Proving that a work-connected injury suffered as the result of an unexpected or unforeseeable event is critical to the approval of an application for accidental disability retirement benefits

Proving that a work-connected injury suffered as the result of an unexpected or unforeseeable event is critical to the approval of an application for accidental disability retirement benefits
Suppa v DiNapoli, 2012 NY Slip Op 08622, Appellate Division, Third Department

Frank J. Suppa, a police detective, suffered a back and knee injury when, in the course of his conducting a surveillance of a suspect, stones on the retaining wall on which he was standing shifted causing him to fall. 

Contending that he was permanently disabled from performing his duties as a detective as the result of his fall, Suppa filed an application with the New York Employees' Retirement System for accidental disability retirement benefits and, in the alternative, an application for performance of duty disability retirement benefits.

The Retirement System found that Suppa was permanently disabled from performing his duties as a police detective as a result of his injuries and his application for performance of duty retirement benefits was approved.

As to Suppa’s application for accidental disability retirement benefits, the System denied that application, ruling that the incident leading to his disability “did not constitute an accident within the meaning of the Retirement and Social Security Law.”

The Appellate Division agreed, noting that the applicant ”bears the burden of proving that his [or her] injury was accidental” and the Retirement System’s determination to the contrary will be sustained “if supported by substantial evidence."

An accident within the meaning of the Retirement and Social Security Law, explained the court, is "a sudden, fortuitous mischance which is unexpected and out of the ordinary.”

Further, said the Appellate Division, "an incident does not qualify as an accident justifying the award of accidental disability retirement benefits where the injury results from an expected or foreseeable event arising during the performance of routine employment duties."

Suppa had testified that he was performing a routine job duty when he was injured and that he was aware that the stone wall that he climbed upon was made up of "large loose boulders" that were merely piled on top of each other, without anything holding the boulders together.

Under these circumstances, said the court, the possibility that one of the boulders would come loose under Suppa's weight as he was standing on it was a foreseeable event. 

Accordingly, substantial evidence supported System's determination that the incident did not constitute an accident within the meaning of the Retirement and Social Security Law.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08622.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Backward-looking right of access claims

"Backward-looking" right of access claims

Sousa v Marquez, US Court of Appeals, Second Circuit, Docket No. 12-403-cv

The Supreme Court has categorized right-of-access claims as either forward-looking or backward-looking.

In the forward-looking category "are claims that systemic official action frustrates a plaintiff or plaintiff class in preparing and filing suits at the present time" (see Christopher v. Harbury, 536 US 403). In “forward-looking” claims, official action is presently denying an opportunity to litigate.

“Backward-looking” right of access claims involve claims not in aid of a class of suits yet to be litigated but of specific cases that cannot now be tried (or tried with all material evidence) no matter what official action may be in the future. To prevail in a backward-looking claims action, the plaintiff must show that the defendants caused the plaintiff to lose a meritorious claim or a chance to sue on a meritorious claim.

Bryan Sousa, a former employee at the Connecticut Department of Environmental Protection, sued Devin Marquez, a staff attorney at the Connecticut Department of Administrative Services, in an action characterized by the Second Circuit as a “backward- looking” right of access claim. Sousa contended that he did not win his earlier employment-related suit because of false statements and deliberate omissions in an investigative report issued by Marquez.

The Second Circuit rejected Sousa’s appeal from an adverse district court ruling, explaining that:

[1] “Even assuming that so-called ‘backward looking’ right-of-access claims are viable in this Circuit, such claims cannot proceed if the plaintiff, asserting that the government concealed or manipulated relevant facts, was aware of the key facts at issue at the time of the earlier lawsuit. In other words, “A plaintiff with knowledge of the crucial facts and an opportunity to rebut opposing evidence does have adequate access to a judicial remedy” available to him or to her in the course of that litigation.

[2] The District Court’s opinion in the prior suit demonstrates that the Court did not rely on statements or omissions in Marquez’s report and, therefore, Sousa has not shown that Marquez’s purported actions caused or resulted in a violation of his rights.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/doc/12-403_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d78e4359-b8c7-4710-b019-28febe041619/1/hilite/

Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law

Workers’ Compensation Board’s finding that the injured volunteer firefighter’s condition had not changed mandates the continuation of the benefits being provided pursuant to the Volunteer Firefighters’ Benefit Law
Giudi v New Paltz Fire Dept., 2012 NY Slip Op 08621, Appellate Division, Third Department

The genesis of this appeal was volunteer firefighter Jason Giudi's claim that he had suffered a head injury in the line of duty that adversely affected his ability to continue to work in his job in his regular capacity which resulted in a reduction in his income.

The Workers' Compensation Board ultimately found that the Giudi was permanently disabled and had been deprived of more than 75% of his earning capacity. Accordingly, the Board awarded Guidi benefits pursuant to Volunteer Firefighters' Benefit Law §10(1).*

Several years later the case was reopened by the Workers’ Compensation Board to address the New Paltz Fire Department's contention that Giudi 's condition had changed within the meaning of Volunteer Firefighters' Benefit Law §13** and thus Giudi’s entitlement to benefits should be reconsidered.

The Board sustained its earlier determination that Giudi was, and continued to be, permanently disabled. The Fire Department then challenged the Board’s decision but the Appellate Division dismissed its appeal.

Noting that substantial evidence supports the Board's finding that Giudi "remains unable to continue performing either the employment duties usually and ordinarily performed at the time of injury or those required by a reasonable substitute,” the Appellate Division affirmed the Board’s decision.

According to the ruling, Giudi testified that his work as a chef required substantial amounts of education and training and he has been forced to perform less mentally demanding work since his injury.

Noting that a clinical neuropsychologist who examined Giudi had opined that Giudi's “cognitive impairments continued to prevent him from working as a chef or military police officer,” the court said that the Board was free to credit this evidence --  “which provided ample justification for its finding that [Giudi] continues to suffer from a disability that deprives him of more than 75% of his earning capacity.”

* §10 of the Volunteer Firefighters Benefit Law provides for the payment of benefits in the event a volunteer firefighter suffers a permanent partial disability benefits as a result of his or her suffering an injury in the line of duty.

** §13 of the Volunteer Firefighters Benefit Law provides for the reclassification of a disability upon proof that there has been a change in the claimant’s condition

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08621.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

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Failing to file a timely Article 78 petition bars consideration of the merits of the complaint

Failing to file a timely Article 78 petition bars consideration of the merits of the complaint
Gress v Brown, 2012 NY Slip Op 08564, Court of Appeals

In 2003, the Legislature enacted the Buffalo Fiscal Stability Authority Act (the Act) in consideration of the fact "that the city of Buffalo is facing a severe fiscal crisis, and that the crisis cannot be resolved absent assistance from the state."*

On April 21, 2004, the Buffalo Fiscal Stability Authority (BFSA) adopted its Resolution No. 04-35, which directed that "effective immediately, there shall be a freeze with respect to all wages, wage rates, and salary amounts for all employees of the City and all Non-exempt Covered Organizations, to the full extent authorized by the Act." 

This wage freeze, said the Court of Appeals, was intended "to prevent and prohibit anyincrease in wage rates, wages or salaries for any employee of the City or a Non-exempt Covered Organization," [emphasis supplied by the Court].

The Gress plaintiffs [Gress] were at-will, seasonal employees and commenced this class action alleging that the City violated the City of Buffalo's Living Wage Ordinance when it implemented BFSA’s Resolution 04-35. The Appellate Division agreed, holding that that the BFSA did not have the authority to freeze the wages of the Gress plaintiffs [see 82 AD3d 1654].

Significantly, Gress did not quarrel with the wage freeze generally but contested only its application to them through the BFSA's administrative action. Such a challenges, said the Court of Appeals, should have been raised by commencing a timely CPLR Article 78 proceeding naming BFSA as a respondent. Gress failed to file such a timely petition pursuant to Article 78 and was thus, said the court, barred from challenging the BFSA’s action or its authority to so act.

Rejecting the dissent’s argument that the BFSA, in fact, "had no authority to freeze the wages due the Gress plaintiffs pursuant to the Living Wage Ordinance," the majority ruled that “whether or not authorized to do so, the BFSA froze plaintiffs' wages and once this happened, the City and Mayor were bound by its action,” not having filed a timely challenge to such action.

* Public Authorities Law §3850-a

The decision is posted on the Internet at

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08564.htm

The penalty of termination imposed on petitioner was excessive in light of all the circumstances

The penalty of termination imposed on petitioner was excessive in light of all the circumstances
Principe v New York City Dept. of Educ., 2012 NY Slip Op 08568, Court of Appeals

The Court of Appeal, Judge Smith dissenting, said that Appellate Division [94 AD3d 43] “correctly determined that the penalty of termination imposed on petitioner was excessive in light of all the circumstances.”

The Appellate Division decided that “Given all of the circumstances, including the educator’s “spotless record as a teacher for five years and his promotion to dean two years prior to the incidents at issue,” the penalty excessive and shocking to [its] sense of fairness, citing the Pell Doctrine [Pell v Board of Educ. Of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].”

NYPPL's summary of the Appellate Division’s ruling is posted on the Internet at:

http://publicpersonnellaw.blogspot.com/search?q=Principe

The Court of Appeals’ ruling is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08568.htm

_____________________________

NYPER’s new e-manual A Reasonable Disciplinary Penalty Under the Circumstances - A Concise Guide to Penalties That Have Been Imposed on Public Employees in New York State Found Guilty of Selected Acts of Misconduct – is scheduled for publication in January 2013. For information about this e-manual send your e-mail to publications@nycap.rr.com with the word “Reasonable” in the subject line.

Claims that health impairments suffered by 9-11 first responders seeking benefits resulted from duties performed at the World Trade Center requires the pension fund to produce competent evidence to rebut the statutory presumption that such was the case

Claims that health impairments suffered by 9-11 first responders seeking benefits resulted from duties performed at the World Trade Center requires the pension fund to produce competent evidence to rebut the statutory presumption that such was the case

Bitchatchi v Board of Trustees of the N.Y. City Police Dept. Pension Fund, Art. II,  2012 NY Slip Op 08566, Court of Appeals

The Administrative Code of City of New York §13-252.1[1][a]* provides, in pertinent part, that: “Notwithstanding any provisions of this code or of any general, special or local law, charter or rule or regulation to the contrary, if any condition or impairment of health is caused by a qualifying World Trade Center condition as defined in section two of the retirement and social security law, it shall be presumptive evidence that it was incurred in the performance and discharge of duty and the natural and proximate result of an accident not caused by such member's own willful negligence, unless the contrary be proved by competent evidence, " [emphasis supplied by the court].

Addressing a number of appeals involving police officers who responded to provide assistance at the World Trade Center following the September 11, 2001 attacks in which two officers sought accidental disability retirement benefits [ADR] and the surviving spouse of another officer made a claim for line-of-duty death benefits, the Court of Appeals said that “The common issue presented is whether the pension fund respondents produced competent evidence to rebut the WTC presumption accorded to petitioners' claims” by law.

In this instance the court held that “that respondents did not meet their burden of disproving that the officers' disabilities or death were causally related to their work at the World Trade Center and related sites,” and thus the applications of two officers seeking [ADR] benefits and the claim of the surviving spouse of the third officer for line-of-duty death benefits should be granted.

The court explained that although a claimant filing for ADR benefits ordinarily has the burden of proving causation in an administrative proceeding, the Legislature's response to the World Trade Center tragedy was to enact a new statute creating a rebuttable presumption in favor of ADR benefits for police officers who performed rescue, recovery or cleanup operations at specified locations, including the World Trade Center and the Fresh Kills Landfill.

Accordingly, under the WTC presumption, the pension fund bears the initial burden of proving that a claimant's qualifying condition was not caused by the hazards encountered at the WTC site as the Legislature created the WTC presumption to benefit first responders because of the evidentiary difficulty in establishing that non-trauma conditions, such as cancer, could be traced to exposure to the toxins present at the WTC site in the aftermath of the destruction.

Hence, unlike ordinary ADR claimants, first responders need not submit any evidence — credible or otherwise — of causation to obtain the enhanced benefits. Nevertheless, the Legislature did not create a per se rule mandating ADR benefits for all eligible responders. Rather, it provided that a pension fund could rebut the presumption by "competent evidence."

In other words, said the Court of Appeals, unlike the typical application for disability benefits, a pension fund cannot deny ADR benefits by relying solely on the absence of evidence tying the disability to the exposure.

* Similar provisions extend the WTC presumption to other classes of first responders, i.e., Administrative Code of City of NY §13-353.1 [firefighters]; Retirement and Social Security Law §363-bb[h] [state police]; and Retirement and Social Security Law §605-b[d] [sanitation workers]. The presumption also applies where a police officer later dies and death benefits are sought (Administrative Code of City of NY §3-252.1 [[4]).

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08566.htm

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for additional information about this electronic reference manual.

========================

A court’s review of a quasi-judicial administrative hearing is limited

A court’s review of a quasi-judicial administrative hearing is limited
Mannino v Department of Motor Vehicles.- Traffic Violations Division, 2012 NY Slip Op 08529, Appellate Division, Second Department

In this CPLR Article 78 proceeding the Appellate Division reviewed a determination of the Administrative Appeals Board of the New York State Department of Motor Vehicles that confirmed a determination of an Administrative Law Judge.

Sustaining the Board’s decision, and dismissing the proceeding on the merits, the Appellate Division set out the following guidelines addressing the role of the courts in considering appeals from a quasi-judicial administrative decision.

The court said:

[1] To annul an administrative determination made after a hearing directed by law at which evidence is taken, a court must conclude that the record lacks substantial evidence to support the determination, explaining that substantial evidence is "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact;" and

[2] The courts may not weigh the evidence or reject the choice made by an administrative agency or tribunal where the evidence is conflicting and room for choice exists.

Deciding, upon review of the record, the record demonstrates that the findings of the Administrative Law Judge are supported by substantial evidence, the Appellate Division dismissed the appeal.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08529.htm

Audits released by the New York State Comptroller

Audits released by the New York State Comptroller

From the Office of the State Comptroller, December 11, 2012

On December 11, 2012 New York State Comptroller Thomas P. DiNapoli announced the following audits of State agencies by his office have been issued. 

The audits addressed such issues as overtime procedures, processing NYSHIP health insurance claims, travel expenses incurred by certain state workers, the disposal of computers, Medicade payments and dual employment.

Office of Court Administration, Controls Over Overtime Costs (2011-S-2)
Based on a random sample of 196 overtime payments, auditors found 110 lacked required written pre-approval for scheduled overtime and 86 lacked documentation to support that a required review was done to identify alternatives for unscheduled overtime. OCA's Financial Management Information System summary level overtime reporting was not being routinely provided to the courts for monitoring purposes and no user training for the System had taken place in years. Auditors recommended OCA ensure that supervisory staff comply with requirements for written preapproval of scheduled overtime and documented analysis of potential steps to avoid unscheduled overtime; make sure all appropriate steps have been undertaken to control public safety department overtime costs; and ensure that the new financial management system is rolled out with necessary user training and support.

New York State Health Insurance Program, Empire BlueCross BlueShield Coordination of Benefits With Medicare Part A Payments (2011-S-31)
Empire generally processed claims correctly when it was paid as the primary payer for patients with both Empire Plan and Medicare coverage. However, auditors found Empire was paid incorrectly as the primary payer on 13 claims totaling $254,141, when Medicare should have been the primary payer.
Auditors recommended Empire develop controls to help ensure it pays as the secondary payer when Medicare should be the primary payer; and periodically confirm with Civil Service the employment status of members who appear to be Medicare-eligible and have active employment status.

SUNY College at Cobleskill, Selected Employee Travel Expenses (2012-S-143)
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors examined travel expenses for the highest-cost travelers in the state. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. One of these employees worked at the College at Cobleskill and had travel costs totaling $181,890. Auditors found that the travel expenses for the one College employee selected for audit were documented and adhered to State travel rules and regulations.

SUNY College at Oneonta, Selected Employee Travel Expenses (2012-S-145)
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, we audited travel expenses for the highest-cost travelers in the state. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. Three of these employees worked at the College at Oneonta and had travel costs totaling $326,125. Auditors found that the travel expenses for the three College employees selected for audit were documented and adhered to State travel rules and regulations.

State Office for the Aging, Disposal of Electronic Devices (2012-S-39)
During March 2012, the office had amassed 18 computers that were ready for surplus sale. Using forensic software, auditors analyzed the media components of each device and found none contained any readable data and concluded the office has complied with requirements to protect sensitive information.

Department of Health Medicaid Payments for Dental Consultations (Follow-Up) (2012-F-27)
An initial audit report examined Medicaid payments to dental specialists for consultation services. Based on a statistical analysis of a sample of claims paid to ten dental specialists, auditors estimated the claims for these specialists alone accounted for at least $1.2 million of Medicaid overpayments to as much as $1.3 million. Auditors concluded that if these results held true for the claims of all other providers of dental consultations during the audit period, then New York's Medicaid program overpaid an additional $2.6 million. In a follow-up report, auditors found DOH officials have made significant progress in correcting the problems identified in the initial report.

City University of New York, New York City Department of Parks and Recreation - Questionable Timekeeping Practices Relating to the Dual Employment of Stationary Engineers (2011-S-27)
CUNY and Parks both employ stationary engineers, who are responsible for a variety of functions, such as operating and maintaining power plants for parks and maintaining campus buildings for CUNY. Auditors matched the state payroll, which accounts for CUNY employees, with the city payroll, which accounts for Parks employees, for the period July 1, 2009 to June 30, 2010, and identified ten stationary engineers who received combined earnings from both CUNY and Parks that ranged from $150,000 to $256,000. Auditors found 338 occasions where engineers reported being present at both jobs at the same time. In another 155 cases, there was no break between the times the staff reported leaving one job and starting their shift at the other. Auditors recommended management increase oversight of stationary engineers and their supervisors to ensure that all schedule changes are properly documented and approved and implement an automated timekeeping system and ensure stationary engineers follow regulations relating to dual employment.

Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17

Members of the State's Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17

Opinions of the Attorney General, Formal Opinion 2012- F2

Public Officers Law §17 provides for the defense and indemnification of State officers and employees sued in a civil action or proceeding in any state or federal court for acts or omissions involving the performance of their official duties.

The Attorney General has advised Gina L. Bianchi, Esq., Deputy Commissioner and Counsel, New York State’s Division of Criminal Justice Services, that members of the Security Guard Advisory Council are State officers or employees for the purposes of Public Officers Law §17.

Presumably the same would be true with respect to the provisions of Public Officers Law §19's applicability  to such Council members. 

Public Officers Law §19 provides, in pertinent part, that it is “the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of his* public employment or duties upon his acquittal or upon the dismissal of the criminal charges against him.”

With respect to political subdivisions of the State, Public Officers Law §18 authorizes such entities, “by the adoption of local law, by-law, resolution, rule or regulation,” to provide for the defense and indemnification of its officers and employees in the event any such persons are sued in federal or state courts in a civil matter related to the performance of their official duties.

* §22 of the General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.”

The Attorney General's Opinion 2012-F2 is posted on the Internet as a PDF file at:

http://www.ag.ny.gov/sites/default/files/opinion/2012-f2pw.pdf

Reassignment of school principals challenged by students, resident taxpayers and employees of the school district

Reassignment of school principals challenged by students, resident taxpayers and employees of the school district

Decisions of the Commissioner of Education, Decision 16,431

In these appeals to the Commissioner of Education the petitioners challenged the school board's reassignment of school principals. As two separated appeals concerning the same issue were filed by different petitioners, the Commissioner consolidated them because they “present similar issues of fact and law.”

The petitioners in Appeal I alleged that board members acted negligently, with a wrongful purpose and not in the best interest of students, taxpayers and school staff and asked the Commissioner to overturn the board’s decision and remove certain named board members. 

The petitioners in Appeal II asked the Commissioner to order an “immediate mediation” of the parties’ dispute in order to ensure that the board’s action “was done properly.”

The school district asked the Commissioner to dismiss both appeals contending that

[1] The resolution passed following all due process requirements, in accordance with board policies and pursuant to the board’s powers under the Education Law;

[2] The board was not required to provide a rationale for the board’s decision

[3] the transfers were not made for a wrongful purpose or in willful violation or neglect of duty. And

[4] The transfers were in the best interest of the district.

The Commissioner first addressed a number of procedural issues that should be noted:

1. In Appeal II the petitioners submitted four newspaper articles to support their position. The Commissioner noted that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein” and that he did not consider them “for the veracity of their content.”

2. Petitioners in both Appeal I and Appeal II seek class certification but both appeals failed to satisfy the requirements. The Commissioner explained that while petitioners, as district residents and taxpayers, have standing to maintain the appeals and application, to the extent they seek class certification, they have failed to meet the requirements as an appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class. A petitioner seeking class certification must set forth the number of individuals he or she seeks to represent and must show that all questions of law and fact would be common to all members of the class. In this instance, said the Commissioner, the “pleadings are entirely devoid of any allegations addressing these criteria” and class status was denied.

3. Another critical procedural requirement regarding Appeal I was noted by the Commissioner – joining necessary parties. 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. However in Appeal I two individual’s who would be affected if petitioners prevail on the appeal are necessary parties and petitioners’ failure to join them requires dismissal of Appeal I.

As to Appeal II, the Commissioner stated that it sought an order commanding “immediate mediation” between the board and the community – conducted by a designee from the State Education Department – to ensure that the board’s action here challenged was “done properly” in accordance with state law, applicable district policies and “the best interest of” the district’s students.”

The Commissioner pointed out that an appeal to the Commissioner is appellate in nature and does not provide for investigations. Although petitioners do not explicitly request an investigation, said the Commissioner, their request for a mediation process to determine the propriety of the board’s action in light of their complaints is, in essence, a request for an investigation – relief that is not available in the context of an appeal under §310 of the Education Law.

The final issue addressed by the Commissioner: the application of the petitioners in Appeal I for the removal of school officials.

The Commissioner said that although a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

Based on the record before the Commissioner, the Commissioner ruled that the petitioners in Appeal I have failed to establish that the actions of the individual respondents in voting to transfer the two principals warrant their removal. Further, said the Commissioner, the alleged violations, even if proven, would not, on the record before him, “rise to the level of willful violation of law and neglect of duty that would constitute sufficient grounds for the removal of the individual respondents.” 

The bottom line: The Commissioner decided that on the record before him, petitioners have not met their burden of demonstrating that respondents engaged in any willful or intentional misconduct warranting their removal from office and dismissed the appeals and the application for the removal of certain school officials.

In light of this disposition, I need not consider the parties’ remaining contentions.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16431.html