Employer’s termination of probationary employee overturned after its repeated failure to appear before the court

Employer’s termination of probationary employee overturned after its repeated failure to appear before the court

2013 NY Slip Op 05207, Appellate Division, Second Department

The petitioner [Educator] in this action was appointed as a probationary assistant principal at a New York City Department of Education [DOE] middle school. Prior to the end of the Educator’s probationary period the middle school principal informed Educator that DOE intended to discontinue her employment based on an unsatisfactory rating. 

Educator filed a timely Civil Practice Law and Rules Article 78 petition challenging DOE’s determination.

DOE moved to dismiss Educator’s petition for “failure to state a cause of action” 

However when DOE failed to appear before Supreme Court on the return date of its motion, the court granted Educator’s petition and, in effect, denied DOE’s motion.

DOE then filed a motion asking Supreme Court to vacate its order but when DOE failed to answer the “call of the calendar” on the return date of its motion to vacate the earlier order of Supreme Court, the court denied the motion in an order that directed DOE to appear for a contempt hearing.

Ultimately Supreme Court did not hold DOE in contempt and DOE again moved again to vacate the court’s order that, in effect, had granted Educator’s petition.

DOE, however, again failed to appear on the return date of its “renewed” motion and Supreme Court, upon DOE’s default, issued an order dated January 14, 2010 that, in effect, reinstated its initial decision granting Educator’s petition.

DOE yet again asked the court to dismiss Educator’s petition, which motion Supreme Court granted.

Educator appealed and the Appellate Division agreed with her argument that Supreme Court erred in granting DOE’s motion to vacate the court’s initial order, dated May 30, 2006, as it was untimely, having been made more than one year after DOE received actual notice of the order.

In the words of the Appellate Division, this convoluted series of events developed as follows:

1. In a proceeding pursuant to CPLR Article 78 to review a determination of the New York City Department of Education [DOE] made in 2006 discontinuing the Educator's probationary service as an assistant principal,
2. the Educator appeals, as limited by her brief, from so much of an order and judgment (one paper) of the Supreme Court, Kings County dated August 2, 2011,
3. as granted the motion of the DOE, in effect, pursuant to CPLR 5015(a)(1), (a) 3. to vacate an order of the same court dated January 14, 2010,
4. entered upon DOE’s failure to appear on the return date,
5. denying DOE’s motion to vacate an order of the same court, dated May 30, 2006, 
6. also entered upon DOE’s failure to appear on the return date, granting the petition and, in effect,
7. denying that branch of DOE’s motion which was to dismiss the petition pursuant to CPLR 3211(a)(7), and (b) to vacate the order dated May 30, 2006,
8. thereupon granted that branch of DOE’s motion which was to dismiss the petition pursuant to CPLR 3211(a)(7), and, in effect, 
9. dismissed the proceeding brought by Educator

The bottom line: the Appellate Division remitted the matter to the Supreme Court for the entry of a judgment in favor of Educator and against DOE, granting Educator’s petition

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05207.htm

Abandonment of a position

Abandonment of a position

Ciccarelli v West Seneca Central School District, 107 AD2d 105

In a case challenging a teacher’s alleged abandonment of her position, the Appellate Division rejected a Board of Education’s resolution holding that an educator had abandoned her position and terminating her.

The court said that the burden of proving that the educator had abandoned her tenured teaching position was upon the District. This must be established "by clear and convincing evidence" that a teacher, by a "voluntary and deliberate act" intended to relinquish her teaching position and forfeit her tenure rights. Otherwise, a tenured teacher may be terminated only in accordance with §3020-a of the Education Law.

In a similar situation involving an employee in the classified service [teachers are in the unclassified service] a former rule of the New York State Civil Service Commission [4 NYCRR 5.3(d)] providing that a State employee absent for a period of ten or more days without an explanation would be deemed to have resigned from his or her position was held to violate the employee's right to due process [Bernstein v Industrial Commissioner, 59 AD2d 678]. However, this type of provision has survived in collective bargaining agreements, [see New York State Off. of Mental Health v New York State Div. of Human Rights, 53 A.D.3d 887].

Employer's use of payroll cards to pay workers under investigation by New York State Attorney General Schneierman

Employer's use of payroll cards to pay workers under investigation by New York State Attorney General Schneierman

Marnie E. Smith, Esq., an attorney with Harris Beach's Labor and Employment Law Practice Group, has posted an item on the NYMUNIBLOG reviewing Attorney General Eric T. Schneiderman’s investigation of the use of "payroll cards” by employers.

Ms. Smith observes that “Payroll cards are used as an alternative to the traditional written paycheck or direct deposit” whereby the employee’s wages “are loaded onto a debit card, which avoids having to cash a paycheck and does not require the employee to have a bank account.”

The full text of Ms. Smith’s posting is on the Internet at: http://nymuniblog.com/?p=3349

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 ending July 13, 2013 [Click on text highlighted in bold to access the full report] 


DiNapoli Finds Millions in Medicaid Overpayments

New York State’s Medicaid program overpaid providers $11.4 million, largely because providers overstated the amounts of Medicare coinsurance charges and incorrect rate changes, according to two audits of the Department of Health released Tuesday by State Comptroller Thomas P. DiNapoli. The state has recovered $3.8 million of these overpayments.

DiNapoli: Long Beach Faces Fiscal Challenges but Moving in Right Direction

Poor budgeting of the prior administration in the city of Long Beach created an $18 million multi–year deficit while also exhausting $21 million in rainy day funds, according to an audit released Thursday by State Comptroller Thomas P. DiNapoli. The audit, which was requested by city officials, was conducted prior to the damage caused Superstorm Sandy.

DiNapoli Releases Bronx Economic Snapshot

The Bronx has made impressive economic gains in recent decades according to a report released Thursday by New York State Comptroller Thomas P. DiNapoli. Population, business and job growth has been strong and the Bronx continued to add jobs even during the Great Recession.

Comptroller DiNapoli Releases Municipal Audits

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

Cattaraugus County;

the Lansing Fire District;

the Town of Fremont; and,

the Middle Island Fire District.

Comptroller DiNapoli Releases School Audits

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

the Child Development Center of the Hamptons Charter School; and,

the Syracuse Academy of Science Charter School.

State Education Department, Rainbow Rhymes Learning Center (Follow-Up) (2012-F-31)

An audit issued in 2010 examined whether selected State Education Department grant payments to Rainbow Rhymes Learning Center were appropriate. Auditors found that Rainbow claimed $473,815 in expenses that were either not adequately supported, not program appropriate or were claimed for a period for which Rainbow was not entitled to receive reimbursement. In a follow-up report, auditors found that of the three prior audit recommendations, one was implemented and two were partially implemented. However, SED has not yet recovered the overpayments.

New York State Thruway Authority, Status of the Board-Approved Capital Plan For 2005-2011 (Follow Up) (2013-F-5)

An audit report issued in 2008 examined the actions taken by the Thruway in monitoring and reporting on the board-approved Capital Plan for 2005-2011. Auditors found the Thruway did not report whether the individual projects were starting and finishing on time and within budget. Furthermore, the authority could not support its decision-making and prioritization of all capital project items. Auditors also found that completing the plan as approved would take longer and cost significantly more than was originally forecast. In a follow-up report, auditors found Thruway officials have made progress in correcting the problems identified. However, additional improvements are needed.

Division of Housing and Community Renewal, Disposal of Electronic Devices (2012-S-101)

Auditors tested a total of 752 electronic devices at both the Albany and the New York City offices. In Albany, two devices still contained general agency information and personal pictures, but none contained personal, private or sensitive information. In New York City, 13 hard drives showed indications that they still contained data. Auditors were unable to locate 17 computer hard drives that had already been removed from computers and were scheduled for shredding. Auditors could also not locate 18 servers listed on the inventory records. Auditors could not locate eight other devices listed on inventory records and found one device recorded as surplus that was still in use.

Department of Corrections and Community Supervision, Seventeen Years of Fraud by the Former Director of the Department of Correctional Services' Food Production Center (Follow-Up) (2012-F-7)

An audit issued in 2010 identified longstanding fraudulent practices committed by former Director of the Food Production Center in Oneida County, Howard Dean. He failed to work on Fridays for 17 years although he claimed to be working a five-day week on his time and attendance records. He also submitted fraudulent travel vouchers and hotel invoices for days he did not stay at a hotel in Rome, N.Y. These practices cost the taxpayers more than a quarter-million dollars. Another quarter million in improper payments occurred because DOCCS failed in its responsibilities to operate in the best interest of the state. In a follow-up report, auditors found DOCCS officials have made progress in addressing the problems we identified in our initial report. Of the five recommendations, three have been implemented and two have been partially implemented.

Tuition Assistance Program - Higher Education Services Corporation, College of Mount Saint Vincent (2011-T-3)

Auditors determined the College of Mount Saint Vincent was overpaid $319,468 because school officials incorrectly certified students as eligible for TAP awards.

Statewide Travel Audits:

As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entities:

State University of New York Upstate Medical Center, Selected Travel Expenses (2012-S-147)

Auditors examined the travel expenses for two individuals paid by SUNY Center with outliers in the area of mileage; one of these individuals also had reimbursements of more than $100,000. In total, auditors examined $175,618 in travel costs associated with these two individuals. Auditors found the travel expenses for the two individuals selected for audit were documented and adhered to state travel rules and regulations.