A court’s review of an administrative hearing conducted pursuant to law is limited

A court’s review of an administrative hearing conducted pursuant to law is limited
2014 NY Slip Op 00663, Appellate Division, Second Department

The Civil Service Law §75 disciplinary hearing officer found the employee against whom disciplinary charges and specifications had been filed [Petitioner] guilty of certain disciplinary charges and recommended that the employee be terminated from the position. The Board of the Public Library adopted the hearing officer’s findings and recommendation as to the penalty to be imposed and dismissed Petitioner.

The Appellate Division confirmed the Board’s action on the merits and dismissed Petitioner’s Article 78 compliant seeking to overturn the Board’s decision, with costs. 

The court said “Judicial review of an administrative determination made after a hearing at which evidence is taken pursuant to direction of law is limited to a consideration of whether that determination was supported by substantial evidence upon the whole record,” citing 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176 and other decisions.

Quoting from Matter of Berenhaus v Ward, 70 NY2d 436, the Appellate Division explained that in the event there is conflicting evidence or different inferences may be drawn from the evidence, "the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists."

In this instance any credibility issue was resolved by the hearing officer and the Appellate Division found no basis upon which to disturb the hearing officer's determination as it was supported by substantial evidence.

Rejecting Petitioner's argument to the contrary, the court ruled that under the circumstances presented, the penalty of termination of Petitioner's employment was not so disproportionate to the offense committed as to be shocking to one's sense of fairness, citing the Pell Doctrine [Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00663.htm

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Mayors to speak at Albany Law School

Mayors to speak at Albany Law School

Hosted by Albany Law School’s Government Law Center, Albany Mayor Kathy Sheehan, Rochester Mayor Lovely Warren and Saratoga Springs Mayor Joanne Yepsen will discuss their journeys to elected leadership, their personal insights on the equitable participation of women in politics and government, and the unique responsibility of running a city government.

The program, which will be held on Wednesday, February 19, 2014, 4:00 p.m.-5:30 p.m. at the Albany Law School, 80 New Scotland Avenue, Albany in the Dean Alexander Moot Courtroom, is free and open to the public.

To attend the reception following the discussion, please call Ms. Amy Gunnells,518-445-2329, or e-mail her at gunn@albanylaw.edu. 
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Unemployment insurance benefits claimant’s showing of “good cause” for failing to comply with registration requirements requires granting of her application for benefits

Unemployment insurance benefits claimant’s showing of “good cause” for failing to comply with registration requirements requires granting of her application for benefits

2014 NY Slip Op 00270, Appellate Division, Third Department

The Unemployment Insurance Appeal Board ruled that a teacher [Claimant] was ineligible to receive unemployment insurance benefits because she failed to comply with registration requirements.

Claimant served as a part-time public school teacher. Believing that she would be rehired during the following school year in the same capacity or as a substitute teacher, she did not file a claim for unemployment insurance benefits during the intervening summer.

When Claimant was not rehired and was unable to work as a substitute, she filed a claim for unemployment insurance benefits. Her claim was ultimately considered by the Unemployment Insurance Appeals Board and denied on the ground that she failed to comply with the applicable registration requirements.

Acknowledging that “it is well settled that registering and certifying for benefits in accordance with the requirements of the Labor Law and applicable regulations is a prerequisite to eligibility, the Appellate Division noted that  … “the failure to comply with such requirements may be excused for good cause shown,” which is a factual issue for the Board to resolve.

Here, however, Claimant testified that she failed to register because her employer gave her a reasonable assurance that her employment would be continued during the 2012-1013 school year and, therefore, she did not think that she was eligible for benefits. Indeed, Claimant indicated that she previously had applied for benefits under similar circumstances and her claim was denied upon the basis that she had been given a reasonable assurance of continued employment.*

Claimant also testified that she did not file the claim at issue until it became clear that she would not be rehired as a regular part-time teacher and that she could not be retained as a substitute due to licensing problems. Notably, said the court, no evidence was introduced to contradict Claimant’s testimony.

The Appellate Division, noting that the unemployment insurance handbook instructed Claimant otherwise, said that such instruction was understandably confusing in light of Claimant's past experience.

Accordingly, the court ruled that “under the particular circumstances presented, we find that the Board's decision is not supported by substantial evidence given that [Claimant] demonstrated good cause for her failure to comply with the registration requirements.”

* A temporary teacher’s eligibility for unemployment insurance benefits upon termination of his or her temporary employment depends on whether or not he or she has been given “a reasonable assurance of continued employment” within the meaning of Section 590.10 of the Labor Law.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00270.htm
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The four-month statute of limitations set out in Article 78 of the Civil Practice Law and Rules applies when challenging a pubic retirement system’s administrative decision

The four-month statute of limitations set out in Article 78 of the Civil Practice Law and Rules applies when challenging a pubic retirement system’s administrative decision
2013 NY Slip Op 08026, Appellate Division, First Department

The contingent beneficiary [Petitioner] of a member of the New York City Teachers’ Retirement System was advised that she would not receive benefits under the deceased member's qualified pension plan (QPP) because he died prior to his date of retirement and thus the deceased member’s designated in-service beneficiary was entitled to the benefits.

Petitioner then filed an Article 78 petition challenging the Retirement System’s decision, seeking a judgment that she was entitled to either a determination of her rights as contingent beneficiary under the decedent’s qualified pension plan (QPP) or an order   directing the System to pay her benefits as a contingent beneficiary of the deceased member’s QPP.

Supreme Court dismissed her petition as untimely, finding that Petitioner failed to file a proceeding to challenge that determination within the requisite four-month period. The Appellate Division affirmed the lower court’s ruling.

The Appellate Division noted that “The parties agree that the four month statute of limitations controls this action, which challenges an agency determination” and that Petitioner failed to file her action within that four-month period.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_08026.htm
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A public official employed in a major nontenured policymaking or advisory position is ineligible for unemployment insurance benefits based on such service

A public official employed in a major nontenured policymaking or advisory position is ineligible for unemployment insurance benefits based on such service
2014 NY Slip Op 00721, Appellate Division, Third Department

§527(1) of the Labor Law sets out the qualifications that an Unemployment Insurace claimant must satisfy in order to file a valid original claim entitling him or her to receive unemployment insurance benefits. §527(1)(d) requires that the claimant must be "paid remuneration by employers liable for contributions . . . for employment during at least two calendar quarters of the base period.

In this appeal the issue was whether an individual [Claimant] appointed to a position of Deputy Commissioner by the Governor who applied for unemployment insurance benefits after her term of office ended was “paid remuneration by employers liable for contributions.”

Initially the Department of Labor denied the claim, finding that Claimant, as a Deputy Commissioner, [1] held a major nontenured policymaking or advisory position while employed by the State, and [2] such service could not be used as base period employment for purposes of establishing a valid original claim for unemployment insurance benefits.

Although this determination was overruled by an Administrative Law Judge, ultimately the Unemployment Insurance Appeal Board sustained the initial determination and ruled that Claimant was not eligible to receive unemployment insurance benefits.

The Appellate Division affirmed the Appeal Board’s decision explaining that [1] Labor Law §527(1) sets out the qualifications that a claimant must meet in order to file a valid original claim entitling him or her to receive unemployment insurance benefits and [2] Labor Law §527[1][d] requires that the claimant must be "paid remuneration by employers liable for contributions . . . for employment during at least two calendar quarters of the base period."

The decision then points out that Labor Law §565(2)(e) provides that services rendered for a governmental entity by a person “in a major nontenured policymaking or advisory position" is not employment for the purposes of establishing eligibility for Unemployment Insurance benefits.

The issue to be resolved, said the Appellate Division, is whether the Labor Law §565(2)(e) exclusion applies with respect to Claimant employment during the applicable base period.

Finding that “… the performance standards applicable to [Claimant’s] position supported the Appeals Board’s determination that Claimant held a "major nontenured policymaking or advisory position," the Appellate Division ruled that there was a rational basis for the Board's finding that Claimant’s service during the period in question “could not be used as base period employment for purposes of establishing a valid original claim” and dismissed the appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_00721.htm
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