Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation

Determining if two positions are similar within the meaning of Education Law §3013 in a layoff situation

Appeal of Arnold Goldberg, Decisions of the Commissioner of Education, Decision No. 16,635

Arnold Goldberg held a tenured appointment as Director of Personnel in the tenure area of  "Director of Personnel." The School Board subsequently created a new position, Assistant Superintendent for Human Resources and Professional Development, and appointed Dr. Marlene Zakierski to fill this new position  effective August 1, 2005. On August 16, 2005, the Director of Personnel position was abolished and Mr. Goldberg was "excessed" effective August 26, 2005, and his name was placed on a “preferred eligible list “

Mr. Goldberg challenged the failure of the School District to appoint him to the newly created Assistant Superintendent position.** The then Commissioner of Education issued a decision dismissing the appeal, holding that Mr. Goldberg was not entitled to an appointment to the Assistant Superintendent position.  Subsequently Supreme Court vacated the Commissioner’s decision and remanded the matter to the School District for a hearing pursuant to Education Law §3013 on the sole issue of whether or not the two positions were similar.

Following five days of hearing, the School Board issued a decision finding that “the newly created position of Assistant Superintendent for Human Resources and Professional Development was not similar to [Mr. Goldberg’s] position of Director of Personnel,” whereupon Mr. Goldberg initiated a second CPLR Article 78 proceeding against the School District seeking to set aside the School District’s decision.  Supreme Court, however, ruled that the Commissioner of Education has primary jurisdiction over this matter and Mr. Goldberg initiated the instant appeal with the Commissioner of Education.

Mr. Goldberg asserted that more than 50 percent of the duties he performed as Director of Personnel were being performed by the incumbent of the newly created position of Assistant Superintendent* and thus, he argued, he should have been appointed to the position pursuant to Education Law §3013 and asked that the Commissioner set aside the School District’s decision that the two position were not similar “as arbitrary and capricious” and direct the School District to appoint him to the Assistant Superintendent position with back pay, seniority and all other benefits. 

The Commissioner ruled that Mr. Goldberg’s appeal concerning “the district’s failure to recall him from the preferred eligibility list” had to be dismissed for failure to join a necessary party. The Commissioner noted that although Mr. Goldberg named “Ronald O. Grotsky” as a respondent in the caption of his appeal, the record indicates that Marlene Zakierski had been appointed by School Board to the Assistant Superintendent position. As Dr.Zakierski’s rights could be adversely affected were the decision in this appeal in Mr. Goldberg’s favor because “she was not named or served with a notice of petition or petition,” he “must dismiss the appeal for failure to join necessary parties.”

Further, the Commissioner said that Mr. Goldberg failed to meet his burden of demonstrating that he was entitled to the Assistant Superintendent position.

In order for an individual to be entitled to appointment to a vacant position from a preferred list, explained the Commissioner, the position must be similar to that of his or her former position. The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by individual in his or her former position and the two positions must be in the same tenure area.

Based on the record before him, the Commissioner said that he found that the two positions were in different tenure areas, noting that the School Board had approved the probationary appointment of an individual to an Assistant Superintendent position in the tenure area of “Assistant Superintendent of Human Resources and Professional Development" while Mr. Goldberg had been granted tenure in the administrative tenure area of “Director of Personnel.”

The Commissioner also noted that “even if the two positions were in the same tenure area, the appeal must be dismissed because a review of the job descriptions for both positions and the record before him “reveals that, within the meaning of Education Law §2510(3), [Mr. Goldberg’s] position as Director of Personnel was not similar to the position of Assistant Superintendent for Human Resources and Professional Development.”

The Commissioner then dismissed Mr. Goldberg's appeal.

* Mr. Goldberg also asserted that the hearing provided by the School Board did not meet the due process requirements of the Fifth and Fourteenth Amendments of the United States Constitution and, in addition, he alleged several violations of the Open Meetings Law and the Freedom of Information Law. The Commissioner rejected Mr. Goldberg’s due process claims and with respect to his Open Meetings Law and Freedom of Information claims noted that New York State Supreme Court has exclusive jurisdiction with respect to adjudicating such claims and any “alleged violations thereof may not be adjudicated in an appeal to the Commissioner.”

** The test applied is whether 50% or more of the duties being performed by the incumbent of the newly created position were previously being performed by the incumbent of the position that had been abolished not whether 50% or more of the duties of the abolished position were being performed by the incumbent of the new position. For example, the incumbent of the new position could have assumed all of the duties of the abolished position yet those duties could be less than 50% of all of the duties assigned to the incumbent of the new position.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d166351

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Limiting access to sensitive electronic databases

Limiting access to sensitive electronic databases 

Source: Office of New York State’s Comptroller Thomas P. DiNapoli

Concerned with access to sensitive materials contained in an electronic database, State Comptroller Thomas P. DiNapoli's auditors found that employees in six upstate New York school districts had inappropriate computer access to sensitive student data and were able to change student grades and attendance records without proper authorization.*

The Comptroller said that “Student academic and personal information must be protected by school districts. Each of the districts identified in this audit should take the simple and immediate steps necessary to improve their controls over personal, private and sensitive information. In the meantime, I have directed my audit division to expand the scope of this audit and begin examining school districts from every region of the state.”

The school districts reviewed were: Altmar-Parish-Williamstown Central School District, Indian River Central School District, Lowville Academy and Central School District, Madison Central School District, Poland Central School District and Westhill Central School District.

DiNapoli’s audit revealed that several school computer system users in each district had access to functions that were beyond their job duties or outside the scope of their responsibility. Auditors found that users in multiple school districts, including outside vendors, were able to make grade changes without proper documentation or authorization.

Auditors also found:

Four of the six districts had features within their computer system that allowed users to assume the identity or the account of other users as well as inherit increased rights or permissions;

Two districts continued to use accounts of former employees in order to make changes to more than 200 attendance records;

One district allowed generic users to view student individualized education programs; and

Only one district, Altmar-Parish-Williamstown, reviewed non-instructional staff user rights to ensure they were appropriate.

DiNapoli recommended each school district take immediate steps* to:

> Establish written policies and procedures for student information system administration including a formal authorization process to add, deactivate or change user accounts and rights and procedures for monitoring user access;

> Ensure that individuals are assigned only those access rights needed to perform their job duties;

> Evaluate user rights and permissions currently assigned to each student information system user, including outside employees and vendors, and ensure that rights are updated as needed to properly restrict access;

> Restrict the ability to make grade changes and ensure that documentation is retained to show who authorized the grade change and the reason for the change;

> Remove all unknown/generic or shared student information system accounts and deactivate the accounts of any users who are no longer employed; and

> Periodically review available audit logs for unusual or inappropriate activity.

The letters sent by the Comptroller’s office to each school district have been posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/swr/2014/accesscontrols/global.htm 

School district officials generally agreed with the audit, but some provided clarification on their policies and identified improvements they have already made. Their responses are included in the final report posted on the Internet at:

http://www.osc.state.ny.us/localgov/audits/swr/2014/accesscontrols/global.pdf

* See an audit released by New York State Comptroller Thomas P. DiNapoli.on August 19, 2014.

** These guidelines could be relevant and could be considered by other government departments and agencies in order to review their existing procedures and establishing a formal authorization process to add, deactivate or change user accounts and procedures for monitoring user access to agency computer systems electronically to the extent that they are not already in place.

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Tampering with a public record

Tampering with a public record

OATH Index No. 1297/14

The employer alleged that its project manager, without authorization, altered two work orders signed by his supervisor. He then e-mailed the orders to the contractor despite the fact that they had not be signed by the supervisor.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the employee had  knowingly made false entries on a written statement of a public servant, and that he had tampered with a public record.

Judge Zorgniotti also found that the employee had emailed the altered documents to the contractor without copying his supervisor as directed.

The penalty the ALJ recommended, termination of the individual, was adopted by the appointing authority.
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Threatening to use administrative authority

Threatening to use administrative authority

In an Associated Press news item dated August 16, 2014 by Paul J. Weber and Will Weissert concerning the indictment of Texas Governor Rick Perry by a grand jury for allegedly “abusing the powers of his office by carrying out a threat to veto funding for state prosecutors investigating public corruption” the article states that “No one disputes that Perry is allowed to veto measures approved by the Legislature, including part or all of the state budget. But [a] government watchdog group filed an ethics complaint accusing the governor of coercion because he threatened to use his veto before actually doing so in an attempt to pressure [Travis County, Texas, District Attorney Rosemary] Lehmberg to quit.”

As to the allegation of coercion by a public officer, is it coercion for an appointing authority to threaten an employee with disciplinary action if he or she does not immediately submit his or her resignation from his or her position?

In Rychlick v Coughlin, 63 NY2d 643, the employee was told that if he did not submit his resignation immediately he would be served with disciplinary charges. A few days later Rychlick asked to withdraw the resignation* claiming that he had been "forced" to submit it. When his request was denied, Rychlick sued, claiming his resignation had been obtained under duress and thus was void.

The Court of Appeals disagreed with Rychlick’s claim of coercion, pointing out that threatening to do what the appointing authority had a right to do – in this instance filing disciplinary charges -- did not constitute coercion so as to make Rychlick’s resignation involuntary.

In contrast to having been threatened with disciplinary action if he or she did not submit the resignation demanded by the appointing authority, from time to time an employee will allege that resignation submitted was not voluntary but, in fact, constituted a “constructive dismissal.” In order to maintain an action for constructive dismissal, however, the plaintiff must show that his or her employer deliberately made working conditions so intolerable that he or she was forced into submitting the resignation.

* The rules of the New York State Civil Service Commission, which apply to employees of the State as the employer, provide that "every resignation shall be in writing" [4 NYCRR 5.3(a)] while 4 NYCRR 5.3(c) provides that a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority. Many local civil service commissions and personnel officers have adopted similar rules concerning resignations of employees subject to their respective jurisdictions.

Contingent permanent appointments

Contingent permanent appointments

Cruz v New York State Unified Ct. Sys., 2014 NY Slip Op 05640, Appellate Division, Second Department

Two employees of the New York State Unified Court System and New York State Office of Court Administration, John Ferguson and Jocelyn Cruz, were removed from their positions of employment that they held pursuant to a “contingent permanent appointment."

Ferguson had received a notice that he was going to be displaced from his position and replaced by someone on a preferred list and reinstated to a lower-titled permanent position. Cruz had received a similar notice. Ferguson and Cruz brought an Article 78 action challenging their displacement from their contingent permanent positions.

The Appellate Division, noting that “The Chief Judge has plenary Constitutional authority over the administration of the UCS” said that Chief Judge had the authority to establish statewide standards and administrative policies concerning nonjudicial personnel, including job classifications and removal, provided that the standards and policies "shall be consistent with the civil service law."

As to contingent permanent appointments, the court explained that:

“Under the rules promulgated by the Chief Judge, positions left temporarily vacant by the leave of absence of the permanent incumbent may be filled on a contingent permanent basis, (see 22 NYCRR 25.24[a],[d]). When the permanent incumbent's encumbrance on the position, i.e., his or her right to return to that position, expires due to the attainment by the permanent incumbent of nonprobationary, permanent status in a higher title (see 22 NYCRR 25.22[d], 25.24[b][1]), the position then held by the contingent permanent appointee becomes permanently vacant and subject to being permanently filled pursuant to the Rules of the Chief Judge (see 22 NYCRR 25.24[b][8], 25.31[a][1]). The Rules of the Chief Judge require that such a permanent vacancy be filled first by reference to an applicable preferred list (see 22 NYCRR 25.24[c], 25.31[a][1]). The Chief Administrator of the Courts is required to establish statewide preferred lists of the names of those persons who have been demoted or suspended, including those who were demoted or suspended by virtue of a workforce reduction in June 2011 (see 22 NYCRR 25.31[a][1]).”*

If, said the court, ”no preferred list exists for a particular position, then any permanent vacancy in that position is to be filled in accordance with 22 NYCRR 25.24(b)(8), which provides for the selection 'of one of such employees of the promotion unit having such contingent permanent status in such position or a similar position,' provided that, if the eligible list from which the employee acquired the contingent permanent position is still in existence, the employee is then eligible for permanent appointment or promotion from such list.”

Accordingly, the Appellate Division ruled that "the contingent permanent appointments held by Ferguson and Cruz did not mature into permanent appointments by virtue of their completion of probation or the positions becoming unencumbered. Moreover, the use of statewide preferred lists to fill permanently vacant positions is not arbitrary and capricious, even where such use results in the displacement of contingent permanent appointees who were not themselves subject to the workforce reduction.”

The court found that UCS's actions with regard to Ferguson were in compliance with the Rules of the Chief Judge, as the expiration of the permanent incumbent's encumbrance created a permanent vacancy subject to being lawfully filled.

As to Cruz, the Appellate Division noted that UCS conceded that the termination notice had been sent to her in error "since the relevant employment position had not yet become unencumbered, and since application of the Rules of the Chief Judge might indeed result in her permanent appointment." Thus, said the court, Supreme Court properly granted that branch of the petition which was to annul the determination displacing Cruz from her position of employment but Supreme Court erred in permanently enjoining her displacement from the position as Cruz holds her position on a contingent permanent basis, explaining that the record reveals that, during the pendency of this proceeding, the position held by Cruz became unencumbered, and no preferred list exists for the position, “the position must be filled permanently from the existing regular eligible list, in accordance with 22 NYCRR 25.24(b)(8).”

The Rules of Civil Service Commission addressing contingent permanent appointments for employees in the Classified Service of the State as the employer differ from the Rules of the Chief Judge of the State of New York addressing contingent permanent appointments applicable to employees of the Office of Court Administration.

Typically a temporary appointment**is made to a position temporarily vacant or to a position that is not expected to be continued for any extended period of time as generally set out in subdivisions 1, 2 and 3 of  §64 of the Civil Service Law and except as authorized by subdivision 4 of. §64, a temporary appointment cannot mature into “tenure” status. 

Under the Commission’s Rules, however, in the event the appointing authority affirmatively designates the appointment of an individual to a temporary vacancy as a “contingent permanent appointment,” this  “special form of temporary appointment” provides the appointee with many of the benefits that flow from being permanently appointed to the position. 

To effect a permanent contingent appointment, (1) the appointing authority must specifically act to provide for such a “contingent permanent” appointment*** and (2) the appointee must otherwise satisfy the mandates of §61 of the Civil Service Law with respect to permanent appointment to a position in the Classified Service of the State as the employer. Further, a tenured employee may not be reassigned to an encumbered position "unless the employee agrees, in writing, to accept a contingent permanent appointment to such position.” A CPE attains tenure in the title upon his or her being continued in the position beyond maximum period of probation for the title.

As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, a temporary appointee, even if otherwise eligible for appointment as a contingent permanent employee [CPE] pursuant to Section 64.4, must be appointed specifically as a CPE by the appointing authority, “which status is granted solely at the discretion of the appointing authority and requires that the appointee otherwise satisfies the mandates of §61 of the Civil Service Law."

The New York State Department of Civil Service Career Mobility Office describes a contingent permanent appointment  as follows: “A permanent appointment or promotion to a position left temporarily vacant by the leave of absence of the permanent incumbent of the position; such appointees have the same rights as permanent appointees; a contingent permanent employee may be displaced by the return of the permanent incumbent. (The term contingent permanent is not used in the Civil Service Law or Rules; rather, rule 4.11 refers to "permanent appointments to encumbered positions.") .”

In the event a CPE is to be removed from his or her position upon the permanent incumbent of the position being filled by a CPE upon his or her reinstatement to the position, the CPE shall [1] displace any temporary or provisional employee serving in the same title and work location under the jurisdiction of the same appointing authority; or [2] displace the CPE with the most recent contingent permanent appointment date serving in the same title and work location under the jurisdiction of the same appointing authority or [3] the CPE is to be reinstated to the position from which he or she is on leave, if any, and his or her name is placed on the appropriate reemployment list or roster for the title he or she formerly held on a contingent permanent basis, as the case may be.:

A displaced CPE may request the Civil Service Department to restore his or her name to the eligible list or reemployment roster, if any, from which the contingent permanent appointment was made, if such list or roster is still in existence at the time the request if made.

If a position with same title and work location, and under the jurisdiction of the same appointing authority, becomes vacant, the CPE having the earliest date of contingent permanent appointment willing to accept such appointment is to be permanently appointed to the vacancy should the appointing authority elect to fill the vacancy.

Essentially the Commission’s Rules provide as follows with respect to the status of a CPE having tenure in the title:

1. The CPE may request that his or her name be restored to the eligible list or reemployment roster, if any, from which his or her contingent permanent appointment was made, if such list or roster is still in existence.

2. Should a position with same title and work location, and under the jurisdiction of the same appointing authority, becomes vacant, the CPE having the earliest date of contingent permanent appointment is to be permanently appointed to the vacancy in the event the appointing authority elects to fill the vacancy.

3. In the event the CPE is retained beyond the maximum period of probation set for the position, he or she attains tenure in the title and is subject to removal from the position as required by, and in accordance with, the Rules upon the reinstatement of the permanent incumbent to the position; the abolishment of the position in accordance with relevant provisions of the Civil Service Law; or terminated for cause in accordance with the controlling disciplinary procedure.

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* Section 25.24 Contingent permanent appointments of the Rules of the Chief Judge,. is set out on the Internet at http://www.nycourts.gov/rules/chiefjudge/25.shtml#24   

** A temporary appointment is made to an encumbered position and is distinguished from a “provisional appointment” made pursuant to §65 of the Civil Service Law to a wholly vacant position.

*** As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, a temporary appointee, even if otherwise eligible for appointment as a contingent permanent employee [CPE] pursuant to Section 64.4, must be appointed specifically as a CPE by the appointing authority, “which status is granted solely at the discretion of the appointing authority and requires that the appointee otherwise satisfies the mandates of §61 of the Civil Service Law. 

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