The retirement option of the divorced spouse should reflect the equitable distribution formula set forth in Majauskas

The retirement option of the divorced spouse should reflect the equitable distribution formula set forth in Majauskas 

McVeigh v Curry, 2012 NY Slip Op 07091, Appellate Division, Second Department

In a matrimonial action, Supreme Court directed the plaintiff to furnish her former spouse with a copy of her birth certificate essentially for the purposes of his electing the 100% joint and survivor option of his pension fund or his obtaining life insurance and directed the defendant to elect either the 100% joint and survivor option of his pension fund or obtain life insurance to cover her 50% share of the marital portion of her former spouse's pension.

The Appellate Division modified the order issued by Supreme Court, explaining the Supreme Court erred in directing the plaintiff to furnish her former spouse with a copy of her birth certificate only for the purposes of his electing the 100% joint and survivor option of his pension fund or his obtaining appropriate life insurance, as that option could potentially result in an award to the plaintiff that is more than she is entitled to under the equitable distribution formula enunciated in Majauskas v Majauskas (61 NY2d 481).

The court observed that the 100% joint and survivor option would, upon the plaintiff's former husband’s death, provide her with the full monthly retirement allowance of her former husband's pension for the rest of her life.

In contrast, Option 3 of the defendant's pension fund, the 50% joint and survivor option, would, upon the defendant's death, provide the plaintiff with 50% of the original monthly retirement allowance for the rest of her life.*

Noting that the 50% joint and survivor option is closer to the equitable distribution formula set forth in Majauskas, the Appellate Division ruled that the Supreme Court’s order must be modified as indicated.

* Not mentioned in the opinion is the difference in the amount of the monthly retirement allowance that would be paid to the plaintiff’s former husband under the 100% joint and survivor option in contrast to the amount that would be paid to him under “Option 3.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_07091.htm

Resigning from a teaching position in one tenure area to accept a tenured appointment in a different tenure area could affect seniority rights for the purposes of layoff

Resigning from a teaching position in one tenure area to accept a tenured appointment in a different tenure area could affect seniority rights for the purposes of layoff

Appeal of Erika L. Kwasnik, Decisions of the Commissioner of Education, Decision #16,419

This decision by the Commissioner of Education succinctly sets out the controlling consideration in determining the rights of an educator resigning from his or her tenured position in one tenure area to accept a tenured appointment in a different tenure area in the event of the abolishment of his or her position.

Essentially there was no dispute that following her appointment to a library media specialist position, Erika L. Kwasnik submitted a letter of resignation from her English teacher position. When the library media position was abolished and Kwasnik was advises that she would be excessed and her name place on a reinstatement list, she contended that because she was continuously employed within the district, she maintained her tenure, and therefore her seniority rights, in the English teacher position.

The Commissioner indicated that in a layoff situation, the relevant rules of the Board of Regents provided as follows:

1. 8 NYCRR §30-1.10, a professional educator who acquires tenure in a new tenure area generally retains tenure in his or her original tenure area while he or she remains continuously employed as a full-time member of the professional staff of the district.

2. 8 NYCRR §30-1.13(c) provides that upon abolition of his or her position, a professional educator who has tenure status in additional tenure areas must be transferred to such other tenure area in which he or she has greatest seniority.

The Commissioner noted that both regulations apply “only to professional educators who have tenure and seniority rights in another tenure area at the time tenure was acquired in a new tenure area or the position was abolished, as applicable.”

In this instance, however, the school district claimed that Kwasnik had resigned from her tenured English teacher position and thus the issue before the Commissioner in this appeal is whether she had knowingly and freely waived her tenure and seniority rights in the English tenure area by resigning from her position as an English teacher. 

Citing Matter of Middleton (16 Ed Dept Rep 50, Decision No. 9,296, reopening denied 16 id. 366, Decision No. 9,433), the Commissioner noted that where a teacher had resigned from a full-time position but was simultaneously appointed to a non-probationary, part-time position in the district it was held that the resignation served to terminate the employment relationship and any reinstatement rights. 

Similarly, said the Commissioner, although Kwasnik continued to work in the district and her benefits accrued without interruption, “I must conclude that her resignation from her position as a tenured English teacher constituted a relinquishment of her tenure and seniority rights with respect to an English teacher position.”

The Commissioner then observed that to be enforceable, such a waiver of tenure rights must be knowingly and freely given and not the product of coercion. Further, “[a]bsent a showing of fraud, duress, coercion, or other affirmative misconduct on the part of school officials which renders a resignation involuntary, a resignation cannot be withdrawn once it has been accepted* by school authorities.”

Kwasnik asserted that that she expressed reservations to the district’s previous superintendent about resigning but was told that “it was the only way she would be able to take on the duties of a Library Media Specialist.”  She then claimed that she “reluctantly” agreed to provide a letter of resignation. 

  

The Commissioner, however, said that “The record indicates that petitioner knowingly and freely resigned from her position of English teacher once she was assured that she would be receiving the position of a library media specialist.” The Commissioner continued: “While [Kwasnik] may have expressed reservations about providing a letter of resignation, she did not seek the assistance of counsel or her union before submitting the letter, nor did she indicate in her letter that she wished to maintain her tenure and seniority rights to the English teacher position.”

Finding that Kwasnik “has not demonstrated that she was coerced into submitting a letter of resignation” or that the district engaged in any other affirmative conduct that rendered her resignation involuntary, the Commissioner ruled that the school district acted reasonably when it viewed Kwasnik’s resignation “as a voluntary end to her employment as an English teacher, thereby terminating her seniority and tenure rights to that position.”

* COMMENT: Except as otherwise provided by law, rule or regulation, or by the terms of a collective bargaining agreement, a resignation need only be received by the appointing authority, or its designee, prior to receipt of a notice that the individual has rescinded or withdrawn it to be effected – acceptance of the resignation is not required for it to be operative [Hazelton v Connelly, 25 NYS2d 74]. An example of a situation where acceptance of a resignation mandated by statute: Section 2111 of the Education Law provides that an officer of a school district may "resign at a district meeting" or, in the alternative, the officer "shall also be deemed to have resigned if he filed a written resignation with the district superintendent of his district and such superintendent endorses thereon his approval and files the same with the district clerk" [emphasis supplied].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16419.html

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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.