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January 03, 2013

An appeal pursuant to Education Law §310 is not available to an individual seeking to challenge an administrative decision by the New York State Education Department


An appeal pursuant to Education Law §310 is not available to an individual seeking to challenge an administrative decision by the New York State Education Department
Decisions of the Commissioner of Education, Decision #16,440

In this appeal the issue concerned an applicant's challenge to a decision by the New York State Education Department Office of Teaching Initiatives that the applicant for a permanent teaching certificate was not eligible for such a certificate.

Dismissing the appeal on the grounds that the Commissioner of Education does not have jurisdiction to consider such an appeal, the Commissioner explained that “it is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department.

However, said the Commissioner, such a challenge may be advanced in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules. 

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume52/d16440.html

Only the employees of the public employer, a union acting on their behalf or the public employer itself may intervene in an improper action pending before PERB


Only the employees of the public employer, a union acting on their behalf or the public employer itself may intervene in an improper action pending before PERB
City of New York v New York State Pub. Empl. Relations Bd., 2012 NY Slip Op 09130, Appellate Division, Third Department

The State’s Public Employment Relations Board found that the Board of Education of the City School District of the City of New York [Board] committed an improper employer practice in response to a complaint filed by the union representing certain employees employed by the Board. The union had alleged that the Board unilaterally changed a condition of employment by eliminating the automatic granting of parking permits after the City adopted a new plan aimed at reducing traffic congestion in the City. 

The City of New York filed a petition in Supreme Court seeking an annulment of PERB's decision. PERB counterclaimed seeking enforcement of its remedial order. Supreme Court dismissed the City’s petition and granted PERB's counterclaim.

Addressing a “procedural issue,” the Appellate Division, noting that PERB's order did not make any findings against the City nor did it order the City to do anything, ruled that the City did not have standing to commence a proceeding seeking to annul PERB's decision. Thus, said the court, Supreme Court properly dismissed that the petition brought by the City, explaining that the City and the Board are separate legal entities.

Further, said the court, the City was not a party to the PERB proceeding and although it was argued that “the City could have intervened,” the court noted that PERB’s regulations only permit intervention by public employees, a union acting on their behalf or the public employer, citing 4 NYCRR 212.1 [a]. In this instance, said the court, the relevant employer was the Board and not the City of New York.

As to PERB’s ruling concerning the merits of the alleged improper practice charge filed against the Board, the Appellate Division considered Board’s argument that it had no control over changes with respect to parking that was imposed upon it by the City and therefore had no power to negotiate anything regarding this parking permit situation.

Conceding that the power to regulate traffic and parking on city streets is expressly delegated to the City, the Appellate Division said that the relevant questions for it to address were [1] did the Board had any control over the change in producing and distributing parking permits and [2] did PERB intruded on an area under the authority of the City or its Department of Transportation [DOT].

The Appellate Division’s answer: it agreed with PERB that the Board did have control over some aspects of the new parking permit situation as DOT produced and provided to Board 10,007 site-specific placards and 1,000 three-hour permits for on-street parking and did not have any oversight responsibilities as to the distribution of such placards and permits.

The decision is posted on the Internet at:

January 02, 2013

Retiree’s application to change the retirement option selected filed more than thirty days after her effective date of retirement rejected as untimely


Retiree’s application to change the retirement option selected filed more than thirty days after her effective date of retirement rejected as untimely
Feuer v State of New York, 2012 NY Slip Op 09129, Appellate Division, Third Department

Prior to retiring in June 2009, a teacher, a Tier 4 member of the New York State Teachers' Retirement System [TRS], met her financial advisor and a TRS representative for a preretirement consultation. The teacher then submitted her application for retirement, selecting the option entitled "Largest Lump Sum," which provided the "largest possible lump sum payment to a beneficiary" following the member's death (emphasis in the decision), and designated her niece and nephew as her beneficiaries.

The retirement application the teacher completed also detailed another option available to a retiree entitled the "Maximum" option. It described this option as follows: "MAXIMUM — Do notdesignate a beneficiary if you select this option. This election will provide you with the largest possible annual benefit. All payments will cease at your death."

In addition, the application stated that, in the event an applicant wished to change options, notice of such a change had to be received by the Retirement System "within 30 days after [the] effective date of retirement" —  in this retiree's case, no later than July 30, 2009.

After submitting her application, the retiree received a letter from the Retirement System dated March 23, 2010, summarizing her retirement benefits and established her monthly pension payment. More then 30 days after the effective date of her retirement, however, the now retired teacher notified the Retirement System that she wanted to change her retirement option selection from "the Largest Lump Sum" option to the "Maximum" option.

The Retirement System denied her request and the retiree filed a petition with the Court of Claims seeking permission to file a late notice of claim.*

The Court of Claims denied her request because the retiree, by her own admission, did not notify the Retirement System that she wanted to change her retirement option within 30 days of the effective date of her retirement. The Appellate Division affirmed the Court of Claims’ ruling, explaining that the Court of Claims is a court of limited jurisdiction that has no capacity "to grant strictly equitable relief, [although it] may grant incidental equitable relief so long as the primary claim seeks to recover money damages in appropriation, contract or tort cases."

Although the relief that the retiree seeks is couched in money damages,** the Appellate Division characterized her application as requiring  the review of an administrative agency's determination. In that regard, the Appellate Division noted that the money damages that the retiree sought were calculated by using as a base figure what she would have received as her pension benefit had she initially selected the "Maximum" option.

The bottom line: The Appellate Division ruled that as the retiree, in essence sought judicial review and reversal of an administrative determination made by the Retirement System, the Court of Claims lacked subject matter jurisdiction and it properly denied the retiree's motion for leave to file a late notice of claim.

* The retiree also sued TRS’ representative in Supreme Court, contending that the representative was negligent regarding the her retirement options. Supreme Court dismissed this action as it sought money damages from a state employee in connection with the performance of her duties and, as such, could only be commenced in the Court of Claims.

** The Appellate Division said that the relief that the retiree sought would result in her receiving “windfall, because not only would she receive the monthly pension benefit under the Maximum option, but she still would have a lump sum available to her beneficiaries upon her demise.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_09129.htm

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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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