A counseling memoranda that includes more than “job related feedback” may constitute disciplinary action

12 Misc 3d 1197(A)

An employee was given a written “counseling memorandum” following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates.

The counseling memorandum, in part, issued by the appointing authority stated:

This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future.

A “counseling memorandum” issued to a permanent employee typically is not considered disciplinary action requiring “notice and hearing.” In this instance, however, the court ruled that the counseling memorandum given to the employee did, in fact, constitute a disciplinary action taken against him and thus was subject to the disciplinary grievance procedures set out in a collective bargaining agreement [CBA]. 

While the CBA specifically provided that “counseling is not discipline,” the court said that the counseling memorandum issued to Harper by his employer also requires that he attend Supervisory Training and Sexual Harassment Prevention Training,. This additional requirement extended beyond the mere "job-related feedback" referred to in the CBA and thus constituted disciplinary action within the meaning of the CBA.

Accordingly, the employee was entitled to administrative due process in the form of a notice of discipline and a hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_51605.htm

Contracting out the recruitment and appointment of substitute teachers

Contracting out the recruitment and appointment of substitute teachers

Appeal of Kim E. Woodarek, Comm. Of Education Decision No. 15,422

The Commissioner of Education ruled that a school district does not have the authority to enter into a contract with a private party to recruit, interview, select, hire and assign employees to render per diem substitute teaching.

The Commissioner applied the rationale set out in the Sweeney decision [(44 Ed Dept Rep 176, Decision No. 15,139)]. In Sweeney it was held that a BOCESdoes not have the authority to contract with a private party for instructional services.

Other appeals in which the Commissioner determined that a board of education lacks authority to provide instructional services through an independent contractor include Appeal of McKenna, 42 Ed Dept Rep 54, Decision No. 14,774; Matter of Friedman, 19 Ed Dept Rep 522, and Decision No. 10,236. [See, also, Education Law §1950(4)].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume46/d15422.htm

Termination and reinstatement to a lower grade position prior to completion of the required probationary period

Termination and reinstatement to a lower grade position prior to completion of the required probationary period

31 AD3d 456

The Appellate Division, Second Department affirmed the termination on an employee prior to the end of his probationary period in a higher level position and his reinstatement to his former, lower grade position.

In response to the employee’s challenging his termination during his probationary period the Appellate Division said that "A probationary employee may be discharged without a hearing and without a statement of reason in the absence of any demonstration that the dismissal was for a constitutionally-impermissible purpose or in violation of statutory or decisional law" citing such decisions as Walsh v New York State Thruway Auth., 24 AD3d 755; Matter of York v McGuire, 63 NY2d 760; and Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist., 1 AD3d 367.

Accordingly, the Appellate Division rejected the employee’s contention that he was entitled to the procedural protections of Civil Service Law §75 as he was removed from his appointed position prior to his satisfactory completion of a one-year probationary period.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05375.htm

State Comptroller holds $12.5 BILLION IN UNCLAIMED FUNDS, some of which may be the property of a New York governmental entity

State Comptroller holds $12.5 BILLION IN UNCLAIMED FUNDS, some of which may be the property of a New York governmental entity

Source: Office of the New York State Comptroller

New Yorkers and others can find out if they are owed some of the state’s $12.5 billion in unclaimed funds using the Comptroller’s Unclaimed Funds database via the Internet at:

https://ouf.osc.state.ny.us/ouf/

However, these are not just unclaimed funds belonging to individuals and businesses. 

The Comptroller also has monies received pursuant to the Abandoned Property Law belonging to counties, cities, towns, villages, school districts and public employee organizations.

For example, the Comptroller currently lists funds belonging to the following entities:

COUNTY OF CATTARAUGUS

INDUSTRIAL DEVELOPMENT AGENCY CCIDA #L83 02 LITTLE VALLEY NY 14755

COLUMBIA GAS TRANSMISSION CORP

CITY OF BUFFALO

C/O CARL DOBOZIN ATTY AT LAW 68 NIAGARA STREET BUFFALO NY 14202

UTICA FIRST INSURANCE CO

TOWN OF JUNIUS

RD 2 BOX 154 3 WATERLOO NY 13165

EXCHANGE INSURANCE CO

VILLAGE OF CHERRRY CREEK

VILLAGE TREASURER CHERRY CREEK NY 14723

NEW YORK STATE ELECTRIC & GAS CORP

BOCES OF NASSAU COUNTY

207 NEWTOWN ROAD PLAINVIEW NY 11803

CITIBANK NA NATIONAL COMPLIANCE GRP

ROCHESTER CITY SCHOOL DISTRICT

C/O 131 W BROAD ST ROCHESTER NY 14614

SCHOLASTIC BOOK CLUBS INC

CSEA LOCAL 1000 AFSCM

143 WASHINGTON AVE CAPITON ST ALBANY NY 12224

STATE OF CALIFORNIA

BOCES TEACHERS ASSOC

2542 2ND AVE SCHENECTADY NY 12303

TD BANK NA

POLICE BENEVOLENT ASSOC TOWN

BOX 89 ARRONK NY 10504

BANKERS TRUST CO

However, those searching for monies that may be due a particular jurisdiction will have to be inventive. For example, monies that could be claimed by the City of Rochester have been filed as belonging to:

CITY CLERK OF ROCHES

CITY CLERKS OFFICE 30 CHURCH STREET R00M 100-A ROCHESTER NY 14614

STERLING COLLISION CENTERS

ROCHESTER CITY

CITY HALL 30 ROCHESTER NY 14614

CCO MORTGAGE CORP HOLDER 014360

ROCHESTER POLICE DEPT

JEANNE MARCIANO SIS 150 PLYMOUTH AVE S S TE 620 ROCHESTER NY 14614

VERIZON WIRELESS

Again, the Comptroller’s Unclaimed Funds database is available via the Internet at:

https://ouf.osc.state.ny.us/ouf/