An individual’s domicile and residence distinguished

An individual’s domicile and residence distinguished
Weiss v Teachout, 2014 NY Slip Op 05888, Appellate Division, Second Department*

A person may have only one domicile at a time but he or she may have many residences simultaneously.

From time to time, however, the term “residence” is used as a substitute for the term “domicile.” This was demonstrated in Weiss v Teachout.

Seeking to invalidate the petition designating Zephyr R. Teachout as a candidate for the office of governor, Harris Weiss alleged that Teachout did not meet the constitutional residency requirements for the office of governor.

Article IV, §2 of the State Constitution, in pertinent part, requires that an individual seeking election to the office of governor “shall have been five years next preceding the election a resident of this state” while Election Law §1-104.22 states that the term residence “shall be deemed to mean that place where a person maintains a fixed, permanent and principal home and to which he [or she], wherever temporarily located, always intends to return."

The Appellate Division explained that as used in the Election Law, and presumably in the State Constitution, the term ‘residence' is being used to denote an individual's legal status that is more accurately described as his or her “domicile."

Crucial to the determination as to whether an individual satisfies the constitutional “residency” requirement, said the court, is that the individual manifests an intent [to reside there], coupled with physical presence without any aura of sham [see People v. O'Hara, 96 NY2d 378].**

The Appellate Division sustained Supreme Court's determination that the Weiss failed demonstrate that Teachout did not meet the constitutional residency requirements for the office of governor is warranted by the facts.

The Appellate Division held that although both the Constitution and the Election Law use the “residence,” it was five years as a “domiciliary” of New York State that was required to satisfy such “residence” requirements and the fact that Teachout had has resided in several different residences within the City of New York during the relevant time period, while maintaining close connections to her childhood domicile of Vermont, constituted “nothing more than an ambiguity in the residency calculus.”

* See, also, Jones v Blake, 2014 NY Slip Op 05919, Appellate Division, First Department, an appeal arising “out of a special proceeding in which petitioner sought to establish that respondent did not satisfy the residency requirements for the public office of Member of the Assembly.”

** In Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), [Not selected for publication in the Official Reports], Supreme Court Judge Dennis M. Kehoe held the where the record revealed that the individual elected to public office [1] rented the upstairs apartment from his wife four days before the election, for an annual rental of $1.00, for a period which extends through December 31, 2012, the date his term as Mayor expires; [2] that the furnishings of the apartment consist of one bed with a crate used as a night table, had no appliances such as a refrigerator, stove, or microwave - and no television or computer; [3] that he did not move his personal belongings to the apartment; and [4] that he regularly ate dinner with his wife and children at the residence in the Town of Sodus; and spent the majority of his nights there, he must conclude that the Allen’s attempt to establish a residence in the Village of Sodus was contrived for the purpose of making him eligible to run for the office of Mayor.” Judge Kehoe noted that he was aware of the fact that “his decision will result in an immediate vacancy in the office of the Mayor of Sodus Village, but this outcome is mandated by the Public Officers Law §30(1)(d), unless otherwise stayed by a higher court.”

The Weiss decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_05888.htm

The Village of Sodus decision is posted on the Internet at:

http://www.nycourts.gov/reporter/pdfs/2011/2011_31035.pdf

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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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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

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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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