Determining the availability of Jarema credit for the purposes of attaining tenure

Determining the availability of Jarema credit for the purposes of attaining tenure

2015 NY Slip Op 04847, Appellate Division, Second Department

Pursuant to Education Law §3012(1)(a), teachers were appointed for a probationary period of three years.*However, in the case of a teacher who has rendered satisfactory service as a regular substitute for a period of two years and has been appointed to teach the same subject on an annual salary, the probationary period is limited to one year. Although service as a substitute teacher does not constitute probationary service for purposes of obtaining tenure as a regular teacher, a substitute teacher's three-year probationary period can be reduced to one year through so-called "Jarema" credit, so named for the sponsor of the bill that provided for this calculation of credit.**

A certified teacher [Petitioner] in elementary education and special education was employed by the School District as a permanent substitute teacher in a general education kindergarten class during the 2008-2009 school year. She subsequently taught as a probationary special education teacher during the 2009-2010, 2010-2011, and 2011-2012 school years in first and fourth grade integrated co-teaching classes.

On May 22, 2012, based on the recommendation of the Superintendent of Schools, the  School District’s Board of Education terminated Petitioner's employment without a hearing effective June 22, 2012. Petitioner, contending that she had attained tenure by estoppel and thus could not be terminated without a hearing, commenced a CPLR Article 78 proceeding in the nature of mandamus seeking a judgment compelling her reinstatement as a tenured teacher by the School District with back pay.

The Supreme Court denied the petition and dismissed the proceeding, concluding that the Petitioner did not establish that she had acquired tenure by estoppel and thus was not entitled to a hearing before her employment could be terminated. As to attaining tenure by estoppel, in McManus v Board of Education, Hempstead UFSD, 87 NY2 183, the Court of Appeals held that "Tenure may be acquired by estoppel when a school board accepts the continued services of a teacher or administrator, but fails to take the action required by law to either grant or deny tenure prior to the expiration of the teacher's probationary term."

The Appellate Division said that Supreme Court properly concluded that Petitioner did not acquire tenure by estoppel,*** explaining:

1. Petitioner did not acquire tenure by estoppel in the special education tenure area, as the Petitioner did not teach in that area for a period of time exceeding the three-year probationary period required for gaining tenure.

2. Probationer was not entitled to Jarema credit for the additional year she taught general-education kindergarten, as such service was not in the same "subject" area as special education.

3. Petitioner failed to establish that she acquired tenure by estoppel in the elementary education tenure subject area as during the 2009-2010, 2010-2011, and 2011-2012 school years, Petitioner was employed as a probationer in the special education tenure subject area, not the elementary tenure subject area and she taught as a special education teacher in co-teaching classrooms along with general education teachers.

4. Petitioner failed to establish that she devoted at least 40% of her time to teaching elementary education in the co-teaching classes, as opposed to teaching special education in those classes.

Thus, said the Appellate Division, the record does not support Petitioner’s contention that she was entitled to tenure by estoppel as an elementary education teacher.

* See http://publicpersonnellaw.blogspot.com/2015/04/amendments-to-education-law-included-in.htmland http://publicpersonnellaw.blogspot.com/2015/07/education-department-posts-proposed.htmlfor recent amendments to tenure requirements.

**  Jarema credit cannot exceed two years and the service as a substitute teacher must be continuous for at least one school term.

*** “Tenure by estoppel” is sometimes referred to as “tenure by acquisition,” “tenure by default,” or “tenure by inaction.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04847.htm

Advisory opinions of the New York City Corporation Counsel

Advisory opinions of the New York City Corporation Counsel

2015 NY Slip Op 05887, Appellate Division, First Department

In this action a trustee [Trustee] on the Police Pension Fund (PPF) Board of Trustees sought a court order prohibiting the New York City Corporation Counsel from providing statutory interpretation and legal direction to the New York City Police Pension Fund Medical Board regarding the application of Administrative Code of City of NY §13-254. §13-254 sets out a mechanism for a police officer retired on disability to be reexamined by the Medical Board with an eye toward returning to City employment, either at the pensioner's own request or by application of the Board of Trustees.

The Appellate Division said that the Medical Board is the Corporation Counsel’s client and that such a communication falls well within his broad duty to "conduct all the law business of the city and its agencies,” rejecting Petitioner's argument that such communication was barred by attorney-client privilege attaching to either the Board of Trustees or Trustee individually.

Further, said the court, the Board of Trustees is empowered to differ with its counsel on matters of statutory interpretation and reach its own position on such questions, citing Seiferheld v Kelly, 16 NY3 561.

In the words of the court, "… the trustees should weigh the advice of the City's Law Department in deciding the question, but the decision is theirs, subject to appropriate judicial review."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05887.htm

A member of the NYS Employees’ Retirement System must file a timely application in order to be eligible to receive a disability retirement allowance

A member of the NYS Employees’ Retirement System must file a timely application in order to be eligible to receive a disability retirement allowance

2015 NY Slip Op 04907, Appellate Division, Third Department

A correction officer [Officer] employed by the Department of Corrections and Community Supervision [DOCCS] received two notices of discipline and, as a result of those notices, was suspended without pay.

In February 2012, Officer entered into a settlement agreement [Settlement] with DOCCS in full satisfaction of both notices of discipline. The Settlement provided that, for a two-week period, Officer would be both placed on administrative leave with pay and "on [the] payroll." The parties also agreed that the Settlement did not provide for or allow petitioner, during that two-week period, to perform any of the services for DOCCS for which he had been hired.

During that two-week period and in March 2012, Officer applied for disability retirement benefits and performance of duty disability retirement benefits. A Hearing Officer found that both of the applications submitted by Officer were untimely as a matter of law. The Comptroller adopted the findings of the Hearing Officer and rejected both the Officer’s applications for disability retirement benefits and his application for performance of duty disability retirement benefits.

The Comptroller found that Retirement and Social Security Law [RSSL] §507-a(b)(2) required that "an application be filed within three months from the last date the member was being paid on the payroll" includes the requirement that such a member be receiving payments for services rendered while working. Notably, the courts have held that the same phrase "on the payroll," used in RSSL §605(b)(2) contains a requirement that payments “are for services rendered while working.”

Officer appealed the Comptroller’s determination.

The Appellate Division sustained the Comptroller’s decision explaining that “[t]he Comptroller is vested with the exclusive authority to resolve applications for any form of retirement benefits.”  If the Comptroller's application and interpretation of the relevant statutes are not irrational, unreasonable or contrary to the statutory language, his determination will be upheld by the court.

Considering the events giving rise to this action, the court said that Comptroller's interpretation of RSSL §507-a(b)(2) “is consistent with this Court's construction of the identical phrase in RSSL§605(b)(2) and legislative history supports the conclusion that the identical phrases in those two provisions should be given the same construction.” Thus, said the court, the Comptroller’s interpretation of RSSL §507-a(b)(2) as requiring payment for services rendered while working is not irrational, unreasonable or contrary to the statutory language.

Citing Officer’s concession that he did not render “any services while working” after August 2009, the “Appellate Division confirmed the Comptroller’s determination” that Officer’s March 2012 application for disability retirement benefits was untimely.

The court reach the same conclusion regarding Officer's application for benefits pursuant to RSSL §507-b, whereby "[t]o be effective, an application for performance of duty disability retirement under [RSSL] §507-b . . . shall be filed within two years after the member is first discontinued from service, as provided . . . under . . . subdivision a of [RSSL §] 63" and a member is only entitled to a retirement allowance if the application is timely in relationship to the member being "[a]ctually in service upon which his [or her] membership is based."

As Officer “did not perform the services that entitled him to membership after August 2009,” the Appellate Division also confirmed the Comptroller’s determination that his March 2012 application for performance of duty disability retirement benefits was untimely.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04907.htm

Employee terminated because of a pattern of aggressive and inappropriate workplace conduct

Employee terminated because of a pattern of aggressive and inappropriate workplace conduct

2015 NY Slip Op 05422, Appellate Division, First Department

The Administrative Law Judge [ALJ] sustained three charges of misconduct against the employee [Petitioner] and Petitioner was terminated from his employment. Petitioner initiated an action pursuant to CPLR Article 78 challenging the ALJ’s findings, which Supreme Court transferred to the Appellate Division as the decision to dismiss Petitioner was made following an administrative hearing.

The Appellate Division sustained the ALJ’s decision, finding that substantial evidence supports the determination that Petitioner committed the charged acts of misconduct. The record, said the court, shows that Petitioner engaged in a pattern of aggressive and inappropriate workplace conduct, and there exists no basis to disturb the credibility determinations made by the ALJ.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05422.htm

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Employer required to consider providing a reasonable accommodation after employee placed on workers’ compensation leave

Employer required to consider providing a reasonable accommodation after employee placed on workers’ compensation leave

2015 NY Slip Op 05147, Appellate Division, Second Department

An employee [Employee] was injured on the job and as a result of her injury she was unable to work and was placed on leave of absence without pay pursuant to Civil Service Law §71, Workers’ Compensation Leave.*

About a year after being placed on leave pursuant to §71, the appointing authority sent Employee “a notice of proposed termination” of her employment** pursuant to Civil Service Law §71. Employee challenged the proposed termination and sought reinstatement prior to the effective date of her termination.

The appointing authority [Agency] denied Employee’s request, without ordering a new independent medical examination, on the grounds that the Employee [1] had failed to demonstrate that she was medically fit to return to work and [2] had failed to provide the appointing authority with a date by which she would be able to return to full duty. Ultimately Employee was terminated.

In an action to recover damages for unlawful discrimination in employment on the basis of disability and retaliation in violation of Executive Law §296, Employee appealed so much of an order of the Supreme Court dismissing her first cause of action in which she had alleged discrimination in employment on the basis of disability.

The Appellate Division reversed the Supreme Court’s granting the Agency motion for summary judgment dismissing Employee’s first cause of action in which she alleged unlawful discrimination in employment on the basis of disability, holding that the motion should have been denied.

Civil Service Law §71, Workers’ Compensation Leave, provides that an individual injured on the job and unable to perform the duties of his or her position is entitle to at least one year of leave without pay unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

Employee commenced this action, contending that the Agency discriminated against her because of her disability by failing to provide a reasonable accommodation in the form of light duty or additional time for recovery.

In the words of the Appellate Division, "The employer has a duty to move forward to consider accommodation once the need for accommodation is known or requested," explaining that:

1. An employer normally cannot obtain summary judgment on a disability discrimination claim pursuant to Executive Law §296 "unless the record demonstrates that there is no triable issue of fact as to whether the employer duly considered the requested accommodation; and 

2. An employer cannot present such a record "if the employer has not engaged in interactions with the employee revealing at least some deliberation upon the viability of the employee's request.

Viewing the evidence in the light most favorable to Employee, the Appellate Division found that the Employee’s responses to the notice of proposed termination could reasonably have been understood as a request for accommodation which Agency rejected by terminating the Employee’s employment based on her inability to return to work within the one year permitted under Civil Service Law § 71.

The Appellate Division concluded that Agency failed to establish, prima facie, that it had engaged in a good faith interactive process that assessed the needs of Employee and the reasonableness of her requested 

* §71 permits an employee to use any and all available leave credits until exhausted in order to remain on the payroll while on Workers’ Compensation Leave.

** §71 provides for the reinstatement of the employee after separation for disability if the individual applies for such reinstatement within one year of the termination of his or her disability [Duncan v NYS Developmental Center, 63 NY2d 128].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05147.htm

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Courts do not have discretion to hear an untimely Article 75 action challenging an administrative determination

Courts do not have discretion to hear an untimely Article 75 action challenging an administrative determination

2015 NY Slip Op 05406, Appellate Division, First Department

Supreme Court denied a petition seeking to vacate an arbitration award upholding an administrative determination made after a hearing conducted pursuant to a collective bargaining agreement between the Employee's union and the employer terminating the employee from her position and confirmed the arbitration award, unanimously affirmed, without costs.

The Appellate Division held that Supreme Court properly held this special proceeding, commenced pursuant to CPLR Article 78, was in the nature of a CPLR article 75 proceeding challenging the award rendered by the arbitrator pursuant to the grievance procedures set forth in the collective bargaining agreement with Petitioner's union.

Accordingly, Supreme Court had properly dismissed the petition on the ground that it was untimely filed pursuant to the applicable 90-day statute of limitations set out in CPLR §7511[a]), based on Petitioner's admission that she received formal notice of the arbitration award on July 6, 2012.

The fact that Petitioner's pro sestatus in this action, said the Appellate Division, is not a basis to reach the merits of her claim.

An individual who is acting as his or her own attorney in a court action is said to be acting “pro se.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05406.htm

Appellate Division, Fourth Department, hold employer’s decision not to hire an individual because the individual was pregnant a form of unlawful discrimination

Appellate Division, Fourth Department, hold employer’s decision not to hire an individual because the individual was pregnant a form of unlawful discrimination

2015 NY Slip Op 05384, Appellate Division, Fourth Department

A part-time school guidance counselor [Counselor] alleged that the School District [District] had discriminated against her on the basis of "sex/pregnancy" when it declined to renew her employment contract shortly after learning that she was pregnant.

Counselor was employed as a part-time counselor for the District for the 2011-2012 school year and the District invited her to apply for a position for the following school year. Counselor did apply for continued employment with the District and also requested a "pregnancy/disability leave" from the end of August 2012 through January, 2013. Counselor said that she was then notified that she would not be hired because of her anticipated absence.

Counselor filed a complaint with the State Division of Human Rights [SDHR] alleging the District had unlawfully discriminated against her on the basis of "sex/pregnancy." SDHR found “no probable cause” and dismissed Counselor’s complaint without a hearing.

Counselor commenced a CPLR Article 78 proceeding seeking to annul SDHR finding that there was no probable cause to believe that the District had unlawfully discriminated against her. Supreme Court granted Counselor’s petition and remitted the matter to SDHR for a hearing. The Appellate Division affirmed the lower court’s ruling.

The court said that "Where, as here, a determination of no probable cause is rendered [by SDHR] without holding a public hearing pursuant to Executive Law §297(4)(a), the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis." However, explained the Appellate Division, “[t]he complainant's factual showing must be accepted as true on a probable cause determination.” Although the court’s “standard of review” is highly deferential to SDHR’s determination, in this instance the Appellate Division agreed with Supreme Court that SDHR’s determination "was not rationally based upon the evidence presented."

Executive Law §296 prohibits an employer from refusing to hire or employ an individual based on the individual's gender. Rejecting the District’s argument that it decided not to rehire Counselor because of her unavailability and its concern for continuity of counseling services for its students, the Appellate Division, noting that Counselor would be unavailable to work because of her pregnancy, said “we conclude that discrimination could be inferred from the record before us.”

The court observed that the District had relied on Roslyn Union Free Sch. Dist. v State Div. of Human Rights, 72 AD2d 808, in support of its argument that it did not unlawfully discriminate against Counselor. However, said the Appellate Division, “to the extent that Roslyn holds that a decision not to hire an individual because the individual is pregnant is not a form of discrimination,” it declined to follow it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05384.htm

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees

Free Webinar addressing the taxation of accumulated sick and leave pay for retiring employees

Source: Federal, State and Local Government Newsletter [IRS]

Webinar to be held on July 30, 2015; 2 p.m. (Eastern)

Topics to be addressed:

Determining when accumulated sick and vacation pay are subject to federal employment taxes

Determining when taxation can be deferred to a later year

Defining an elective employee contribution

Defining a non-elective employer contribution

Click here to Register for this event.

NOTE: You will use the same link to attend the event.

If you have any questions or comments, click her to send us an e-mail.

Fair Chance Hiring Application Revisions and Statewide Employment Application

Fair Chance Hiring Application Revisions and Statewide Employment Application

NYS Department of Civil Service General Information Bulletin No. 15-02

Scott DeFruscio, New York State Department of Civil Service Director of Staffing Services, announced the publication of NYS Department of Civil Service General Information Bulletin No. 15-02 addressing the Department’s Fair Chance Hiring Application Revisions and Statewide Employment Application

The Bulletin is posted on the Internet at:

http://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB15-02.cfm

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 11, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending July 11, 2015

[Click on text highlighted in color to access the full report]

Department of Agriculture and Markets - Food Safety Monitoring

An audit report issued in January 2014 found the department was unable to meet the demands of its inspection frequency schedule, and identified instances of both existing and new establishments preparing food prior to obtaining the required inspection. In addition, the department’s staff of 82 inspectors was below recommended staffing levels. In a follow-up, auditors found department officials made significant progress in addressing the problems identified in the initial audit. Of the three prior audit recommendations, two were implemented and one was partially implemented. http://osc.state.ny.us/audits/allaudits/093015/15f10.pdf

Division of the Budget - Quality of Internal Control Certifications

In 2012, auditors conducted a series of audits at 12 state agencies focusing specifically on their 2011-2012 Internal Control Certifications submitted to the Division of the Budget (DOB). Auditors examined whether these agencies submitted their certifications on time, answered all the questions with the appropriate level of detail, and maintained documentation supporting the answers given. The initial audit reports concluded that improvements were needed to the quality of Internal Control Certifications at 10 of the 12 agencies. In a follow-up report, auditors found agency officials made significant progress in addressing the problems identified. http://osc.state.ny.us/audits/allaudits/093015/15f7.pdf

Department of Health -Overpayments of Hospitals’ Claims for Lengthy Acute Care Admissions
An initial audit report issued in July 2013 identified $7.8 million in Medicaid overpayments. The overpayments occurred primarily because hospitals billed Medicaid for higher (and more costly) levels of acute care when, in fact, patients received lower-cost non-acute care. In a follow-up, auditors found DOH officials recovered the overpayments identified in the initial report, notified hospitals of the correct way to bill inpatient claims, and modified its contractor’s sampling plan to select and review similar claims at high risk of overpayment. http://osc.state.ny.us/audits/allaudits/093015/15f12.pdf

Roswell Park Cancer Institute - Security Over Electronic Protected Health Information

The institute has taken many steps to safeguard its electronic protected health information (ePHI) and meet security requirements. In addition, auditors found the institute has adequate protection policies in place and a plan to make mandatory notifications when ePHI is lost or stolen. However, auditors identified some improvement opportunities. http://osc.state.ny.us/audits/allaudits/093015/14s67.pdf

State Universityof New York - Selected Procurement and Contracting Practices

SUNY officials have generally established good internal controls over procurement and have effectively communicated these procedures to the campuses. Tests at seven campuses and system administration, however, found they don’t consistently follow some of these procurement policies. For example, of 924 procurements reviewed, 97 inthe $500 to $250,000 range and totaling more than $1.1 million lacked required documentation to demonstrate that the price was reasonable. Auditors also identified some campus practices that go beyond SUNY’s requirements to manage cost and could serve as best practice examples if more widely shared among the campuses. http://osc.state.ny.us/audits/allaudits/093015/14s19.pdf