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October 15, 2014

Withdrawal of a resignation


Withdrawal of a resignation
2014 NY Slip Op 06883, Appellate Division, First Department

From time to time a former New York City Department of Education educator who was tenured in the position is reemployed in his or her former position. Does such a reemployment automatically result in the employee attaining tenure? 

The Appellate Division ruled that if a former tenured employee fails to comply with the regulations of the Chancellor of the New York City Department of Education governing the “withdrawal of a resignation and restoration to tenure,” the former employee’s tenure is not ipso facto*restored.

Rejecting a former New York City Principal’s contention that his tenure was constructively restored to him upon his reemployment by the New York Department of Education, the Appellate Division affirmed Supreme Court dismissal of his petition seeking a court order directing the Chancellor to reinstate him to his former position with tenure.

In a footnote to the decision, the Appellate Division said that “neither side has explained why petitioner could not still be restored to tenure if he now followed the procedures set out in the Chancellor's regulations.”

The relevant regulations appear to be Regulation C-205, subdivisions (28) and (29).

C-205(28) [Withdrawal of Resignation Generally] provides, in pertinent part, that “upon written request, a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation….”

C-205(29) [Withdrawal of Resignation within Five Years] addresses the reinstatement of former non-supervisory tenured staff and provides, in pertinent part, that in the event "a non-supervisory educator is reinstated more than five years after the effective date of his or her resignation," he or she will be required to serve a two-year probationary period.

With respect to employees subject to the Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

That said, 4 NYCRR 5.4, Reinstatement following resignation, provides, in pertinent part that a permanent employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant.

4 NYCRR 5.4 further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.”

Many local Civil Service Commissions have adopted similar rules.

* In other words, the individual does not attain tenure as a direct consequence of his or her reemployment.

The decision is posted on the Internet at: 
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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:
http://www.nycourts.gov/reporter/3dseries/2014/2014_06866.htm
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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: http://www.counsel.nysed.gov/Decisions/volume54/d16671
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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

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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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