Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"

Certain issues that the Commissioner of Education will decline to consider "for lack of jurisdiction"

Appeal of C.Z. from actions of the Board of Education of the Jordan-Elbridge Central School District, et. al.

Decisions of the Commissioner of Education, Decision No. 16,450

In this appeal to the Commissioner of Education C.Z. contended that certain alleged actions by school board members were “inappropriate and/or in violation of the Education Law and the Educational Rights and Privacy Act [FERPA].”  C.Z asked the Commissioner to issue an order admonishing the board members.

The Commissioner, stating that he lacked jurisdiction to consider FERPA claims, dismissed this branch of C.Z.’s appeal. The Commissioner explained that “The United States Secretary of Education, not the Commissioner, has jurisdiction over alleged FERPA violations (20 U.S.C. §1232[g]).

The Commissioner also dismissed that portion of C.Z. appeal that, in the words of the Commissioner, “attempts to allege violations of the Open Meetings Law through her claims that [the school board] declined to allow her to attend and to discuss certain issues at an executive session." The Commissioner noted that the §107 of the Public Officer Law “vests exclusive jurisdiction over complaints alleging violations of the Open Meetings Law in the Supreme Court of the State of New York, and alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”

As to the redress sought, admonition of certain members of the school board, The Commissioner noted that it is “well established” that the Commissioner of Education does not have  members any authority to censure or reprimand a board member.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16450.html

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings

Correction officer found guilty of improper use of force

Recommended penalty: 15-day suspension without pay

A correction officer was charged with improper use of force against two inmates. That officer and his partner were also charged with making false reports and failing to obtain medical attention for an injured inmate.

Administrative Law Judge John B. Spooner found petitioner proved that the first officer used improper force against one of the inmates but he recommended dismissal of the rest of the charges. The recommended penalty was a 15-day suspension, given the inconclusive proof as to the precise extent of the force used.

This was the first OATH case involving videoconference testimony by an inmate from a City jail.

The decision is posted on the Internet at:

Dep't of Correction v. Wingate (in PDF), OATH Index Nos. 1490/12 & 1491/12

Employee found guilty of being intoxicated while on duty

Recommended penalty: termination

An office worker was charged with being intoxicated at work on four occasions during a one-month period.

Administrative Law Judge Kevin F. Casey sustained two of the charges. He rejected as implausible respondent’s claim that his medications and illnesses cause a variety of symptoms, including dizziness and vomiting, which give people the mistaken impression that he was intoxicated, in view of proof that respondent was diagnosed with acute alcohol intoxication at a hospital on one of the charged dates.

Given respondent’s prior disciplinary record -- which included a 40-day suspension for similar, recent misconduct -- and in the absence of evidence of rehabilitation, ALJ Casey recommended termination of respondent’s employment.

The decision is posted on the Internet at:

Human Resources Admin. v. Anonymous (in PDF), OATH Index No. 212/13

Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Employee's acceptance of an appointment from an open-competitive eligible list to another position may be deemed a resignation from the employee's former position

Supreme Court denied the petition of an individual seeking to annul the appointing authority’s:

[a] terminating him from his from his position during the required probationary period: and

[b] declining to reinstate the individual to his former “permanent position.”

According to the decision, the individual, then serving as a “Computer Aide,” was appointed to the position of “Computer Science Technician (CST), Level II” from an open-competitive eligible list.

The Appellate Division vacated the Supreme Court’s ruling and remanded the matter for a determination if the individual “effectively resigned* from his permanent position.”

The court explained that while an individual appointed from an open-competitive eligible list to the position from which he or she had been terminated during the probationary period would not be entitled to reinstatement to his or her prior, permanent position “if he voluntarily accepted his appointment to the new position, which would constitute an effective resignation from his prior, permanent position,” in this instance there was a triable issue of fact as to whether the individual “voluntarily accepted the appointment to the subsequent, probationary position.” Accordingly, the Appellate Division remanded the matter to Supreme Court for its further consideration.

A corollary issue that the Supreme Court may be required to explore: was the individual “promoted” to his or her new position within the meaning of the Civil Service Law? §63.1 of the Civil Service Law provides, in pertinent part, as follows:

When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.

Typically “promotion” is the word of art used to describe the advancement of an individual from a lower grade position to a higher-grade position in the “line of promotion.” In the absence or exhaustion of a “promotion list,” an appropriate “open-competitive eligible list” may be used to fill the vacancy.

Indeed, in situations where a promotion examination is not expected to produce sufficient eligibles to fill all the vacancies, actual and anticipated, during the life of the eligible list, an open-competitive examination may be authorized to be held simultaneously with the promotion examination, with the resulting open-competitive eligible list to be certified upon the exhaustion of the promotion eligible list.

In Bethel v McGrath-McKechnie, 95 N.Y2d 7, the Court of Appeals ruled that an individual who accepts an original appointment to a position from an open-competitive examination effectively resigned from his or her former position. The Court of Appeals decided that Bethel had not been promoted and thus Section 63(1) did not apply to her situation.

Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said that Section 63 provides job security to a permanent employee who is transferred or promoted to a position in which he or she is required to serve, but does not satisfactorily complete, a probationary period.

* Typically a resignation from a position is required to be in writing to be effective.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00397.htm

If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required

If the question before a court is one of pure legal interpretation of statutory terms, deference to the agency's interpretation of the statutory term in question is not required

Kaslow v City of New York, 2013 NY Slip Op 00210, Appellate Division, Second Department

In this CPLR Article 78 proceeding David Kaslow asked Supreme Court to review a determination of the New York City Employees' Retirement System [NYCERS]. 

Kaslow had retired from employment with the New York City Department of Correction [DOC]. NYCERS however, had denied his request for service credit for his prior employment with the New York City Department of Environmental Protection [DEP] for purposes of determining his retirement allowance.

While Kaslow had contended that he was entitled to service credit for his prior employment with DEP, NYCERS said that in accordance with Retirement and Social Security Law §504-a, Kaslow, as a member of the Tier 3 CO-20 retirement plan, was not entitled to service credit for his civilian service with DEP prior to his employment with DOC.

Supreme Court granted Kaslow’s petition, holding that his service with the City's Department of Environmental Protection should have been credited. NYCERS and the City of New York appealed the court’s ruling.

The Appellate Division, noting that "An agency's interpretation of the statutes and regulations that it administers must be given great weight and judicial deference, so long as the interpretation is neither irrational, unreasonable nor inconsistent with the governing statute,'" said that in the event the question is one of pure legal interpretation of statutory terms, “deference to the agency is not required."

In this instance, said the court, NYCERS's interpretation of the term "credited service," was irrational, unreasonable, and inconsistent with the other applicable statutes governing the retirement benefits of officers employed with the DOC.

Accordingly, and under the circumstances presented in this instance, the Appellate Division concluded that for purposes of determining Kaslow retirement allowance upon his retirement from DOC, his creditable civilian service with DEP should have been included in NYCERS's calculation of his benefits, and, thus, Supreme Court had properly granted Kaslow’s petition.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00210.htm

Decisions by OATH Administrative Law Judges

Decisions by OATH Administrative Law Judges

New York City Office of Administrative Trials and Hearings 

Firefighter admitted using cocaine

Penalty recommended: termination and forfeiture of the vesting his pension recommended

A firefighter who tested positive for cocaine admitted to using the drug but argued that he should be permitted to vest his pension and retire when eligible to do so.

Administrative Law Judge Alessandra F. Zorgniotti noted that pursuant to the Department’s “zero tolerance policy,” termination of employment is the usual penalty for a first time positive test, in the absence of exacerbating or extenuating circumstances.

Judge Zorgniotti found that respondent failed to present sufficient evidence in mitigation to justify a lesser penalty and recommended termination of the individual’s employment, without an allowance that his pension be permitted to vest fully.

The decision is posted on the Internet at:

Fire Dep’t v. Arcello (in PDF), OATH Index No. 109/13 

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

New York State Comptroller Thomas P. DiNapoli to classify financial condition of local governments to identify local governments experiencing financial strain

On January 28, 2013, State Comptroller Thomas P. DiNapoli announced that his office has finalized plans to implement a statewide fiscal monitoring system that would publicly identify local governments experiencing financial strain. The monitoring system will include nine financial indicators, such as cash-on-hand and patterns of operating deficits, together with broader demographic information like population trends and tax assessment growth. The system will start by analyzing those localities whose fiscal year ended December 31, 2012 and later apply it to villages and school districts whose fiscal years end at various periods throughout the year.

DiNapoli’s office drafted the ‘early warning’ monitoring system in September 2012 and shared details of the proposal with all of the state’s local governments and school districts for their review during a 60-day comment period. More than 85 local government and school district officials, as well as a number of affiliated organizations, submitted comments.

Using data already submitted by more than 3,000 local governments, DiNapoli’s office will calculate and publicize an overall score of fiscal stress for approximately 2,300 municipalities and school district across the state. They will be listed as in “significant fiscal stress,” in “moderate fiscal stress,” “susceptible to fiscal stress,” or “not in fiscal stress.”

Once the monitoring system has identified local governments and school districts experiencing fiscal stress, an array of services will be offered by DiNapoli’s office including budget reviews, technical financial assistance, guidance on multi-year financial planning, financial management publications and training.

Additional information concerning the Comptroller’s fiscal stress monitoring system is posted on the Internet at: www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

Retirement to avoid disciplinary action

Retirement to avoid disciplinary action

A Los Angeles Unified School District teacher arrested and accused of sexually abusing students retired from his position before administrative disciplinary action had been initiated by the school district. School District Superintendent John Deasy, when asked what action the school district planned to take responded “Can you go back and fire someone who’s already retired?”*

An appointing authority of a New York State or political subdivision of the State is able do just that insofar as certain employees are concerned.

For example, 4 NYCRR 5.3(b), which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides, in pertinent part, provides that, Resignation, provides: that  “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his termination shall be recorded as a dismissal rather than as a resignation."** Many local civil service commissions have adopted a similar rule.

Presumably the appointing authority could elect to disregard a “retirement” under similar circumstances.***

In the case of an individual serving in a position in the classified service not otherwise entitled to a pre-termination disciplinary hearing pursuant to law or a collective bargaining agreement, the appointing authority presumably could elect to disregard the resignation, schedule a disciplinary hearing in the exercise of its discretion and in the event the individual is found guilty of the charge[s], record the separation as a “termination for cause” rather than as a resignation.

Undertaking such a disciplinary action could be significant with respect to employment in the public service in the future as application forms for employment or examination with the State or a political subdivision of the State typically  include the following questions.

1. Were you ever discharged from any employment except for lack of work, disability or medical condition?  [ ] yes  [ ] no  

2. Did you ever resign from any employment rather than face discharge? [ ] yes  [ ] no 

Failing to answer these questions correctly could result in the applicant being disqualified for such employment pursuant to §50.4(e), and, or (f) and, or (g) of the Civil Service Law by the responsible Civil Service Commission or Personnel Officer.

Many local civil service commissions and personnel officers have promulgated rules similar to 4 NYCRR 5.3(b).

*  See Los Angeles Times article on the Internet at:

http://latimesblogs.latimes.com/lanow/2013/01/teacher-molestation-principal-ignored-allegation.html

** State Education Law §1133.1 provides that “[a] school administrator or superintendent shall not make any agreement to withhold from law enforcement authorities, the superintendent or the commissioner, where appropriate, the fact that an allegation of child abuse in an educational setting on the part of any employee or volunteer as required by [Article 23-B of the Education Law] in return for the resignation or voluntary suspension from his or her position of such person, against whom the allegation is made.

*** See Mari v. Safir, 291 AD2d 298, leave to appeal denied, 98 NY2d 61

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 January 21 - 25, 2013 [Click on the caption to access the full report]

DiNapoli Approves Terms of $3.14 Billion Tappan Zee Bridge Contract

State Comptroller Thomas P. DiNapoli last Friday announced he has approved a $3.14 billion contract between the state Thruway Authority and Tappan Zee Constructors to design and build the new Tappan Zee bridge.


Officers of Albany Nanotech Complex Safeguarding Public Funds

Fuller Road Management Corp., the not for profit corporation that runs the State University at Albany’s College of Nanoscale Science and Engineering, is fulfilling its duties to support and provide appropriate internal controls over operations and activities, and promoted an ethical business climate at the multi–billion dollar facility, according to a report released Friday by State Comptroller Thomas P. DiNapoli.


DiNapoli: State Tax Revenues Up, But Still Lag Projections

Tax collections through December totaling $46.4 billion were $48.3 million below the state’s latest estimates and $685.3 million below initial estimates in April. Higher than anticipated personal income tax collections in December likely reflect income paid before federal tax increases take effect in 2013 for high income taxpayers, New York State Comptroller Thomas P. DiNapoli said last week in releasing the December cash report.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of:

the City of Beacon;

the Midway Fire District;

the Niagara Falls Housing Authority;

the Orleans County;

the Town of Otto; and,

the Village of Spring Valley.

Department of Health Medicaid Overpayments for Out-of-State Ambulatory Surgery Services (Follow-Up) (2012-F-26)

An initial audit report examining whether DOH was appropriately paying out-of-state providers for ambulatory surgery services provided to New York State Medicaid recipients found $12.2 million in actual and potential Medicaid overpayments for such services during the audit period. Following up, auditors found DOH and the Medicaid Inspector General made progress in addressing the issues identified in the initial audit. This included the recovery of $1,309,960.

Department of Health Monitoring of Medicaid Payments for Nursing Home Bed Reserve Days (Follow-Up) (2012-F-28)

An initial audit examined whether nursing home claims submitted to Medicaid for hospital bed reserve days were appropriate. During the five year audit period ended March 31, 2010, Medicaid paid $28 million for bed reserve claims that exceeded the bed reserve day limit. However, because reimbursement rates were the same for both standard and reserve care during our audit period, auditors determined no significant overpayments occurred. Auditors recommended DOH remind nursing homes of the correct way of coding for standard nursing home days and bed reserve days and implement controls within eMedNY to prevent payment of claims for bed reserve days in excess of prescribed limits. In a follow-up, auditors found DOH and the Office of the Medicaid Inspector General have taken significant actions in correcting the problems identified in the initial report.

Office of General Services Selected Employee Travel Expenses (2012-S-92)

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 as well as other outliers. These employees incurred more than $100,000 in travel expenses during the three year period ending March 31, 2011. Four of these employees worked at the Office of General Services (OGS) and had travel costs totaling $206,494. Auditors found the travel expenses for the four OGS employees selected for audit were documented and adhered to state travel rules and regulations.

New York State Department of Taxation and Finance Selected Employee Travel Expenses (2012-S-95)

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 as well as other outliers. 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 Department Taxation and Finance with outliers in the areas of train fare, fuel and other miscellaneous travel expenses. The employees travel costs totaled $91,686. Auditors found that the travel expenses for the three employees selected for audit were documented and adhered to state travel rules and regulations.

Department of Agriculture and Markets Quality of Internal Control Certification (2012-S-47)

In 1987, the Legislature passed the New York State Governmental Accountability, Audit and Internal Control Act requiring State agencies and public authorities to each institute a comprehensive system of internal controls over their operations. By April 30 each year, DOB requires each covered agency to certify compliance with the act. Agriculture and Markets’ Internal Control Certification was submitted more than four months after the April 30 deadline, the department's certification did not provide an adequate level of detail describing specific actions it will take to address its partial compliance assessment of its internal audit function. Auditors recommended the department: re-examine priorities to accommodate the timely submission of the Internal Control Certification; provide appropriately detailed responses to questions as requested in the annual Internal Control Certification; and expand and enhance the internal control training and education program to cover all aspects of internal controls for all staff levels.

Tuition Assistance Program, Pace University (2012-T-1)

Auditors determined that Pace’s certification procedures are appropriately designed and were substantially complied with during the audit period for the transactions we tested. Auditors concluded there is not a high risk that a significant number of students certified for TAP are not eligible for awards.  Nonetheless, tests did disclose ten awards totaling $21,236 that school officials incorrectly certified in error.