October 14, 2014

Appealing administrative decisions

Appealing administrative decisions
Modlin v Kelly, 2014 NY Slip Op 06866, Appellate Division, First Department

Typically a disappointed individual challenges an administrative decision by bringing an Article 78 action.  

In reviewing an administrative determination that was made without a hearing the issue is whether the action taken had a "rational basis" and was not "arbitrary and capricious" An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts." If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable. Ward v City of Long Beach, [20 NY3d 1042. .

In contrast, if the matter was determined after an administrative hearing, should the petition before Supreme Court raise a question of whether an administrative determination was supported by substantial evidence the proceeding is to be transferred from the Supreme Court to the Appellate Division to address that issue [See §7804[g] of the Civil Practice Law and Rules.]

Where the challenged determination was judicial or quasi-judicial in nature and made on the basis of a hearing at which evidence was taken pursuant to direction by law an aggrieved party is entitled to have a court test the legal sufficiency of the evidence relied upon by the agency by simply requesting that it do so.

Further, there is essentially nothing to be “proved” in the course of the appeal as all evidence has already been adduced at the administrative hearing and findings made based on such evidence. Accordingly, the challenging party’s task is not to prove transactions or occurrences, but rather to present legal argument on the substantial evidence issue.

What constitutes substantial evidence? In Robert Martin v Board of Trustees, 34 AD3d 580, the Appellate Division commented that "Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." Further, said the court, “it is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject," citing Sahni v New York City Bd. of Educ., 240 AD2d 751.

In Modlin the court pointed out that Supreme Court "improperly transferred” the matter to the Appellate Division because the determination challenged “was not made pursuant to an administrative hearing.” The court then addressed the merits of the appeal “in the interest of judicial economy,” citing DeMonico v Kelly, 49 AD3d 265.

The decision is posted on the Internet at:

October 10, 2014

Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appeal

Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appeal
Decisions of the Commissioner of Education, Decision No.16,671

A certified public school administrator [Probationer] was appointed by the School District as a probationary Special Education School Improvement Specialist.  Probationer’s three-year probationary appointment was to expire on November 22, 2013. By letter dated November 19, 2013, Probationer was notified that the School Superintendent was recommending the board discontinue her probationary appointment as of January 19, 2014. At the same time Probationer was offered a one-year extension of her probationary term, which she subsequently declined.

Ultimately Probationer was advised by letter dated December 17, 2013, that her employment was terminated effective January 19, 2014. 

In her appeal to the Commissioner challenging her termination Probationer alleged that she had fulfilled her job responsibilities, had positive evaluations and no disciplinary actions had been taken against her.* She also claimed that she had been recommended for tenure by two supervisors. In view if this, Probationer asked that the Commissioner issue an order directing her reinstatement to her former position with tenure and “back pay or monetary rewards.”

Contending that Probationer had not been denied any statutory or constitutional rights and that she fails to demonstrate a clear right to the relief requested, the School District argued that Probationer’s appeal was untimely and must be dismissed.

Addressing the procedural issue of timeliness, the Commissioner noted that an appeal to the Commissioner must be commenced “within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”

Here the record did not indicate when Probationer actually received the letter advising her that her employment was to be terminated. In such case, explained the Commissioner, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays. In Probationer case, said the Commissioner, even allowing the usual five days for mailing, her appeal was not commenced within 30 days of the December 17, 2013 letter notifying her of her termination.

Probationer had attempted to explain her delay in commencing the appeal in a letter to the State Education Department’s Office of Counsel indicating that she had written to the State Education Department in May 2014 and received a response in June 2014 advising her that she could appeal the school district’s decision to the Commissioner without an attorney.  Petitioner said that she was previously unaware that she could appeal “without an attorney.” 

However, said the Commissioner, “Even if I accept [Probationer’s] letter … she offers no satisfactory explanation of why a delay of more than six months in commencing the appeal should be excused.”  Further, observed the Commissioner, “It is well-settled that, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal.”

The Commissioner said that he found “no unusual circumstances in this case” and dismissed Probationer’s appeal on the ground that it was untimely.

* The Commissioner's decision states that Probationer “does not allege that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription,” citing Appeal of Rubinstein, 45 Ed Dept Rep 299, Decision No. 15,329. As the Court of Appeals said in Duncan v Kelly, 9 N.Y.3d 102, a probationary employee may be discharged for "almost any reason, or for no reason at all" as long as the decision is not made "in bad faith or for an improper or impermissible reason."

The decision is posted on the Internet at:

October 09, 2014

Student records sought in the course of a disciplinary action must be relevant to the defense of the accused and a factual basis establishing their relevance must be demonstrated

Student records sought in the course of a disciplinary action must be relevant to the defense of the accused and a factual basis establishing their relevance must be demonstrated
Watertown City Sch. Dist. v Anonymous, A Tenured Teacher, 2014 NY Slip Op 06444, Appellate Division, Fourth Department

The Watertown City School District [WCSD] initiated a proceeding in Supreme Court seeking an order quashing a subpoena duces tecum served on it by Anonymous, a tenured teacher, in the course of an administrative disciplinary action initiated against Anonymous pursuant to Education Law §3020-a. Anonymous cross-moved to compel WCSD to comply with the subpoena duces tecum.

Supreme Court granted the cross-motion filed by Anonymous and WCSD appealed.

The §3020-a Hearing Officer had issued a subpoena duces tecum in response to Anonymous’ request for production of the records of students testifying in the disciplinary action notwithstanding relevant provision of the Family Educational Rights and Privacy Act of 1974 (FERPA).

Although §3020-a hearing officers have the authority to order the production of student records that are material and relevant to accused employee's defense,* the Appellate Division noted that it is well established that, "[g]enerally, a subpoena duces tecum may not be used for the purpose of discovery or to ascertain the existence of evidence" the petition and granting the cross motion.”

Citing Matter of N. v Novello, 13 AD3d 631, the Appellate Division explained that where, as here, "the relevance of the subpoena is challenged, it is incumbent upon the issuer to come forward with a factual basis establishing the relevance of the documents sought to the investigation" to show "that the material sought bears a reasonable relation to the matter under investigation.”

In this instance the Appellate Division found that the allegations of misconduct filed against Anonymous involved activities outside of the classroom and Anonymous stated only generally that the students' records were "highly relevant" in asserting a defense and that the records are "necessary and relevant to the preparation of a defense to the charges on its face."

The court found that Anonymous failed to indicate how the records were reasonably related to Anonymous’ defense nor did Anonymous present a factual basis establishing their relevance. Accordingly, the Appellate Division concluded that Supreme Court had “abused its discretion in refusing to quash the subpoena duces tecum” served on WCSD.

It unanimously reversed, on the law, Supreme Court’s ruling and granted WCSD’s petition to quash.the subpoena duces tecum issued by the Hearing Officer.

* See Education Law §3020-a [3] [c] [iii] [A], [C].

The decision is posted on the Internet

October 08, 2014

A full time employee’s refusal to accept a part time position does not affect the individual’s right to have his or her name placed on an appropriate preferred list

A full time employee’s refusal to accept a part time position does not affect the  individual’s right to have his or her name placed on an appropriate preferred list
Gervais v Board of Educ. of E. Aurora Union Free Sch. Dist., 2014 NY Slip Op 06414, Appellate Division, Fourth Department

In this CPLR Article 78 proceeding Supreme Court determined that the denial of certain teachers' rights to have their names placed on the preferred eligibility list was arbitrary and capricious. The court directed that the school district reinstate their names on the appropriate preferred eligibility list. The Appellate Division unanimously affirmed the lower court’s ruling.

The school district had contended that the teachers were not entitled to be placed on the preferred eligibility list because they had refused to accept the part-time teaching positions offered to them.*

The Appellate Division pointed out that Education Law §2510 (3) (a) provides that, if a teaching position "is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled."

Further, said the court, an individual "on such preferred list shall be reinstated or appointed to such vacancies . . . in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position."

The court explained that by reducing the teachers’ full-time teaching positions to part-time positions of .4 full time equivalent [FTE] and .2 FTE respectively, the district had "effectively abolished the full-time position[s] and created [] new part-time position[s]," thereby triggering teachers' rights under Education Law §2510 to be placed on the preferred eligibility list for possible reemployment in a full-time position.**

The fact that the teachers rejected the offer of appointment to a.4 FTE and .2 FTE position, respectively, which resulted in their termination from the school district, did not render them ineligible for placement on the preferred eligibility list nor to appointment from such a list should they become eligible for appointment to a suitable vacancy.

* On appeal the school district’s argued that the teachers “were not entitled to placement on the preferred eligibility list because they did not have tenure.” The Appellate Division said that any argument based on an alleged lack of tenure was not properly before it inasmuch as that argument was raised for the first time on appeal.

** See, also, Appeal of Morehouse, Decisions of the Commissioner of Education, Decision #13,896

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October 07, 2014

The “going and coming to work” rule may affect an injured employee’s eligibility for disability benefits

The “going and coming to work” rule may affect an injured employee’s eligibility for disability benefits
Dreher v DiNapoli, 2014 NY Slip Op 06631, Appellate Division, Third Department

Among Court Officer John P. Dreher’s duties was transporting a judge who needed assistance to the courthouse from his residence. While traveling to the judge's residence Dreher took a brief detour in order to purchase a cup of coffee and was struck by a car while crossing the street, sustaining various injuries.

Dreher obtained line of duty injury benefits as provided under the controlling collective bargaining agreement. He then filed an application with the New York State Employees' Retirement System seeking accidental disability retirement benefits. His application was denied and Dreher appealed the System's decision..

The Appellate Division affirmed the Retirement System’s determination. The court explained that the State Comptroller "is vested with exclusive authority to determine all applications for retirement benefits, including the question of whether an accidental injury was sustained while in service, and if supported by substantial evidence, the determination must be upheld.”

The court noted that while Dreher testified that he was on duty when he was injured, he "'was engaged in a personal activity rather than performing work duties at the time when the incident occurred."

Finding that substantial evidence supported the Comptroller's determination that Dreher was not in service when he was injured, and notwithstanding the fact that he received line of duty injury benefits under the terms of the collective bargaining agreement, the court dismissed Dreher’s appeal.

Determining whether an individual was “in service” for the purposes of establishing eligibility for Workers’ Compensation benefits was an issue in Neacosia v NY Power Authority, 85 NY2d 471.

Here the Court of Appeals affirmed the Workers’ Compensation Board’s decision  that Michael Neacosia, who was injured after he stopped on his way home to leave his work uniform at a cleaning shop, was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

Neacosia was a security officer employed by the New York State Power Authority. The Authority provided its security officers with uniforms and required that they keep the uniforms clean and presentable. To this end the Authority had made arrangements with a number of cleaning establishments to clean their security officers’ uniforms and bill the agency for their services. In the alternative, security personnel could arrange for the cleaning themselves and then submit bills to the Authority for the cost of the cleaning.

Neacosia, after completing his tour of duty, left work and then stopped to deliver his uniforms for cleaning at one of the cleaners recommended by the Authority, which would then bill the Authority for its services.

Leaving the cleaning establishment, Neacosia headed home along his usual route and was involved in an automobile accident in which he sustained severe injuries. The Authority controverted Neacosia’s claim for Workers’ Compensation benefits, contending that he had been involved in an accident while driving his personal automobile on a public highway after leaving work and was not engaged in any work related activity at the time he was injured.

A Workers’ Compensation Administrative Law Judge decided that under the facts giving rise to Neacosia’s claim, which were stipulated, Neacosia's travel had a dual purpose that served to extend the scope of his employment. The Workers’ Compensation Board affirmed the ALJ’s determination.

Although the general rule is that an injury sustained by an employee during travel to and from the place of his or her employment does not come within the ambit of the Workers’ Compensation Law, there are certain exceptions to this "going and coming" rule. One such exception arises when the employee is engaged in a "special errand" for the employer.

The Court of Appeals sustained the Workers’ Compensation Board's ruling that Neacosia was engaged in a "special errand" at the time he was injured and thus eligible for Workers' Compensation benefits.

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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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