Unsatisfactory performance rating vacated because of the lack of documentation in the employee’s personnel record

Unsatisfactory performance rating vacated because of the lack of documentation in the employee’s personnel record

2013 NY Slip Op 05598, Appellate Division, First Department

The Appellate Division reversed a Supreme Court's ruling that dismissed a petition challenging a teacher’s annual unsatisfactory performance rating and annulled the unsatisfactory rating given the educator.

The court said that the New York City Department of Education’s [DOE] determination to sustain the unsatisfactory performance evaluation was not rationally based on administrative findings that the teacher had engaged in corporal punishment as “there was no longer any documentation substantiating an instance of corporal punishment in [the teacher’s] personnel file after the parties stipulated to the removal of two disciplinary letters from the file.”

DOE’s "Rating Pedagogical Staff Members" procedure, in pertinent part, provides:

1. That a teacher's evaluation must be supported by documentation in his/her personnel file;

2. That documentation removed from a file through grievance procedures is inadmissible in performance reviews; and

3. That documentation not addressed directly to a teacher is inadmissible in performance reviews, unless it is attached to and part of another document appropriately placed in the teacher's file.

Further, said the court, materials placed in a teacher's personnel file must include a signature and date line for the teacher, evidencing that he or she has read the material and understands that it will be placed in the file, as well as a signature and date line for a witness; unsigned documents are inadmissible in evaluation reviews.

Citing Appeal of Naomi Dowrie [46 Ed Dept Rep 273, Decisions of the Commissioner of Education, Decision No. 15,506, in which the Commissioner of the New York State Department of Education upheld the petitioner's appeal from an unsatisfactory rating on the ground that the respondent had failed to follow its own procedures and had considered material that had been removed from the petitioner's personnel file through the grievance process, i.e., "materials not properly placed in [the] teacher's personal [sic] file," the Appellate Division concluded that there was no documentation in the record to support the unsatisfactory rating give the teacher in this instance.

The court also noted Mangone v Klein, a decision by a State Supreme Court justice in which the court, relying of Dowrie, denied DOE's motion to dismiss the educator’s petition seeking to set aside his unsatisfactory rating upon finding that there was nothing in the teacher's personnel file other than a disciplinary letter that had been ordered to be removed following arbitration related to the allegations against him. [Mangone was not selected for publication in the Official Reports but the decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2007/2007_32475.pdf].

The DOE decision is posted on the Internet at:  http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05598.htm
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Designating a Civil Service Law §75 disciplinary hearing officer and making a final disciplinary determination

Designating a Civil Service Law §75 disciplinary hearing officer and making a final disciplinary determination

6 Misc3d 1012(a), Affirmed 48 AD3d 815*

Civil Service Law §75 provides that the appointing authority may designate an individual to conduct a §75 disciplinary hearing and to make findings of fact and recommend the penalty to be imposed. The appointing authority is to then review such findings and recommendation and make the final determination. Where the appointing authority believes it cannot be impartial or is biased against the accused employee, the appointing authority is to delegate the decision-making authority to some other individual authorized to act in his absence. If no such person is available, then the Rule of Necessity would apply and the appointing authority would have to review the record and make the final determination, notwithstanding being “admittedly biased” or unable to act “impartially.”

Following her termination from her position, the individual [Petitioner] brought an Article 78 action seeking an order declaring that action “illegal, ultra vires, null and void.” State Supreme Court Justice Dickerson granted her petition.

Justice Dickerson’s decision indicates that on May 16, 2002, the Mayor preferred disciplinary charges against Petitioner pursuant to the Civil Service Law Section 75. The charges alleged insubordination and/or misconduct and neglect of duty and/or incompetence to perform the duties of her position.

The Mayor appointed an individual to serve as the Hearing Officer to determine the disciplinary charges. Stein sent his findings and recommendations to the Mayor on January 2, 2004. The Mayor then delegated to an independent arbitrator the full power and authority to make the disciplinary determination after considering Hearing Officer's report and recommendations.

The court ruled that the Mayor's designating an individual to serve as the hearing officer and his delegation of his decision making authority with respect to the charges filed against Petitioner to an independent arbitrator, including authority to make a final determination of those charges and subsequent termination of Petitioner's employment, were illegal, ultra vires, null and void. Justice Dickerson vacated the termination of Petitioner without prejudice to the City to appoint a new Hearing Officer for the purpose of conducting a new disciplinary hearing. He then awarded Petitioner back pay from the date of her termination together with any benefits to which she was entitled.

The decision states that the Mayor was admittedly biased, and, indeed, wanted Petitioner dismissed from her position. However, that bias, said the court, does not necessarily excuse him from the duty of making the final determination in this matter. The delegation must be to a duly qualified individual authorized to act during the absence or inability of the appointing authority not previously involved in the proceedings or charges. Only when there is no such official and one cannot be appointed, and thus no such delegation is possible, does the “Rule of Necessity” apply, permitting an otherwise partial official to make the final determination.”

The court said that an independent arbitrator with no connection "with the governmental employment at issue," was not “a duly qualified individual authorized to act during the absence or inability of the appointing authority. As the Mayor believed he was biased and not impartial, it was the Mayor's responsibility to try to delegate the decision-making authority to either the City's personnel officer, the City Clerk, or to some other individual authorized to act in his absence. If no such person was available, then the Rule of Necessity would apply and the Mayor would have had to make the final determination himself, notwithstanding being “admittedly biased.”

The court then considered Civil Service Law Section 75(2), which states, in pertinent part, "...The hearing upon such charges shall be held by the officer or body having the power to remove the person against whom such charges are preferred or by a deputy or other person designated by such officer or body in writing for that purpose."

But, said Justice Dickerson, the Mayor was neither "the officer or body having the power to remove" nor was he "a deputy or other person designated by such officer or body in writing for that purpose". Under the controlling provision in the City Code, the authority to remove, which is a function of the power to appoint, was not specifically designated to anyone by the officials having that authority.

As to the hearing officer conducting the disciplinary hearing, the court said, “It is readily apparent that there was no written delegation by the appropriate authority to hear Petitioner's disciplinary case”. Jurisdiction was thus lacking and the hearing Officer had no authority to either conduct the disciplinary hearing or to make a report and recommendation regarding his “findings”. 

* The Supreme Court’s decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2005/2005_50033.htm .  

The Appellate Division’s decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2008/2008_01762.htm

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Designation of managerial employees within the meaning of the Taylor Law

Designation of managerial employees within the meaning of the Taylor Law

Matter of Civil Serv. Employees Assn. Inc. Local 1000 AFSCME AFL-CIO v New York State Pub. Empl. Relations Bd., 34 AD3d 884

The Civil Service Employees Association, Inc. [CSEA] sued the Public Employment Relations Board [PERB], challenging a PERB determination designating eight New York State Dormitory Authority [DASNY] employees as managerial within the meaning of Civil Service Law §201(7)(a), the Taylor Law.*

The Appellate Division stated that the scope of its review was limited to determining if PERB’s determination was arbitrary and capricious. It then pointed out that in Lippman v Public Empl. Relations Bd., 263 AD2d 891, it had ruled that courts may defer to PERB's exposition of the terms "management" and "confidential" as they are employed in Civil Service Law §201(7)(a).

A PERB decision clarified the meaning of the phrase "formulated policy."** That ruling indicated that the phrase “formulated policy” must be "sufficiently broad" to include "persons who regularly participate in and influence a process by which the employer makes decisions regarding its mission and the means by which those policy goals and objectives can be best achieved."

The Appellate Division concluded that in this instance PERB's determination designating the eight employees as managerial was neither unreasonable nor arbitrary, noting that all of the job titles at issue were within the Office of Construction, one of the five main divisions headed by managing directors that report directly to the Authority’s executive officers and board.

Consistent with PERB's conclusion that "the organizational structure of DASNY promotes participation in the decision-making process that is more than mere technical advice to single decision-makers," the Appellate Division ruled that although "exclusions for managerial . . . employees are an exception to the Taylor Law's strong policy of extending coverage to all public employees," given the evidence presented PERB's classification of the employees as managerial was neither arbitrary nor capricious.

* Employees designated as either managerial or confidential are excluded from the definition of "public employees" and, as such, are not afforded various benefits provided under the Taylor Law (see Civil Service Law §200 et seq.) with respect to representation for the purposes of collective bargaining. Civil Service Law §201(7)(a) provides: "Employees may be designated as managerial only if they are persons (i) who formulate policy or (ii) who may reasonably be required on behalf of the public employer to assist directly in the preparation for and conduct of collective negotiations or to have a major role in the administration of agreements or in personnel administration provided that such role is not of a routine or clerical nature and requires the exercise of independent judgment."

** Matter of Public Empls. Fedn., AFL-CIO v State of New York, 36 PERB ¶ 3029

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_07936.htm

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Audits of public entities recently issued by New York State's Comptroller Thomas P. DiNapoli

Audits of public entities recently issued by New York State's Comptroller Thomas P. DiNapoli

The State Comptroller audits local governments to assist them in improving their financial management practices. [Click on text highlighted in bold to access the full report.] 

Town of Alexandria – Non-Payroll Cash Disbursements and Fuel Inventory (Jefferson County)
The town’s non-payroll cash disbursements were not always properly authorized, adequately supported or in compliance with statutory requirements. The former supervisor improperly paid 20 claims totaling $19,919 without the audit and approval of the board. Auditors also found internal controls over fuel inventories need to be improved. Records show from June 2011 through December 2011 nearly 4,500 gallons of fuel valued at about $14,600 were not accounted for.

Village of Bolivar – Financial Condition of Water and Sewer Funds (Allegany County)
The village board has not adequately monitored the financial condition of the water and sewer funds. The water and sewer funds do not presently have sufficient resources to repay interfund loans owed to the village general fund without affecting their operations. This lack of available funds resulted from village officials not monitoring and adjusting water and sewer rates to ensure resources were adequate to repay the loans.

Town of Coldspring – Town Clerk Operations (Cattaraugus County)
The town clerk did not issue press-numbered duplicate receipts for cash collected, accurately record all transactions, remit moneys due to the town supervisor and other entities in a timely manner, or deposit cash receipts intact or in a timely manner. Auditors found a shortage in the clerk’s account totaling $1,400 which is primarily due to money owed to the town supervisor, unrecorded checks, and unpaid liabilities.

City of Glens Falls – Financial Condition (Warren County)
The city council adopts realistic budgets, and along with the mayor and city controller, continually monitors the budgets throughout the year and will initiate and approve any necessary budget amendments.  Although the city is not considered to be in fiscal stress at this time, low levels of unexpended surplus funds in the general fund and declining balances in the water and sewer funds are concerning. City officials indicate they are carefully monitoring the funds.

Grahamsville Fire District – Internal Controls Over Financial Operations (Sullivan County)
The district board has not properly developed annual budgets. From 2009 through 2011, actual expenditures exceeded budget estimates each year by an average of 22 percent. In addition, the district has not formally established reserve funds and has not adopted formal policies on how they are to be funded and how they will be used.

Town of Kendall – Justice Court (Orleans County)
Auditors found significant control deficiencies with the justice court’s operations. Justices did not ensure that all court fines, fees, and surcharges were properly accounted for. Although monthly reports were submitted to the justice court fund in a timely manner, they were not always complete and accurate. Further, the justices did not ensure that cases were properly reported to the state Department of Motor Vehicles.

Mastic-Moriches-Shirley Community Library – Claims Processing (Suffolk County)
Library officials have established adequate controls over the claims processing function that allow claims to be audited in a timely manner and ensure the claims are properly supported. The account clerk and/or director reviews invoices for department head approvals before printing checks and a schedule of claims to present to the board, which then audits the claims before signing the checks. Finally, the claims auditor performs a post-audit of the claims paid.

Roosevelt Fire District – Financial Operations and Information Technology (Nassau County)
The district board needs to improve its oversight of financial operations. Auditors found the treasurer submits monthly financial reports to the board that contain incomplete information, and the district’s financial records have not been audited by an independent public accountant since the 2010 fiscal year. In addition, internal controls over information technology are not appropriately designed or operating effectively.

Schuyler County Sheriff’s Department – Payroll, Civil Fees and Bail (2013M-120)
The county entered into an improper contract for security services with Watkins Glen International (WGI), a private entity. Over the last two years, the county has paid 351 individuals $233,840 for providing law enforcement services to WGI in connection with events at the Watkins Glen racetrack.  In these cases, the county improperly pays these individuals as if they were independent contractors by check based on completed vouchers and issues them an IRS 1099 form at the end of the year.  As a result, no taxes are reported or withheld, and no information is reported to the state retirement systems.

Steuben County Soil and Water Conservation District – Internal Controls Over Cash Receipts and Disbursements (2013M-97)
The conservation district board has not adopted policies and procedures for cash receipts and disbursements to ensure that cash is properly safeguarded. Auditors found 116 receipts totaling $47,443 were not deposited on a timely basis, 14 disbursements totaling $23,943 never appeared on a warrant for board approval, and 151 disbursements totaling $532,322 cleared the bank prior to the board’s audit and approval for payment.

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