Decision of the Week - Applying the provisions of Civil Service Law §§71, 72 and 73

NYPPL's Decision of the Week for the Week ending May 11, 2013

Applying the provisions of Civil Service Law §§71, 72 and 73

Allen v City of New York, 2013 NY Slip Op 50717(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

This decision could serve as a model explanation of the critical elements to be considered and addressed in applying the provisions of Civil Service Law §§71, 72 and 73. It is set out in its entirety below.

Supreme Court, New York County

In the Matter of the Application of Lionel Allen, Petitioner, against The City of New York and the New York City Department of Environmental Protection, Respondents.

102624/12

ATTORNEY FOR THE PLAINTIFF :
Firm: MARY J. O'CONNELL [General Counsel, DC-37]

ATTORNEY FOR THE RESPONDENTS

Firm: CORPORATION COUNSEL – City of New York

Alexander W. Hunter Jr., J.

The application by petitioner for an order pursuant to Article 78 of the CPLR, declaring that respondents improperly terminated petitioner pursuant to Civil Service Law §73 and failed to satisfy due process requirements for termination pursuant to Civil Service Law §71, and in the alternative, failed to satisfy due process requirements for termination pursuant to Civil Service Law §73, is granted.

As a preliminary matter, it must be noted that the Workmen's Compensation Law was enacted in 1914 as such, but the title was changed to the Workers' Compensation Law in 1978 to acknowledge the significant presence of women in the work force.

Petitioner was employed by the New York City Department of Environmental Protection ("DEP") from on or about May 13, 1989 until his termination on January 6, 2012. Petitioner worked for the DEP in the Bureau of Water Supply with the title of Watershed Maintainer. Petitioner was originally terminated under Civil Service Law §73, which was addressed in the first motion sequence of the instant proceeding. However, after the commencement of the instant proceeding, the DEP rescinded its termination of petitioner pursuant to Civil Service Law §73 and terminated him pursuant to Civil Service Law §71 by letter dated December 14, 2012. The effective date of petitioner's termination remained January 6, 2012. Thereafter, motion sequence one was withdrawn and this court so ordered a stipulation allowing the instant amended petition to be filed in order to address petitioner's termination under Civil Service Law §71.

On February 3, 2010, petitioner slipped and fell while working to deice the grounds outside the Kensico Reservoir laboratory, which resulted in injuries to his right shoulder and knees. Petitioner promptly informed his supervisor at the DEP of the accident and submitted a workers' compensation claim. Petitioner consulted his primary care physician within several days of the accident and then in March 2010 he went to see Dr. Adam Soyer ("Dr. Soyer"), an orthopedic surgeon. Although petitioner initially returned to work, he took off numerous days between March 2010 and August 2010 due to a delay in the processing of his workers' compensation authorizations for diagnostic tests and treatment. Petitioner communicated to his supervisors that the cause of his increased use of leave time was attributed to his occupational injuries. Petitioner ultimately received authorizations for an MRI and a shoulder surgery with postoperative physical therapy in September 2010 and October 2010, respectively. A second shoulder surgery was later authorized and performed on or about August 3, 2012.

By letter dated September 29, 2010, petitioner informed the DEP that he was unable to return to work due to his shoulder injury and requested workers' compensation leave as he had exhausted his sick and annual leave by that time. Petitioner attached a note from Dr. Soyer, dated September 22, 2010, recommending that petitioner remain out of work from September 27, 2010 through November 1, 2010. An undated addendum to the September 29 letter stated that petitioner's request for workers' compensation leave had been changed in accordance with a second note from Dr. Soyer, dated October 25, 2010, which recommended that petitioner remain out of work pending authorization of the shoulder surgery.

The DEP granted petitioner leave for various periods of times from September 30, 2010 through November 1, 2010. However, as a matter of policy, the DEP does not accept doctors' notes indicating an indefinite period of leave. The DEP subsequently marked petitioner "absent without leave" for every work week from November 29, 2010 through December 30, 2011. By letter dated April 18, 2011, the DEP informed petitioner that he was required to provide continued proof of disability on a monthly basis. In addition, the DEP informed petitioner that he was required to provide information regarding his medical condition and when he would be able to return to work by April 29, 2011, or the DEP would consider petitioner absent without leave and take appropriate action.

By letter dated July 27, 2011, the DEP preferred charges against petitioner in accordance with Civil Service Law §75 and scheduled an informal conference. Civil Service Law §75 provides for removal for incompetency or misconduct shown after a hearing. Petitioner did not appear at the informal conference. The DEP did not pursue this method of termination and the charges preferred against petitioner were never filed with the Office of Administrative Trials and Hearings.

By letter dated December 5, 2011, the DEP gave petitioner a notice of intended action under Civil Service Law §73. Civil Service Law §73 provides that an employee may be terminated when he is continuously absent from his position for one year or more due to a disability, "other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law...."* Petitioner did not respond to this letter.

By letter dated January 6, 2012, the DEP gave petitioner a notice of termination pursuant to Civil Service Law §73, which stated that petitioner's employment with the DEP was thereby terminated because of his absence from work since November 8, 2010 due to a non-work related disability.

In January 2012, petitioner's attorney contacted the DEP to demand that it rescind petitioner's termination pursuant to Civil Service Law §73 because petitioner's absences from work were caused by an occupational injury. Petitioner would have been more properly terminated under Civil Service Law §71, which provides for reinstatement after an employee has been separated from service due to a disability caused by an occupational injury as defined in the workmen's compensation law and further entitles the employee to a leave of absence for at least one year.

In an email sent from the DEP's counsel to petitioner's counsel dated January 18, 2012, the DEP explained that it had proceeded with a non-disciplinary termination under Civil Service Law §73 in order to give petitioner the ability to be reinstated to his position after presenting medical documentation showing his fitness to return to work, which would not have been an option if petitioner was terminated under Civil Service Law §75 based on abandonment of his job. In addition, petitioner retained the same rights to reinstatement under Civil Service Law §71 and Civil Service Law §73.

After a lengthy appeal, the Workers' Compensation Board issued a notice of decision on April 12, 2012, directing petitioner's employer or insurance carrier to pay workers' compensation benefits for various past periods from December 2010 and to continue payments.

A non-probationary public employee possesses a constitutional property interest in his employment. See, Cleveland Bd. of Educ. v. Loudermill, 470 US 532 (1985); Faillace v. Port Auth. of NY & N.J., 130 AD2d 34 (1st Dept 1987). "In the context of termination from civil service employment under Civil Service Law §73, due process requires notice and some opportunity to respond.'" Matter of Hurwitz v. Perales, 81 NY2d 182, 185 (1993), citing Matter of Prue v. Hunt, 78 NY2d 364, 369 (1991). The due process requirements under Civil Service Law §71 should be at least as strict as those provided under Civil Service Law §73 as the former "affords greater procedural protections and opportunities for reinstatement." Matter of Allen v. Howe, 84 NY2d 665, 673 (1994).

This court finds that due process requires notice and some opportunity to respond before an employee is terminated from civil service employment under Civil Service Law §71.

There is no dispute that petitioner was improperly terminated under Civil Service Law §73 because his absences were due to a disability resulting from an occupational injury as defined in the workmen's compensation law. The DEP was admittedly aware all along that petitioner's injuries were occupational. The DEP belatedly realized its error and retroactively terminated petitioner under Civil Service Law §71. The DEP should not be rewarded for confusing an employee by continually changing its basis for termination from one section to another. Regardless, petitioner was improperly terminated because the DEP did not provide petitioner with a notice of intended action under Civil Service Law §71. Petitioner had no opportunity to respond to the specific charges leveled against him, which led to his termination.

The parties remaining contentions are without merit.

Accordingly, it is hereby,

ADJUDGED that the application by petitioner for an order, pursuant to Article 78 of the CPLR, declaring that respondents improperly terminated petitioner pursuant to Civil Service Law §73 and failed to satisfy due process requirements for termination pursuant to Civil Service Law §71, is granted with costs and disbursements to petitioner; and it is further

ADJUDGED and DECLARED that respondents' termination of petitioner was in violation of its duties under New York City Rules and Regulations, New York State Civil Service Law, and the New York State and United States Constitutions; and it is further

ADJUDGED that the final determination of respondent DEP, dated January 6, 2012, terminating petitioner as a Watershed Maintainer, is vacated and annulled and petitioner is reinstated to said position with any and all benefits to which he was lawfully entitled from January 6, 2012, the date of termination.

Dated: May 2, 2013

ENTER:

________________________

J.S.C.

* NYPPL Comment: Although the employee must be absent on leave pursuant to §72 continuously for period of one year or longer to trigger the appointing authority’s ability to elect to terminate the individual pursuant to §73, the appointing authority may, as an exercise of discretion, terminate an employee absent on §71 Worker’s Compensation Leave after he or she has been absent on such leave due to the same injury or disease for an “accumulative period” of one year or longer. However, neither §71 nor §72 requires the termination of the employee after he or she has been absent for the requisite minimum period of such a leave.

Educator disciplined after posting comments on an Internet social media website

Educator disciplined after posting comments on an Internet social media website

Supreme Court granted an educator’s petition to set aside the hearing officer's determination that led to the termination of her employment with the New York City Department of Education following a disciplinary hearing “to the extent of remanding the matter for the imposition of a lesser penalty.” The Appellate Division affirmed the lower court’s ruling.

According to the decision, the educator had posted comments on a social media website on the Internet alluding to a tragedy involving an unknown student at a different school. Although the court said that the comments “were clearly inappropriate,” it explained that the educator’s purpose was to “vent her frustration only to her online friends after a difficult day with her own students.”

Initially the educator denied the incident but she subsequently admitted to making the comments at the disciplinary hearing. She also acknowledged that the comments were inappropriate and offensive and repeatedly expressed remorse at having posted them.

The Hearing Officer found that the educator had engaged in a plan with her friend to mislead investigators right after the allegations surfaced. However, the Appellate Division said that Supreme Court “reasonably concluded that the educator’s actions were taken out of fear of losing her livelihood rather than as part of a premeditated plan.”

Under the circumstances, and in consideration of the educator’s not having ever before been the subject of a disciplinary action during her 15-year career and her avowing that she would never engage in a similar act again, the Appellate Division agreed with the Supreme Court’s finding that the penalty of termination was “shocking to one's sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03272.htm

Educator disciplined after posting comments on an Internet social media website

Supreme Court granted an educator’s petition to set aside the hearing officer's determination that led to the termination of her employment with the New York City Department of Education following a disciplinary hearing “to the extent of remanding the matter for the imposition of a lesser penalty.” The Appellate Division affirmed the lower court’s ruling.

According to the decision, the educator had posted comments on a social media website on the Internet alluding to a tragedy involving an unknown student at a different school. Although the court said that the comments “were clearly inappropriate,” it explained that the educator’s purpose was to “vent her frustration only to her online friends after a difficult day with her own students.”

Initially the educator denied the incident but she subsequently admitted to making the comments at the disciplinary hearing. She also acknowledged that the comments were inappropriate and offensive and repeatedly expressed remorse at having posted them.

The Hearing Officer found that the educator had engaged in a plan with her friend to mislead investigators right after the allegations surfaced. However, the Appellate Division said that Supreme Court “reasonably concluded that the educator’s actions were taken out of fear of losing her livelihood rather than as part of a premeditated plan.”

Under the circumstances, and in consideration of the educator’s not having ever before been the subject of a disciplinary action during her 15-year career and her avowing that she would never engage in a similar act again, the Appellate Division agreed with the Supreme Court’s finding that the penalty of termination was “shocking to one's sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03272.htm

Application seeking the removal of the school superintendent found fatally defective because it failed to contain the language required by the Commissioner’s regulations

Application seeking the removal of the school superintendent found fatally defective because it failed to contain the language required by the Commissioner’s regulations*
Decisions of the Commissioner of Education, Decision No. 16,479

Linda Wallace, alleging that school superintendent Randy Richards made “inaccurate, misleading and designed to intimidate voters” in connection with the adoption of a school budget, asked the Commissioner to remove Dr. Richards from his position.

The Commissioner dismissed Wallace’s application for technical reasons, explaining that Wallace's application for Dr. Richards’ removal must be denied because the notice of petition was defective.

Here the Commissioner’s regulations require that the notice accompanying a removal application specifically advise the school officer that an application is being made for his or her removal from office (see 8 NYCRR §277.1 [b]). Here, however, Wallace failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.

The Commissioner said that “A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.

Notwithstanding the dismissal of Wallace’s application on procedural grounds the Commissioner noted that had Wallace’s the application not been denied on procedural grounds, it would be denied on the merits.

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.

Further, in an appeal to the Commissioner, a 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.

The record indicates that Dr. Richards “adequately explained the basis for his statements regarding the impact of a contingency budget in relation to current levels of district funding. Although Wallace may disagree with Dr. Richard’s approach, she has not demonstrated that [Dr. Richard’s] action was motivated by a wrongful purpose."

To the extent that Wallace sought a determination as to whether Dr. Richards’ actions were in the best interest of the district, the Commissioner said this aspect of the appeal must be dismissed as it is well established that the Commissioner “does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310.”

Turning to a “final” administrative matter, the Commissioner noted that Dr. Richards had requested that the Commissioner issue a certificate of good faith pursuant to Education Law §3811(1) to him. Such certification is solely for the purpose of authorizing the board to indemnify Dr. Richards for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a school district officer.

It is appropriate to issue such certification unless it is established on the record that the requesting officer acted in bad faith. In view of the fact that Wallace’s application was dismissed on procedural grounds and there was no finding that Dr. Richards acted in bad faith, the Commissioner certified that “solely for the purpose of Education Law §3811 [Dr. Richard] appears to have acted in good faith.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16479.pdf

* See, also, Application of Stacia Kroniser, Decisions of the Commissioner of Education, Decision No. 16,469, posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/documents/d16469.pdfand the Appeal of Stacia Kroniser, Decisions of the Commissioner of Education, Decision No. 16,470, posted on the Internet at:  

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16470.pdf

Strange Bedfellows – How the Commissioner’s Edict on “Quiet Agreements” Aligned Teachers’ Unions and School Districts

Strange Bedfellows – How the Commissioner’s Edict on “Quiet Agreements” Aligned Teachers’ Unions and School Districts by Edward A. Trevvett, Esq. Source:  NYMUNIBLOG - http://nymuniblog.com/?author=1 - Published by Harris Beach PLLC as a public service. Reproduced with permission. Copyright ©2013 -  All rights reserved.

"The New York State Education Department has managed to create quite a hullabaloo with its April 26, 2013* memo to school district and BOCES superintendents declaring void all “quiet agreements” between districts and their teachers’ unions that mitigate the use of this year’s student assessments in teachers’ APPR growth scores, particularly when the resulting teacher rating is “ineffective.”  At the heart of the matter are the new Common Core student assessments that began this year, which in turn reflect on teachers’ APPR scores and performance ratings.  The Common Core Standards, which have the laudable goal of making our children better prepared for college and careers, concomitantly dramatically increases the rigor of student assessments.  Teachers unions and school districts expect that student assessment scores based on the new Common Core Standards will be significantly lower, at least for the first couple of years.  That has led to some districts and unions to negotiate what the Commissioner of Education calls “quiet agreements” outside the APPR plans they jointly submitted to SED. The agreements set forth how the student assessments will be mitigated as a factor in a teacher’s APPR rating for the first year of the new APPR implementation. In one such “quiet agreement” entered into between the Buffalo City School District and its teachers union on January 15, 2013, the District promised not to use the first year of an ineffective rating to base the needed two years of consecutive ineffective evaluations as grounds to bring formal disciplinary charges against a tenured teacher for termination.

"That agreement between the Buffalo City School District and its teachers apparently rankled SED and resulted in its April 26 memowhich states in part:

"As part of the signed certification in each APPR plan, each superintendent (or BOCES District Superintendent) and the presidents of the district’s or BOCES’ board of education and teachers’ and administrators’ union acknowledged that such plan is the sole plan for the APPR of all classroom teachers and principals in the district or BOCES. With respect to all approved APPR plans, the Department considers void any other signed agreements between and among those parties to the extent that such agreements conflict with the approved APPR plan and the requirements of Education Law § 3012-c and Subpart 30-2 of the Rules of the Board of Regents (“regulations”), and does not recognize any such agreements as part of any approved APPR plan. School districts and BOCES must implement the terms of their approved APPR plans consistent with the requirements of Education Law § 3012-c and the regulations. (emphasis added)

"In response to SED’s April 26 memo, the New York State United Teachers (NYSUT) union wrote a scathing letter to SED Commissioner John King on April 30, 2013, repudiating SED’s position that it has the authority to void agreements negotiated under the Taylor Law. In that letter, NYSUT President Richard C. Iannuzzi states:

"I am writing concerning Dr. Rafal-Baer’s April 26 memorandum to school and district superintendents.

"While SED has the authority to approve APPR plans, it has no authority, beyond that limited power, to void or to pass on the legality of any agreement negotiated under the Taylor Law. Further, SED has no authority to issue a general pronouncement about the validity of Taylor Law agreements it has not reviewed and has no legal authority to review. Accordingly, we have advised each of our locals that we will take every appropriate measure to enforce any Taylor Law agreement negotiated in good faith with its Board of Education. If a dispute arises over the legality of any such agreement, the issue will be decided by PERB or the courts, not by SED.  (emphasis added)

"Dr. Rafal-Baer’s memo is an unfortunate continuation of SED’s repeated attempts to undermine Education Law 3012-c’s collective bargaining provisions. NYSUT continues to support the proper implementation of the law, but will not allow the rights of educators to be abused or the voice of educators to be silenced by SED’s attempts to take away their collective bargaining rights.

"SED’s April 26 memo has created what some would view as strange bedfellows in that many, if not most, School Superintendent and BOCES District Superintendents would wholeheartedly agree with NYSUT on this issue.  Insofar as SED’s memo is concerned, the key word in its pronouncement that “the Department considers void any other signed agreements between and among those parties to the extent that such agreements conflict with the approved APPR plan . . . .”  is CONFLICT.  In order to meet their statutory and regulatory requirements to the Commissioner, school districts and BOCES need only confirm that the provisions of their APPR plan are being implemented as set forth and as approved by SED in accordance with Education Law Section 3012-c and Subpart 30-2 of the Commissioner's Regulations.  Any side agreement on when a district or BOCES will or will not pursue disciplinary action under the new amended Section 3020-a provisions are separate and apart from the APPR plan.  The agreements are really about Education Law Section 3020-a(3)(c)((i-a) and not 3012-c.  Under the Section 3020-a amendments, it remains in a district’s discretion, not that of SED, to file disciplinary charges at the local level to terminate a teacher.

"In a press release also issued on April 30, the Commissioner appeared to somewhat minimize the Department’s definitive position set forth in its April 26 memo. In that press release the Commissioner indicated that while he expected “… roughly the same percentage of teachers to be identified in each performance category (Ineffective, Developing, Effective, Highly Effective) this year as last year.  We have asked districts to be thoughtful in their use of the data from this first year of Common Core assessments when evaluating teacher performance and we have every confidence that they will be.”  The Commissioner has failed to define or even hint at his interpretation of “thoughtful” in this high stakes context.  (emphasis added)

"In a postscript to the Buffalo City School District’s “quiet agreement” with its union, The Buffalo News reported that with a $50 million state aide gun to its head, the Superintendent of the Buffalo City School District issued a written statement informing the teachers union that “The state Education Department has determined that the memorandum of understanding dated Jan. 15, 2013, between the Buffalo City School District and the Buffalo Teachers Federation is void.”  Her written statement further clarifies that “The district will proceed in accordance with the department’s determination.”  

"In response, the union issued its own statement saying, “As far as we’re concerned, the agreement that we reached stands, and we will take whatever action is necessary to enforce that agreement, because it was fair.” BTF President Philip Rumore further stated, “If there has to be a battle, so be it.”

"With these ongoing threats of legal challenges over testing, data and teacher evaluations as set forth by the Commissioner and quickly followed by the Teachers’ Unions – Let the Games Begin!"

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

* NYPPL notes that on April 26, 2013 Governor Andrew M. Cuomo issued the following statement:

"The State Education Department is correct in refusing to recognize any side deals between the Buffalo's teachers union and the school district. The suggested collusion was a borderline legal and ethical fraud on our students and the Buffalo superintendent was right to affirm that no side deals will be recognized. We promised the students’ performance - they deserve it and they will have it."

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