Termination for lack of the proper teaching certificate not a disciplinary action requiring “notice and hearing”

Termination for lack of the proper teaching certificate not a disciplinary action requiring “notice and hearing”

2015 NY Slip Op 04732, Appellate Division, First Department

The Appellate Division rejected a teacher’s attempt to have the court annul the Department of Education of the City of New York's (DOE) decision to terminate his employment.

The teacher’s employment had been terminated because of his “failing to maintain minimum qualifications” – his teaching certificate.  The Appellate Division ruled that the teacher had not been terminated for disciplinary reasons* and thus he was not entitled to a hearing pursuant to Education Law §3020-a, citing Matter of NYS Office of Children and Family Services v Lanterman.

In Lanterman, 62 AD3d 1118, affirmed 14 NY3d 275, [Ciparick, J., dissenting] the decision explains that an employee terminated after losing the license required to perform the duties of the position was not entitled to a pre-termination disciplinary hearing because “whether a teacher has the statutorily required qualifications for the position is not a disciplinary matter subject to that provision.”

Rather, said the court, "certification is a statutory prerequisite that an individual is required to have to qualify for a teaching position in the public school system; it has nothing to do with discipline and, as such, is not an issue that is subject to arbitration under [the cited] provision of the [collective bargaining agreement].”

In Lanterman  two state employees had challenged their dismissal because they lacked the credentials required for their jobs. The workers had demanded that the question of whether their dismissals were disciplinary actions should be submitted to arbitration. Here the Court of Appeals, citing Matter of Felix v New York City Dept. of Citywide Admin. Servs. 3 NY3d 498, indicated that dismissals based of the lack of "credentials required for [the] job" clearly were not disciplinary actions and “the [Lanterman plaintiffs'] assertion that they were does not have a relationship with their collective bargaining agreement sufficient to justify arbitration of the issue.”

* The court, noting that DOE’s decision to terminate the individual was based on his lack of a proper teaching certificate was not arbitrary and capricious, observed that the teacher had failed to show that when DOE terminated his employment that he had been “retroactively certified.” This suggests that the employer should make some minimum inquiry concerning the employee's possession of a valid license, certification or other instrument required by statute to lawfully perform the duties of the position.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04732.htm

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The date on which an administrative agency's decision became final and binding on the individual triggers the running of the statute of limitations for challenging the determination

The date on which an administrative agency's decision became final and binding on the individual triggers the running of the statute of limitations for challenging the determination

School Adm'rs Assn. of N.Y. State v New York State Dept. of Civ. Serv., 124 AD3d 1174

One of the issues considered by the Appellate Division in this action concerned the timeliness of the challenge to the administrative decision made by the New York State Department of Civil Service [Department], which provided the court with an opportunity to review the question of the triggering of the running of the statute of limitations in terms of the timeliness of challenging an administrative agency’s “final decision.”

The court said that the parties had agree that for the purposes of  prosecuting this combined CPLR Article 78 proceeding and action for declaratory judgment, the four-month statute of limitations set forth in CPLR §217(1) controlled. In addressing this issue the Appellate Division explained:

1. Both the statute and case law make clear that the statute of limitations period for a CPLR Article 78 proceeding begins to run when "the determination to be reviewed becomes final and binding upon the petitioner."

2. Such determination, in turn, "becomes 'final and binding' when two requirements are met: completeness (finality) of the determination and exhaustion of administrative remedies, whereby:

a.       The agency must have reached a definitive position on the issue that inflicts actual, concrete injury and second, the injury inflicted may not be . . . significantly ameliorated by further administrative action or by steps available to the complaining party." and

 b.      In the context of quasi-legislative determinations such as the one at issue here, actual notice of the challenged determination is not required in order to start the statute of limitations clock; rather, the statute of limitations begins to run once the administrative agency's "definitive position on the issue [becomes] readily ascertainable" to the complaining party.

A May 15, 2012 policy memorandum promulgated by the Department that “redefined the class of employees” eligible to participate in “health insurance buyout programs” offered by the New York State Health Insurance Program [NYSHIP] participating agencies stated that the policy was "effective immediately." While the May 15, 2012 memorandum contained a "grandfather clause" that, in effect, afforded a limited grace period to certain participating agencies with an existing buyout program in place, the Appellate Division said that “the presence of such clause did not render the decision of the Department of Civil Service as to employee eligibility any less final” nor did it render the injury allegedly suffered by individuals subject to its provisions any less concrete.

The Appellate Division concluded that the policy memorandum constituted a "definitive position" on the issue of buyout program eligibility which the Department could not be "significantly ameliorated by further administrative action."

As to the actual date upon which the four-month statute of limitations commenced to run, the court agreed with the Department that the "readily ascertainable" requirement is styled as a constructive notice standard, there by obviating the need for an actual delivery of an “in-hand notice” of the underlying determination to individuals affected by the change.

The Department described its procedure in disseminating its May 15, 2012 policy memorandum as including mailing copies of the policy to the chief executive officers of all NYSHIP participating agencies, as well as to any individual who had requested a copy via the participating agency; posting the memorandum on a website for health benefit administrators and discussing the memorandum at the participating agency regional meetings hosted by the Department of Civil Service in October 2012.

Under these circumstances, said the Appellate Division, it was of the view that a petitioners' claims accrued, and the statute of limitations began to run, upon the effective date of the policy memorandum -- May 15, 2012.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2015/2015_00676.htm

The five most read New York Public Personnel Law postings as of June 12, 2015

The five most read New York Public Personnel Law postings as of June 12, 2015

Click on the "URL" highlighted in color to access the posting

Essentials of the "PickeringBalancing Test”

http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The legal distinction between domicile and residence

http://publicpersonnellaw.blogspot.com/2011/01/legal-distinction-between-domicile-and.html

Any administrative action in the nature of discipline taken against a tenured teacher must be taken pursuant to Education Law §3020-a exclusively

http://publicpersonnellaw.blogspot.com/2010/07/any-administrative-action-in-nature-of.html

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

http://publicpersonnellaw.blogspot.com/2012/02/employees-inability-to-provide.html

 

Two different complaints; two different forums

http://publicpersonnellaw.blogspot.com/2011/12/two-different-complaints-two-different.html

Total number of NYPPL pageviews as of June 12, 2015: 1,000,269 

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending June 13, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending  June 13, 2015

Click on text highlighted in color  to access the full report

Employee paid for the same "work time" claimed in two different school districts

A Buffalo City School District technician was sentenced June 11, 2015 for claiming simultaneous work hours at two public school districts, according to an audit [see http://www.osc.state.ny.us/localgov/audits/schools/2015/buffalo.pdf] and investigation released by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/061115.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061115release

Comptroller released municipal audits for the following political subdivisions of the State:

Dunham Public Library

http://www.osc.state.ny.us/localgov/audits/libraries/2015/dunham.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Berlin

http://www.osc.state.ny.us/localgov/audits/towns/2015/berlin.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Galen

http://www.osc.state.ny.us/localgov/audits/towns/2015/galen.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Huron

http://www.osc.state.ny.us/localgov/audits/towns/2015/huron.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Inlet

http://www.osc.state.ny.us/localgov/audits/towns/2015/inlet.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Village of Johnson City

http://www.osc.state.ny.us/localgov/audits/villages/2015/johnsoncityjc.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Lake Ronkonkoma Fire District

http://www.osc.state.ny.us/localgov/audits/firedists/2015/lakeronkonkoma.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Louisville

http://www.osc.state.ny.us/localgov/audits/towns/2015/louisville.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Town of Princetown

http://www.osc.state.ny.us/localgov/audits/towns/2015/princetown.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

and the

Town of Virgil

http://www.osc.state.ny.us/localgov/audits/towns/2015/virgil.pdf?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061015release

Finger Lakes Group Home overpaid for food and supplies

The State’s Office for People with Developmental Disabilities’ Finger Lakes Developmental Disabilities Service Office (DDSO) skirted state procurement laws for more than 1,400 purchases worth more than $1 million, gave one vendor an unfair advantage in obtaining the state’s business and overpaid for hundreds of household items, according to an [see http://www.osc.state.ny.us/audits/allaudits/bseaudits/bse20150612.pdf] released June 12, 2015 by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/061215.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=061215release

NYC projects $3 billion surplus for 2015

New York City is projecting a surplus of $3 billion for fiscal year (FY) 2015 and a balanced budget for FY 2016 with relatively small gaps in the following three years, according to a review [see http://www.osc.state.ny.us/osdc/rpt1-2016.pdf] of the city’s updated financial plan released June 8, 2015 by State Comptroller Thomas P. DiNapoli.

http://www.osc.state.ny.us/press/releases/june15/060815b.htm?utm_source=weeklynews20150614&utm_medium=email&utm_campaign=060815brelease

OATH pre-hearing discovery procedures

OATH pre-hearing discovery procedures

OATH Index No. 853/15.

In proceedings at OATH, some parties engage in informal discovery, although OATH rules of practice provide broad guidelines for discovery practices.

When a party fails to respond to discovery demands, the opposing party should make a pre-trial motion to compel production to the trial judge as soon as possible. Conversely, an objection to discovery should also be made as soon as possible.

Here, petitioner sought to exclude evidence offered by respondent as a sanction for respondent's failure to timely produce documents in response to reciprocal discovery. Administrative Law Judge Tynia D. Richard found respondent’s production inadequate but declined to impose a sanction because she did not find evidence that the non-compliance was willful. However, counsel was warned that similar conduct could result in sanctions in the future.

Posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15-853.pdf

Filing disciplinary charges against an individual is a condition precedent for a demand to an administrative disciplinary hearing

Filing disciplinary charges against an individual is a condition precedent to a demand for an administrative disciplinary hearing

2015 NY Slip Op 00587, Appellate Division, Third Department

Following an investigation, New York State’s Division of Human Rights [SDHR] issued a determination of no probable cause to believe that the employer, a school district [District] had engaged in unlawful discriminatory practices with respect to the compliant filed with it by a former District employee [Complainant]. Complainant challenged SDHR’s determination.

Supreme Court dismissed Complainant’s Article 78 petition; the Appellate Division sustained the Supreme Court’s ruling.

One of the issues considered by the Appellate Division was Complainant’s argument concerning her request for a disciplinary hearing pursuant to Education Law §3020-a.

While the Appellate Division said that this issue was “unpreserved because she did not raise it before SDHR or Supreme Court,” it observed that Complainant’s argument “lacks merit because the [District] never filed formal disciplinary charges against her.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_00587.htm

Pension Fund’s use of Social Security Administration’s decision to determine an applicant’s eligibility for disability pension benefits permitted

Pension Fund’s use of Social Security Administration’s decision to determine an applicant’s eligibility for disability pension benefits permitted

USCA, Second Circuit, Docket #14-877

The Federal District Court dismissed an ERISA action brought by a pension plan participant seeking a pension on the basis of permanent disability. The applicant had challenged the Pension Plan Fund’s [Fund] reliance on a determination made by the Social Security Administration [SSA] as to his eligibility for disability pension benefits available to enrollees in the Plan.

The U.S. Circuit Court of Appeals affirmed the District Court’s ruling, explaining that the terms of the pension plan at issue gave the Fund discretion to determine an applicant's eligibility for benefits under the plan and the Fund reliance on the Social Security Administration’s determinations with respect to applicant’s disability and eligibility for disability retirement benefits in accordance with the Plan’s policies and procedures was neither arbitrary nor capricious.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/01595904-aa2e-47ce-84fb-00511c19d71f/1/doc/14-877_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/01595904-aa2e-47ce-84fb-00511c19d71f/1/hilite/

Employer’s questions on its electronic application form for employment the subject of allegations of unlawful discrimination

Employer’s questions on its electronic application form for employment the subject of allegations of unlawful discrimination
Costco Wholesale Corp. v New York State Div. of Human Rights, 2015 NY Slip Op 04587, Appellate Division, First Department

The New York State Division of Human Rights [Division], after a hearing, found that Costco Wholesale Corporation [Costco] had violated the State Human Rights Law (Executive Law §296) when it included certain questions on its electronic application form for employment and ordered Costco to pay $40,000 in civil fines and penalties.

Costco appealed and the Appellate Division unanimously annulled the Division’s determination and the fine and penalties that it had imposed on Costco.

The Appellate Division said that the Division’s determination that Costco had violated Executive Law §296(15) and Article 23-A of the Corrections Law is not supported by substantial evidence as the evidence in the record did not show that Costco’s online employment application system automatically disqualified applicants with a prior criminal conviction.

The court said that the evidence showed that questions that could lead to an applicant’s “automatic” disqualification concerned the applicant’s “legal documentation to work in the United States,” his or her willingness to undergo a criminal background check and employment reference check, his or her willingness to submit to a drug test, whether the applicant states the he or she is able to perform the essential functions of the job, and whether the applicant is 18 years of age or older.

As to an applicant’s response to a question concerning his or her “prior conviction,” the Appellate Division commented that the question was specifically “not an automatic bar to employment, as stated in the application itself.“ The Appellate Division said that the fact that the complainant's application was designated as "pre-screened" indicating that it had passed through the online portion of the hiring process and “was not marked ineligible.”

Nor, said the court, was there any evidence that Costco’s grading criteria for applicants with convictions was used in connection with the online application. Instead, noted the Appellate Division, the evidence showed that this non-mandatory guideline was used only when an applicant had reached the background check stage of the hiring process.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04587.htm

The “law enforcement exemption” in POL §87(2) (e) (iv) is not applicable to FOIL requests for documents that might result in administrative disciplinary action

The “law enforcement exemption” in POL §87(2) (e) (iv) is not applicable to FOIL requests for documents that might result in administrative disciplinary action

2015 NY Slip Op 04356, Appellate Division, Third Department

Department of Taxation and Finance [Department] undertook a department-wide audit to identify employees who had overstated their job-related expense deductions on their personal income tax returns. As a result a number of employees [Petitioners] serving in the Department's Criminal Investigation Division, were issued notices advising them to — in accordance with the provisions of their union contract — submit to an official interrogation in order to determine whether disciplinary action was warranted.

Petitioners objected to the interrogation and filed a Freedom of Information Law [FOIL] request seeking "any and all documents, records, memoranda and files . . ., which relate, concern, were precipitated by, or respond to, directly or indirectly, to the . . . proposed interrogation of [Petitioners]."

The Department’s records access officer produced various documents but denied access to, among other things, 68 pages of documents containing proposed interrogation questions — citing the “law enforcement exemption” as justification for withholding those documents. Ultimately Petitioners initiated a CPLR Article 78 proceeding seeking disclosure of the remaining withheld documents. Following an in camera inspection, Supreme Court concluded that the 68 pages of proposed questions did not fall with the “law enforcement exemption” and ordered the release of those pages.

The Appellate Division affirmed the Supreme Court’s ruling, explaining that “Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2)," citing Williamson v Fischer, 116 AD3d 1169, leave to appeal denied, 24 NY3d 904.

The court said that "[e]xemptions are narrowly construed, with the agency that seeks to prevent disclosure bearing the burden of demonstrating that the requested material falls squarely within an exemption by articulating a particularized and specific justification for denying access." In denying access to the 68 pages of proposed interrogation questions, the Department “relied exclusively upon Public Officers Law §87(2) (e) (iv), which exempts from disclosure "records or portions thereof that . . . reveal criminal investigative techniques or procedures, except routine techniques and procedures."

The statute’s references criminal investigative techniques or procedures, and prevailing case law suggests that this exemption applies only to a FOIL request that, at the very least, has its genesis in an underlying criminal investigation or prosecution. As the records before the Appellate Division “makes no reference to a criminal investigation implicating [Petitioners}, nor does it suggest that state or local law enforcement officials would be involved in the proposed interrogation of them, the court found that the law enforcement exemption embodied in Public Officers Law §87 (2) (e) (iv) was inapplicable to the documents at issue .

Observing that the Department sought to question Petitioners in accordance with the provisions of their union contract for the purpose of gathering information that, in turn, potentially could result in the commencement of administrative disciplinary proceedings, the Appellate Division concluded that the Department’s reliance on the “law enforcement exemption” was misplaced. Further, the Appellate Division said that it was satisfied that “even assuming this exemption otherwise applied here, the questions at issue were routine in nature — the disclosure of which would not reveal detailed or specialized investigative techniques or procedures.”

The court noted two additional grounds advanced by the Department for denying disclosure of the proposed interrogation questions – the exemption of [1] the disclosure of records that "interfere with law enforcement investigations or judicial proceedings,” and the exemption of [2] pre-decisional, inter-agency or intra-agency materials from disclosure. For a number of procedural reasons set out in the opinion, the Appellate Division declined to consider these arguments

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04356.htm

Regular monthly meeting of the State Civil Service Commission for June 2015 scheduled

PUBLIC NOTICE

Department of Civil Service

PURSUANT to the Open Meetings Law, the New York State Civil Service Commission hereby gives public notice of the following:

Please take notice that the regular monthly meeting of the State Civil Service Commission for June 2015 will be conducted on June 16 and June 18 commencing at 10:00 a.m. This meeting will be conducted at NYS Media Services Center, Suite 146, South Concourse, Empire State Plaza, Albany, NY.

For further information, contact:

Office of Commission Operations,

Department of Civil Service,

Empire State Plaza, Agency Bldg. 1,

Albany, NY 12239 
 (518) 473-6598