdf

Court rules that it lacks jurisdiction to consider a motion to vacate an arbitrator’s action absent a “final award”

Court rules that it lacks jurisdiction to consider a motion to vacate an arbitrator’s action absent a “final award”

Jordan-Elbridge Central School District v Anonymous, RJI #33-12-2305, Index #2012-35852, Supreme Court Onondaga County, Justice Donald A. Greenwood

An Education Department-appointed Section 3020-a arbitrator directed the Jordan-Elbridge Central School District to produce e-mails exchanged between and among ten individuals over a three-year period demanded by Anonymous, upon whom disciplinary charges had been served, in the course of discovery.*

The school district, claiming that the arbitrator had exceed his authority in directing it to provide copies of these e-mails to Anonymous, asked Judge Greenwood to vacate the arbitrator’s order.

Anonymous, in rebuttal, asked the court to dismiss Jordan-Elbridge’s petition on the grounds that the court did not have jurisdiction to consider the matter. The court agreed, commenting that “The law is well settled that in order for [it] to intervene or even entertain a suit seeking court intervention there must be an [arbitration] award within the meaning of [CPLR 7511],“ citing Mobile Oil Indonesia v Asamora Oil, 43 NY2d 276.

Further, said Justice Greenwood, the Appellate Division, Fourth Department, addressed this issue in Geneva City School District v Anonymous, 77 AD3d 1365, and held that the hearing officer’s granting summary judgment dismissing eleven of sixteen then pending disciplinary charges constituted an “interim award” rather than a final determination and thus the court did not have jurisdiction to consider the district's objections to such dismissals at that time.

Accordingly, the court granted Anonymous’ motion to dismiss the school district’s petition for lack of jurisdiction.

* Although “discovery” is not generally available in administrative disciplinary proceedings, Education Law §3020-a.3 c.(iii)(C) , which controls in the discipline of educators, however, specifically provides for “discovery.”

The court’s ruling is included in a newspaper report of the decision by reporter Catie O’Toole appearing in the Syracuse Post-Standard, October 19, 2012 and posted on the Internet at:

http://www.syracuse.com/news/index.ssf/2012/10/jordan-elbridge_school_distric_13.html

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

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

Issued during the week of October 15 - 21, 2012 [Click on the caption to access the full report]

Fiscal Stress Monitoring System for Local Governments

NY communities are facing hard times. Many are struggling to do more with less. Most have been substantially impacted by revenue shortfalls since the onset of the Great Recession. There are no quick fixes. It's time for an honest conversation about the numbers. Comptroller DiNapoli's early warning system will help the public and local officials do just that. Click here to see a video on the fiscal stress monitoring system.

DiNapoli: Treasurer Stole $200,000 From Woodstock Fire Company

The former treasurer of Woodstock Fire Company No. 3 embezzled more than $200,000 over a five year period, according to an audit released last Friday by State Comptroller Thomas P. DiNapoli. As a result, Dale D. Hughes, Jr., 64, was arrested and charged by Ulster County District Attorney D. Holley Carnright with grand larceny in the second degree. Hughes was arraigned before Woodstock Town Court Justice Richard Husted and remanded to the Ulster County Jail in lieu of bail.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed the following audits:

the Town of Cairo;

the Town of Erwin;

the Town of Lancaster;

the Owasco Fire District; and,

the Woodstock Fire District.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed an audit of the Fort Plain Central School District.

A letter placed in an employee file indicating “serious misconduct” that could negatively impact his or her eligibility for future promotion goes beyond “constructive criticism”

A letter placed in an employee file indicating “serious misconduct” that could negatively impact his or her eligibility for future promotion goes beyond “constructive criticism”

D'Angelo v Scoppetta, 2012 NY Slip Op 06989, Court of Appeals

May a letter from the Assistant Commissioner of the Fire Department of the City of New York (Department) to a firefighter advising him that he violated the Department's Code of Conduct and Equal Employment Opportunity (EEO) Policy could adversely affect his eligibility for promotion in the future be made part of firefighter's permanent “EEO file” without first providing him an opportunity for a hearing pursuant to §15-113 of the Administrative Code of the City of New York?

Supreme Court had concluded that "the letter [was] a disciplinary reprimand and not a critical evaluation" and, therefore, the firefighter had the right to a formal hearing and other due process safeguards. * The Appellate Division agreed with the lower court’s ruling.

The Court of Appeal affirmed the lower courts’ rulings, holding that the firefighter was entitled to a due process hearing before the Department may place such a letter in his permanent file.

The Department conceded that the Administrative Code §15-113 required a hearing before its employees could be subject to punishment by reprimand but contended that a hearing was not necessary in this instance because the letter it placed in firefighter's permanent EEO file was not a formal reprimand but merely a critical evaluation not subject to the same due process protections. The Court of Appeals, as did the lower courts, disagreed.

Citing Holt v Board of Educ. of Webutuck Cent. School Dist. (52 NY2d 625, the Court of Appeals contrasted the Department’s action with school administrators placing letters in the permanent files of teachers critical of their performance without conducting §3020-a disciplinary hearings.

In one instance, the teacher was admonished for failing to maintain an orderly classroom after he had been directed to do so and for interrupting the class of another teacher. The letters characterized the teacher as incompetent and insubordinate. A second teacher had been sent a letter warning him that his regular absences from his assigned duties violated school policy. The court said it had concluded these letters did not trigger the due process protections of Education Law §3020-a because they were simply "critical evaluations" and not "formal reprimand[s]."

Although the letters sent to the teachers were "sharply critical," the Court of Appeals said that the fundamental purpose of the communications was not to punish but to identify "a relatively minor breach of school policy and to encourage compliance with that policy in the future."

The facts in the firefighter’s case, said the court, “are readily distinguishable from the facts in Holt.” 

While the teachers had received a letter from an immediate supervisor criticizing their performance, the firefighter was the subject of a formal investigation conducted by the Department's EEO office over a two-year period in response to the complaint alleging that he had used “racially offensive language” that had involved the interviewing of several “eyewitnesses” as well as the firefighter.

Significantly, the court noted that ultimately the EEO office determined that the evidence it had collected substantiated the complaint and it supplied a detailed report to the Assistant Commissioner. The Assistant Commissioner then reviewed the EEO office's findings and then “conferred with the Commissioner himself who ultimately approved the EEO office's determination.” This said the court “stands in contrast to the letters in Holt, which only reflect the views of a particular supervisor.”

Further, said the court, the letter to the firefighter noted that the document "serve[d] as a formal Notice of Disposition of the filed Complaint" and “in no uncertain terms,” informed the firefighter that “a thorough investigation revealed that he ‘exercised unprofessional conduct’ and ‘made an offensive racial statement’ [and] as a consequence of his misconduct, he was required to review and sign an EEO Advisory Memorandum and participate in further EEO training.”

The Court of Appeals said that it agreed with the firefighter that “the requirement to participate in additional EEO training is a form of discipline and not, as the Department contends, mere encouragement to comply with EEO policy.”

In addition, the decision notes that the Department conceded at oral argument that the EEO's finding that [the firefighter] was in breach of its racial discrimination policy is serious misconduct that could negatively impact his eligibility for future promotion.

Concluding that the letter sent to the firefighter constituted a “formal reprimand under Administrative Code §15-11,” the court ruled that the Department had denied the firefighter his right to administrative due process by placing the letter in his file without first conducting a hearing. Affirming the Appellate Division’s ruling, Justice Smith dissenting, the majority of the court ruled that the letter to which the firefighter had objected was properly expunged from his permanent EEO file.

* Supreme Court noted that it could not order a hearing because, as the parties conceded, the applicable statute of limitations for conducting such a hearing had expired.

COMMENT: As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work constitutes a lawful means of instructing the employee. 

In Matter of Fusco, Comm. of Ed. Decision 14,396 and Matter of Irving, Comm. of Ed. Decision 14,373, the Commissioner of Education found that the alleged "critical comment" exceeded the parameters circumscribing "lawful instruction" concerning unacceptable performance. 

In Fusco’s case, the Commissioner said that “contents of the [counseling] memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was "intended to encourage positive change" in Fusco’s performance. The Commissioner noted that the memorandum "'contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."

In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law." .

The D'Angelo decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06989.htm