Educator must serve at least 40% of his or her workday in the tenure area in which he or she claims greater seniority than others in that tenure area for the purposes of layoff

Educator must serve at least 40% of his or her workday in the tenure area in which he or she claims greater seniority than others in that tenure area for the purposes of layoff

Decisions or the Commissioner of Education, Decision 16,480

The school board granted Teacher tenure in the special education tenure area, About two years later the school board adopted a resolution abolishing two special education positions in the special education tenure area and notified Teacher that, as he was one of the least senior persons in the special education tenure area, his services were being discontinued at the end of the school year and that he would be placed on a “preferred eligibility list.”

Teacher, claiming that he was improperly terminated in violation of Education Law §§2510 and 3013 and that he was more senior than five other teachers in the special education tenure area, filed an appeal with the Commissioner seeking an annulment of the district’s determination terminating his services and reinstatement as a full-time teacher of special education, with back pay and benefits.

The school district argued that Teacher [1] failed to meet his burden of demonstrating that he was not one of the least senior teachers in the special education tenure area and [2] that he is not entitled to seniority in the special education tenure area because he did not spend at least 40% of his workday teaching in the special education tenure area.

The Commissioner said that Education Law §3013(2) provides that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure [area] of the position abolished shall be discontinued.” Further, 8 NYCRR 30-1.1(f) [Rules of the Board of Regents] defines seniority as follows: “Seniority means length of service in a designated tenure area ....”

The significant issue in Teacher’s appeal was whether Teacher was one of the two least senior teachers in the special education tenure area. Noting that “In general, seniority may be accrued in a given tenure area only if the service of the educator in such area constitutes 40% or more of the total time spent in the performance of instructional duties (8 NYCRR §30-1.1 [f] and [g])"  the Commissioner ruled that Teacher "has not established that the work he performed was in the tenure area of special education."

Although Teacher did hold permanent certification in special education and was granted tenure in the special education tenure area, the record showed that Teacher never devoted at least 40% of his work time to instruction in special education. Rather, said the Commissioner, the record showed that Teacher’s assignment comprised one special education resource room class and alternative education classes in English, mathematics, social studies and global history.

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief. As Teacher failed to submit any lesson plans or any other evidence to demonstrate that he spent more than 40% of his time in the special education tenure area during any of relevant school years, the Commissioner found that Teacher “never served in the special education tenure area.”

Nor, said the Commissioner, does the prohibition contained in 8 NYCRR §30-1.9 against assigning a professional educator to devote a substantial portion of his or her time in a tenure area other than that in which he or she has acquired tenure without his or her consent apply to these facts as from the “inception of his employment by the Board Teacher never devoted a substantial portion of his time within the special education tenure area and therefore was not a professional educator entitled to the protection of 8 NYCRR §30-1.9."

The Commissioner said that he was “constrained to dismiss this appeal,” and noted that when Teacher commenced his employment with the district the board lacked the authority to offer him a tenured position as a special education teacher. He then took this opportunity to “remind [the] board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16480.pdf

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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The positions of town board member and building administrator for the local housing authority held incompatible under the circumstances

The positions of town board member and building administrator for the local housing authority held incompatible under the circumstances

Informal Opinion of the Attorney General 2013-2

A town board member was hired as a building administrator by the housing authority board members and is currently is holding both positions. The town attorney asked the Attorney General for his views concerning this appointment.

Noting that the town board is vested with the power to appoint and to removal members of the housing authority board member, the Attorney General concluded that the positions of town board member and building administrator for the Authority were incompatible.

The Attorney General explained that the tenure of the members of the housing authority board depends on the determination of the town board. Accordingly, the housing authority board may be unable to impartially supervise its employee who also serves on the town board and thus wields a portion of the town board's appointment and removal power with respect to the housing authority board. Further, opined the Attorney General, “At the least, service as both a member of the town board and housing authority employee will create the appearance of impropriety, which should be avoided to maintain public confidence in the integrity of government.”

Additionally, the Attorney General said that the recusal of the housing authority employee from town board discussion and appointment or removal of housing authority board members would not remedy the incompatibility of the positions. When considering the appointing or removing a housing authority board member who takes part in determining the salary and the terms and conditions of their town board colleague's employment, the impartiality of the remaining town board members would not be free from doubt.

In this instance the housing authority board, which hires the Authority's employees, determines their qualifications and duties, and fixes their compensation, subject to the approval of the town board, results in the housing authority board members exercising these powers over the building administrator who also serves as town board member.

The opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-2_pw.pdf

Employer held liable for employee’s failure to call for assistance when asked to do so by police officers

Employer held liable for employee’s failure to call for assistance when asked to do so by police officers

Filippo v New York City Tr. Auth., 2013 NY Slip Op 03025, Appellate Division, First Department
Jannet Velez v 2013 NY Slip Op 03025, Appellate Division, First Department

Two police officers were injured in a subway station as the result of an individual’s resisting arrest. The criminal act leading to the arrest was committed in the street in the presence of the police officers who chased the perpetrator into the subway station.

Upon entering the station the police officers, who were in plainclothes, displayed their shields and asked the station agent to “call for backup” support. The station agent was inside a locked token booth that was equipped with an Emergency Booth Communication System (EBCS) that would have enabled him to summon help by pressing a button or stepping on a pedal.

Both police offers were injured when the perpetrator put up “a fierce and protracted struggle to resist arrest.” The station agent, however, watched the struggle from his token booth and did not activate the EBCS or make any other attempt to summon help.

The police officers sued the Transit Authority on the theory is that station agent’s failure to call for help constituted negligence which was a proximate cause of their injuries. Although Supreme Court granted the Transit Authority's motion for summary judgment, finding that the station agent was under no duty to call for any assistance, the Appellate Division reversed the lower court’s ruling.

The court explained that Public Authorities Law §1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system and is held to a duty of ordinary care under the particular circumstances of each case.

In Crosland v New York City Tr. Auth. 68 NY2d 165, the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. The Appellate Division said that the trial court’s holding that Crosland had no application in this instance because the plaintiffs were police officers was incorrect.

Noting that General Obligations Law §11-106 gives police officers as well as firefighters, who are injured in the line of duty, “a distinct right of action against tortfeasors that cause such injuries,” the Appellate Division said that the police officer’s lawsuit was not barred by their status as police officers and the Transit Authority's liability was established at trial.

In addition, the court rejected the Transit Authority argument that the evidence did not establish that a timely response on station agent’s part would have prevented the police officer from being injured as “this argument was raised for the first time on appeal” but indicated that if it were properly before the court it “would find it unavailing.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03025.htm

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

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

Issued during the week ending May 4, 2013 [Click on text highlighted in bold to access the full report] 

Entergy Shareholders To Take Up DiNapoli Proposal On Nuclear Power Safety

New York State Comptroller Thomas P. DiNapoli Friday raised concerns with the storage of nuclear fuel at Entergy Inc.’s annual shareholder meeting in Little Rock, Ark. DiNapoli’s shareholder proposal calls for the company to implement a policy to minimize the amount of nuclear waste it stores in spent fuel pools and transfer that waste into dry cask storage.

DiNapoli: State Overtime Costs on the Rise

Overtime earnings at state agencies rose nearly 11 percent in 2012 to $529 million, escalating a trend that began in 2009, according to a report released Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: State Ends Fiscal Year in Solid Position But Challenges Remain

Despite unexpected costs from Superstorm Sandy and a weaker than expected economy, New York State ended state fiscal year 2012–13 in a stable cash position compared to recent years, according to an end of the year report released Monday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: St. Lawrence County Needs Long–Range Financial Plan

St. Lawrence County is coping with cash flow difficulties and a sharp decline in surplus funds, according to an audit issued Thursday by State Comptroller Thomas P. DiNapoli. The audit notes that the county’s weakening fiscal health has resulted in program cuts, tax increases and a potential operating deficit.

Comptroller DiNapoli Releases Municipal Audits

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

the Village of Dresden;

the Village of Hempstead;

the Village of Middleburgh;

the Town of Newfield;

the Town of Pulteney; and

the Village of Whitney Point.

Comptroller DiNapoli School Releases Audits

the Campbell–Savona Central School District; and,

the Maine Endwell Central School District.