Public Authority agrees to pay legal expenses incurred as a result of its not responding to a Freedom of Information request

Public Authority agrees to pay legal expenses incurred as a result of its not responding to a Freedom of Information request

Source: Empire Center for Public Policy

The Metropolitan Transportation Authority [MTA] and the Empire Center for Public Policy [Center] have reached an out-of-court settlement in which the MTA acknowledged its failure to respond “in a timely manner” to a Freedom of Information Law (FOIL) request submitted to it by the Center.

MTA agreed to pay the legal costs and fees incurred by the Center in the course of settling the lawsuit brought by the Center to obtain MTA 2014 payroll records.* The Center said that it had initiated the legal action after more than four months of  “delays and missed deadlines” by MTA. 

The Center alleged that although some MTA units provided payroll records after lengthy delays, the MTA’s New York City Transit Authority failed to answer the  Center’s “appeal of denial,” the last avenue of recourse to exhaust its administrative remedy, before initiating the legal action.

The payroll data are posted and updated annually at http://seethroughny.net/, the Empire Center’s “transparency website.”

* Empire Center for Public Policy v Metropolitan Transportation Authority, New York City Transit Authority, Supreme Court, Kings County, Docket 6681/2015

Court dismissed discrimination complaint for failure to allege discriminatory intent and for failure to exhaust administrative remedies

Court dismissed discrimination complaint for failure to allege discriminatory intent and for failure to exhaust administrative remedies

Burgis v New York City Department of Sanitation, USCA, Second Circuit, Docket #14-14-1640 cv

In this class action lawsuit the plaintiffs alleged that they suffered unlawful discrimination on the basis of race and/or national origin in the New York City Department of Sanitation’s promotional practices, relying on statistics that they claim demonstrate disparities in the composition of various supervisory positions within the department.

The federal district court dismissed the Equal Protection and §1981 claims filed by the plaintiffs “for failure to allege discriminatory intent”, and dismissed their Title VII claim  alleging disparate impact “for failure to exhaust administrative remedies.”

The Court of Appeals, Second Circuit, sustained the district court’s ruling, explaining that although statistics alone may be sufficient in some circumstances to show discriminatory intent in an Equal Protection or §1981 class claim, “the statistics here alleged in the complaint were insufficient for this purpose” and, further, the plaintiffs failed to exhaust their administrative remedies prior to filing the Title VII disparate impact claim.

As to the statistics presented by the plaintiffs, the Circuit Court said the plaintiff’s bare allegations do not present circumstances that “give rise to an inference of unlawful discrimination.” Without any specificity as to the qualifications considered for each position and without any reference to specific statements or individual circumstances that suggest discriminatory treatment, plaintiffs’ allegations do not support a finding that the Department of Sanitation acted with a discriminatory purpose.

Addressing the plaintiffs’ Title VII claim, the court said that discriminatory intent need not be alleged in a case based on so-called “disparate impact." In this instance, however, the plaintiffs’ Title VII claim must be dismissed for failure to exhaust administrative remedies.

To bring a claim under Title VII, explained the court, a plaintiff must first have filed a complaint with the Equal Employment Opportunity Commission (“EEOC”) or a state equivalent - here, the New York State Division of Human Rights - as Courts may only hear claims “reasonably related” to allegations set forth in the administrative complaint.

Accordingly, said the court, the judgment of the United States District Court is affirmed.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/abbf2748-836b-4838-813b-85ffacc115c6/9/doc/14-1640_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/abbf2748-836b-4838-813b-85ffacc115c6/9/hilite/

Disqualification of applicants for a license or employment because of his or her criminal conviction

Disqualification of applicants for a license or employment because of his or her criminal conviction

Source: Civil Service Attorney LawBlog, by Kevin Sheerin

In a lawsuit brought by the New York Community Service Society [DCAS] for petitioner, KM, Judge Moulton of the New York County Supreme Court held “that both the New York City Department of Citywide Administrative Services and the New York City Civil Service Commission failed to consider Correction Law Article 23-A, in disqualifying the petitioner.”

Article 23-A of the Correction Law, enacted in 1976, addresses the “Licensure and Employment of Persons Previously Convicted of One or More Criminal Offenses,” and attempts to eliminate the effect of bias against ex-offenders by imposing an obligation on employers and public agencies to deal equitably with them by setting out a broad general rule that employers and public agencies cannot deny employment or license to an applicant solely based on the applicant status as an ex-offender.

Petitioner had applied for employment as a DCAS special officer  but was disqualified by Citywide Administrative Service. Petitioner then appealed Administrative Service’s decision to the New York City Civil Service Commission. The Commission sustained Petitioner’s disqualification. Supreme Court reversed the Commission’s decision.

In Arrocha v NYC Bd. of Education, 93 NY2d 361, a case involving the denial of a teaching license to an individual who had been convicted of a crime, the Court of Appeals said that the Correction Law protects individuals from unlawful discrimination based on his or her conviction of a crime and an applicant for a license or employment may not be automatically disqualified because of his or her previous conviction of a crime.  

Finding that the New York City Board of Education properly considered all eight factors set out in the Article 23-A of the New York State Correction Law when it refused to grant a teaching license to a person with a criminal record, the Court of Appeals explained that Article 23-A sets out a broad general rule that employers and public agencies cannot deny employment or license to an applicant solely based on the applicant’s status as an ex-offender. Rather it must measure its decision against the eight criteria set out in §753 of the Correction Law set out below,

1. The public policy of this state, as expressed in this act, is to encourage the licensure and employment of persons previously convicted of one or more criminal offenses;

2. The specific duties and responsibilities necessarily related to the license or employment sought;

3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities;

4. The time that has elapsed since the occurrence of the criminal offense or offenses.

5. The age of the person at the time of occurrence of the criminal offense or offenses;

6. The seriousness of the offense or offenses;

7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct; and

8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.”

Read about New York Community Service Society by clicking Article 78 Civil Service Job disqualification case.

Settlement agreements

Settlement agreements

George W. & Dacie Clements Agric. Research Institute, Inc. v Green, 2015 NY Slip Op 06399, Appellate Division, Third Department

In its review of a Supreme Court ruling in a real property action in which one of the parties sought summary judgment to enforce a “settlement agreement,” the Appellate Division set out a number of guidelines that could lead to effecting a binding settlement agreement. 

These guidelines may prove helpful in the context of a “settlement agreement” resolving an employee disciplinary action.

1. An out-of-court settlement agreement "is not binding upon a party unless it is in a writing subscribed by [that party] or [that party's] attorney;"

2. Writings between parties to an action or proceeding that discuss the possibility of settlement will be considered to constitute a binding agreement if "the settlement agreement was adequately described in [such] writings, namely, the agreement was clear, the product of mutual accord and contained all material terms;" and

3. Settlement-related writings may be deemed to have contained sufficiently detailed terms to give rise to a binding agreement when, for example, these writings explicitly incorporate the terms of other documents prepared in anticipation of settlement.

In contrast, said the court, settlement-related writings will not be found to have created a binding agreement if they expressly anticipate a subsequent writing that is to officially memorialize the existence of a settlement agreement and set forth all of its material terms or where the terms of the settlement agreed upon by the employee organization on behalf of an employee and the appointing authority’s representative is subject to the approval of the appointing authority.

In Alfred v Safir, 283 AD2d 280, the disciplinary penalty to be imposed agreed upon by the employee and employer’s representative was made part of the record by the disciplinary hearing officer.

New York City Police Commissioner Howard Safir suspended Gary Alfred for 30 days without pay and placed him on disciplinary probation for one year following the "settlement of disciplinary charges" filed against Alfred. Alfred objected, contending that he, the department’s representative at the disciplinary hearing and the disciplinary hearing officer had all agreed to the imposition of a different disciplinary penalty.

The Appellate Division unanimously affirmed Safir’s decision, commenting that “[t]he various determinations and penalties agreed to by [Alfred] and [the department’s] advocate and/or hearing officer were not binding” on Safir, the appointing authority, citing Silverman v McGuire, 51 NY2d 228.

This decision suggests that where the appointing authority makes the final disciplinary determination, it would be prudent for:

1. The employer’s representative to insist that any settlement of a disciplinary action include a statement to the effect that the settlement is subject to the approval of the appointing authority; and

2. The employee or the employee’s representative to insist on a provision spelling out what is to happen if the appointing officer does not agree to impose the penalty set out in the settlement proposal.

Another issue that may arise as the result of efforts by the employer and the employee organization to settle a disciplinary action: the employee organization later refuses to sign the disciplinary settlement agreement. Would the union's refusal to sign the agreement constitute a failure to bargain in good faith? PERB considered this question in Town of Henrietta and CWA, 23 PERB 3004. 

The employer filed a complaint with PERB alleging the union violated its duty to negotiate in good faith when it refused to sign the disciplinary settlement agreement that the employer contended was required by §204.3 of the Civil Service Law [the Taylor Law].

PERB found an oral agreement had been reached. However, the only issue for it to decide, said PERB, was “whether a Taylor Law duty exists to execute the disciplinary settlement agreement reached.”

PERB ruled that “the duty to execute a written agreement created by §204.3 is most appropriately construed as applying to collectively negotiated agreements and not to settlement agreements reached pursuant to the grievance procedure contained in such a collective bargaining agreement.”

As to the contents of a settlement agreement, the agreement might set out provisions that could affect the employer's ability to file disciplinary charges against the employee in the future. 

For example, in Matter of the Board of Education of the Unadilla Valley Central School District, 97 AD3d 1078, the Appellate Division held that a disciplinary settlement agreement that provided that the appointing authority waived its right to bring certain charges against an individual barred it from subsequently bring charges based on the same event[s] or omission[s] while in Shuler v State of New York, 48 AD3d 384, the court sustained a provision in a disciplinary settlement agreement that preserved certain allegations of employee misconduct for subsequent action.

The Research Institute decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06399.htm

Alternative to personal service of a petition upon a respondent in an appeal to the Commissioner of Education may be authorized

Alternative to personal service of a petition upon a respondent in an appeal to the Commissioner of Education may be authorized

Decisions of the Commissioner, Decision #16798

One of the objections raised by the School District in this appeal submitted by Stan J. Ercolano to the Commissioner of Education challenging the election of certain members of the School Board to the Board was that the petition was served on one of the named respondents [Pierce] by mail rather than by personal service. 

Addressing this particular objection included among a number of procedural challenges advance by School Board in its efforts to have Ercolano’s appeal dismissed, the Commissioner noted that §275.8(d) of the Commissioner’s regulations provides, in pertinent part. That “If an appeal involves the validity of a school district meeting or election ... a copy of the petition must be served upon the trustee or board of trustees or board of education as the case may be, and upon each person whose right to hold office is disputed and such person must be joined as a respondent.” (emphasis in the Decision).

However, said the Commissioner, although §275.8(a) of the Commissioner’s regulations generally requires that the petition be personally served upon each named respondent,  §275.8(a) provides, in pertinent part that, “if a named respondent cannot be found upon diligent search, ... [service may be made] as otherwise directed by the commissioner.” 

The decision indicates that Ercolano had sent a fax to Education Department’s Office of Counsel requesting permission to effect alternate service by mail upon Pierce after he had “unsuccessfully attempting to effect personal service” upon Pierce at various different times and on different days.  The Office of Counsel sent Ercolano a letter granting him permission to serve Pierce by regular and certified mail, return receipt requested.  Ercolano then effected service, as approved, that same day.

 

The Commissioner said that it appears that Pierce “chose not to pick up the copy of the pleadings sent to her by certified mail” and found that service upon Pierce “was proper and made in compliance with the alternative service petitioner was authorized to use pursuant to §275.8(a) of the Commissioner’s regulations.”

The School District also argue that Ercolano “should have continued to attempt personal service” on Pierce even after the pleadings had been mailed to her by Ercolano as he was directed to do in Office of Councel’s approval letter.  However, affidavits of service submitted by Ercolano stated that an additional attempt to personally serve Pierce was made on the evening of June 16, 2011, but was unsuccessful.

The Commissioner ruled that in this instance “service was proper and [declined] to dismiss the appeal for failure to properly serve Pierce … and join her as a necessary party. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16798

Dismissed probationary teacher seeks damages for the employer’s alleged fraudulent inducement and breach of contract and for the union’s alleged breach of its duty of fair representation

Dismissed probationary teacher seeks damages for the employer’s alleged fraudulent inducement and breach of contract and for the union’s alleged breach of its duty of fair representation

2015 NY Slip Op 06331, Appellate Division, Second Department

The plaintiff [Probationer] commenced an action against the School District and certain named individuals [district defendants] and against the school district’s Teachers Association and New York State United Teachers [union defendants] .after her employment as a probationary teacher was terminated. Probationer’s amended complaint asserted causes of action to recover damages for the district defendant' alleged fraudulent inducement and breach of contract and a cause of action to recover damages for the union defendants' alleged breach of the duty of fair representation.

The Appellate Division ruled that Supreme Court properly granted the district defendants' cross motion to dismiss the amended complaint insofar as asserted against them. The court explained that a teacher's employment may be terminated during his or her probationary period for any reason, or no reason at all, unless the teacher establishes that his or her employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription.

Here, said the court, the amended complaint failed to allege that Probationer’s employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription. As Probationer was an at-will employee, whose employment could be terminated at any time during the probationary period, the Appellate Division said that “there can be no action alleging breach of contract, citing Havilland v Yonkers Public Schools, 21 AD3d 527.

In addition, the court commented that the amended complaint failed to establish that the Probationer reasonably relied upon the district defendants' alleged misrepresentations, which is an element necessary to the recovery of damages under a theory of fraudulent inducement.

Accordingly, the Appellate Division concluded that the amended complaint failed to state a cause of action against the district defendants.

Turning Supreme Court’s dismissal of the amended complaint insofar as asserted against the union defendants, the Appellate Division said that “Because the union defendants were unincorporated associations, and because the amended complaint failed to allege that the conduct complained of on the part of the union defendants was authorized or ratified by every one of their respective members, the amended complaint failed to state a cause of action against the union defendants.”

In Martin v Curran, 303 NY 276, the Court of Appeals held that a voluntary unincorporated association "has no existence independent of its members" and that "for better or worse, wisely or otherwise, the Legislature has limited . . . suits against association officers, whether for breaches of agreements or for tortious wrongs, to cases where the individual liability of every single member can be alleged and proven" it vacated the lower courts ruling. 

Although certain exceptions have been carved out from this general rule, the court said that one commentator has observed that, “although a claim of breach of the duty of fair representation may be brought either in court or before an appropriate agency (such as the Public Employment Relations Board), the reality in light of Martin is that most such claims must be brought before an agency to survive early dismissal," citing Rubenstein, Union Immunity From Suit in New York, 2 NYU Journal of Law & Business 641.

An abstract of the Rubenstein article is posted on the Internet at:

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=919143

The Appellate Division’s decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06331.htm

Justia ranks the popularity of 6,208 Blawgs in 74 subcategories

Justia ranks the popularity of 6,208 Blawgs in 74 subcategories

Source: http://blawgsearch.justia.com/topblawgs

Listed below are “the top 25 Blawgs” of the 6208 Law Blogs  reported by Justia for the week ending July 31, 2015. Blawgs are ranked based on the number of visits to the Blawg from the BlawgSearch search engine and directory listing pages. Click on the highlighted text in color to access the Blawg. 

TalkLeft: The Politics of Crime [Feed]

Provides liberal coverage of crime-related political and injustice news.

Last Updated: July 31, 2015 - Rank this Week: 2

http://www.talkleft.com/

Mortgage Fraud Blog [Feed]

Covers mortgage fraud information, fraud schemes and indictments. By Rachel Dollar.

Last Updated: July 31, 2015 - Rank this Week: 3

http://mortgagefraudblog.com/

Current Awareness Weblog [Feed]

Covers England and Walescase law, legislation, and legal news. From the Inner Temple Library.

Last Updated: July 31, 2015 - Rank this Week: 4

http://www.innertemplelibrary.com/

DealBook [Feed]

Covers mergers and acquisitions, investment banking, IPOs, private equity, hedge funds, venture capital and law. From The New York Times.

Last Updated: July 31, 2015 - Rank this Week: 5

http://dealbook.nytimes.com/

Sex Offender Issues [Feed]

Covers sex offender laws and cases.

Last Updated: July 5, 2015 - Rank this Week: 6

http://sexoffenderissues.blogspot.com/

Above the Law [Feed]

A legal tabloid that provides news and gossip about the profession's colorful personalities and powerful institutions, as well as original commentary on breaking legal developments.

Last Updated: July 31, 2015 - Rank this Week: 7

http://abovethelaw.com/

Real Estate Law Blog [Feed]

Includes news, cases and commentary on real estate and property law in New Yorkand nationwide. By Newman FerraraLLP.

Last Updated: July 31, 2015 - Rank this Week: 8

http://www.nyrealestatelawblog.com/

The Volokh Conspiracy [Feed]

By Eugene Volokh, Dale Carpenter, David Kopel, David Bernstein, David Post, Erik Jaffe, Ilya Somin, Jim Lindgren, Jonathan Adler, Kevan Choset, Orin Kerr, Randy Barnett, Russell Korobkin, Sasha Volokh, Stuart Benjamin, Todd Zywicki & Tyler Cowen.

Last Updated: July 31, 2015 - Rank this Week: 9

http://www.volokh.com/

SCOTUSblog[Feed]

Covers the Supreme Court of the United States. By Bloomberg Law.

Last Updated: July 30, 2015 - Rank this Week: 10

http://www.scotusblog.com/

JURIST - Paper Chase [Feed]

Covers legal news. From the University of Pittsburgh School of Law.

Last Updated: July 31, 2015 - Rank this Week: 11

http://www.jurist.org/paperchase/

Threat Level [Feed]

Covers privacy, crime and security online. From Wired News.

Last Updated: July 31, 2015 - Rank this Week: 12

http://www.wired.com/threatlevel

Discourse.net[Feed]

By University of Miamilaw professor Michael Froomkin. Covers civil liberties, the Internet, Guantanamo, Iraqattrocities, politics and more.

Last Updated: July 29, 2015 - Rank this Week: 13

http://www.discourse.net/

Real Lawyers Have Blogs [Feed]

Blogging resources, ideas and news for law firm bloggers. By Kevin O'Keefe.

Last Updated: July 31, 2015 - Rank this Week: 14

http://kevin.lexblog.com/

DNT - O Direito e as novas tecnologias [Feed]

Covers Brazilian IT law. In Portuguese. By Alexandre Atheniense.

Last Updated: January 25, 2015 - Rank this Week: 15

http://www.dnt.adv.br

State Law Library of Montana [Feed]

Features notices of new Opinions and Orders from the Montana Supreme Court, library announcements, research tips, and Montanalegal news.

Last Updated: July 30, 2015 - Rank this Week: 16

http://mtlawlibrary.wordpress.com

beSpacific[Feed]

Features law, marketing, Internet legal resources and technology news. By Sabrina I. Pacifici.

Last Updated: July 31, 2015 - Rank this Week: 17

http://www.bespacific.com/

The Am Law Daily [Feed]

Covers legal business news, analysis and intelligence. From The American Lawyer.

Last Updated: May 4, 2012 - Rank this Week: 18

http://amlawdaily.typepad.com/amlawdaily/

New York Public Personnel Law [Feed]

Provides summary and commentary on selected court and administrative decisions and related matters affecting public employers and employees in New York State. By Harvey Randall, Esq.

Last Updated: July 31, 2015 - Rank this Week: 19

http://publicpersonnellaw.blogspot.com/

Legal Scholarship Blog [Feed]

Features law-related calls for papers, conferences and workshops. From the Ohio State Moritz College of Law, University of Georgia School of Law, University of Pittsburgh School of Law and University of Washington School of Law.

Last Updated: July 19, 2015 - Rank this Week: 20

http://legalscholarshipblog.com

Federal Criminal Defense Blog [Feed]

Covers federal criminal law topics such as identity theft, capital punishment, drug enforcement, environmental crimes, immigration, and military law. By Tom Withers.

Last Updated: July 2, 2014 - Rank this Week: 21

http://www.federalcriminaldefenseblog.com/

Sex Offender Research by A Voice of Reason [Feed]

Covers research, studies, and court cases related to sex offender issues.

Last Updated: July 30, 2015 - Rank this Week: 22

http://sexoffenderresearch.blogspot.com/

Overlawyered[Feed]

Chronicles the high cost of our legal system.

Last Updated: July 31, 2015 - Rank this Week: 23

http://overlawyered.com/

Marler Blog [Feed]

Covers food poisoning law. By Bill Marler.

Last Updated: July 31, 2015 - Rank this Week: 24

http://www.marlerblog.com/

The FRAUDfiles Blog [Feed]

Covers fraud and forensic accounting, including tax fraud and the Sarbanes-Oxley Act. By Tracy Coenen.

Last Updated: July 22, 2015 - Rank this Week: 25

http://www.sequenceinc.com/fraudfiles

 

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 1, 2015

Selected reports and information issued by New York State's Comptroller Thomas P. DiNapoli issued during the week ending August 1, 2015

[Click on text highlighted in colorto access the full report]

Next in line for Michel-Lama Apartments were skipped over
Applicants who were next in line for coveted Mitchell-Lama apartments were skipped over for people farther down the waiting lists because of lax oversight and poor controls, an audit by New York State Comptroller Thomas P. DiNapoli determined. The audit released uncovered other lapses, including managing agents for Mitchell-Lama buildings who let residents have apartments without the required approval from the New York City Department of Housing Preservation and Development as well as co-op owners renting out their apartments on Airbnb. http://www.osc.state.ny.us/audits/allaudits/093015/14n3.pdf

Vendor boosted fuel costs during Superstorm Sandy recovery
In the emergency response to Superstorm Sandy, the state Division of Military and Naval Affairs used a catering company which tacked on $20,000 in excessive costs, according to a report released by State Comptroller Thomas P. DiNapoli. http://osc.state.ny.us/audits/allaudits/bseaudits/bse20150729.pdf

New Jersey woman guilty of the theft of more $162,000 from the New York State Employees’ Retirement System
New York State Comptroller Thomas DiNapoli and Attorney General Eric T. Schneiderman announced the guilty plea of Linda Miller, 57, of Englewood, New Jersey, over the theft of more than $162,000 in pension benefits from the New York State and Local Employees Retirement System. The defendant, Linda Miller, continued to cash her mother Josephine Miller’s retirement benefits until 2012, despite her mother’s death in 2006. Linda Miller pleaded guilty to 3rd degree Grand Larceny, a class D felony, in Albany County Court before the Honorable Thomas A. Breslin

. http://www.osc.state.ny.us/press/releases/july15/072915b.htm?utm_source=weeklynews20150802&utm_medium=email&utm_campaign=72915brelease

State Contract and payment actions during the month of June 2015

State Comptroller Thomas P. DiNapoli announced his office approved 1,887 contracts valued at $12.3 billion and approved nearly 1.3 million payments worth approximately $11.8 billion in June. His office also rejected 170 contracts and related transactions valued at $356 million and more than 2,000 payments valued at more than $7.3 million due to fraud, waste or other improprieties. http://www.osc.state.ny.us/press/releases/july15/072815.htm?utm_source=weeklynews220150802&utm_medium=email&utm_campaign=072815arelease

DiNapoli released the audits of the following jurisdictions:

Village of Fultonville

http://www.osc.state.ny.us/localgov/audits/villages/2015/fultonville.pdf?utm_source=weeklynews20150802&utm_medium=email&utm_campaign=072215brelease

Town of Livonia

http://www.osc.state.ny.us/localgov/audits/towns/2015/livoniajc.pdf?utm_source=weeklynews20150802&utm_medium=email&utm_campaign=072215brelease

Seymour Public Library District http://www.osc.state.ny.us/localgov/audits/libraries/2015/seymour.pdf?utm_source=weeklynews20150802&utm_medium=email&utm_campaign=072215brelease

Rules protect teachers from being deprived of seniority credit in a tenure area if they unwittingly accept, and serve in, out-of-area assignments

Rules protect teachers from being deprived of seniority credit in a tenure area if they unwittingly accept, and serve in, out-of-area assignments

Cronk v King, 2015 NY Slip Op 06396, Appellate Division, Third Department

In this Article 78 action, Supreme Court granted Jennifer Cronk’s petition to annul the determination of Commissioner of Education dismissing Cronk's appeal of a determination by the Valhalla Union Free School District terminating her employment based on its finding that she was "the least senior" teacher in her tenure area.

Cronk is a teacher certified to teach English to students in grades 7-12. In 2000, Valhalla appointed Cronk to a three-year probationary position in the English 7-12 tenure area and assigned her to teach computer applications courses. In 2003 Valhalla granted Cronk tenure in the English 7-12 tenure area. 

Valhalla abolished two positions in the English 7-12 tenure area at the end of the 2010-2011 academic year and determined that Cronk was the “least senior” teacher in the English 7-12 tenure area because she had earned no seniority for the purposes of layoff as she taught computer classes rather than English classes. Accordingly Valhalla terminated Cronk's employment and [presumably] placed her name on a preferred list.

Cronk appealed Valhalla’s decision to the Commissioner of Education arguing, among other things, that she should not have been terminated due to lack of seniority because, regardless of her specific teaching assignment, certain protections afforded to educators by 8 NYCRR subpart 30-1 of the Rules of the Board of Regents protected her seniority in the English 7-12 tenure area.

Ultimately, the Commissioner dismissed Cronk's appeal on the ground that she failed to join necessary parties. The Commissioner further stated that Cronk's appeal would, in any event, have been dismissed on the merits because he found that the “regulatory protections” Cronk relied upon were inapplicable.

Upon review, Supreme Court granted Cronk’s petition, annulled the Commissioner's determination and remitted the matter to Valhalla to determine whether Cronk's 11 years of accrued seniority entitle her to reinstatement. Valhalla appealed Supreme Court’s ruling but the Appellate Division sustained the lower court’s decision..

As to Valhalla’s argument that Supreme Court erred in its determination that the Commissioner improperly dismissed Cronk's appeal for failing to obtain "leave or direction" to join necessary parties, the Appellate Division said that after Cronk filed her original petition with the Commissioner, it became clear that the jobs of two other teachers who were not named as respondents could be affected if Cronk were reinstated.

Cronk then submitted a letter to the Commissioner that clearly requested permission to amend her petition for the express purpose of joining the two teachers as necessary parties and enclosed along with it a copy of the proposed pleading, with proof of service on all parties. Subsequently Cronk received a response from the State Education Department stating that "the amended petition has been accepted for consideration." In view of this, said the Appellate Division, the Commissioner's determination that Cronk “neither sought nor received permission to join any additional parties" lacks a rational basis and, thus, was properly annulled by Supreme Court.

As to Valhalla’s contention that Cronk failed to exhaust her administrative remedies before filing her CPLR Article 78 proceeding by not first petitioning the Commissioner to reopen her appeal based upon a mistake of fact as to whether she had sought permission to join necessary parties, the Appellate Division concluded that seeking to have the Commissioner reopen her appeal would have been futile inasmuch as the Commissioner held that her petition would have been dismissed on the merits even if it had not been dismissed for failure to join necessary parties.

Further, said the court, “Even if the Commissioner was operating under a misapprehension of the facts as to whether [Cronk] had sought and received permission to join necessary parties, neither party argues that his explanation as to why [Cronk’s] appeal would fail on the merits was subject to any such misapprehension.”

The Appellate Division then addressed “the merits,” and citing Education Law §3013[2], said that whenever a board of education abolishes a teaching position, "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued." The Rules  define "[s]eniority" as an educator's "length of service in a designated tenure area [that] shall[,] during each term for which seniority credit is sought, have constituted a substantial portion of the time of the professional educator," a "substantial portion of . . . time" being defined as "40[%] or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."

Cronk, said the court, conceded that although Valhalla awarded her tenure in the English 7-12 tenure area, she never spent 40% or more of her time teaching English classes. Rather she argued that her seniority was preserved by another of the Rules, 8 NYCRR 30-1.9[c], which states that "[n]o professional educator, whether on tenure or in probationary status, may be assigned to devote a substantial portion of his [or her] time in a tenure area other than that in which he [or she] has acquired tenure or is in probationary status, without his [or her] prior written consent."

The Appellate Division said that the evidence demonstrated that Cronk was a professional educator and Valhallaassigned her “exclusively to teach computer classes,” which the Valhalla admits was an assignment outside of her probationary and acquired English 7-12 tenure area. Significantly, the court said that the record was devoid of evidence that Cronk was aware that she was given an out-of-area assignment or that she consented to such an assignment in writing.

In contrast, the Commissioner determined that the protections of 8 NYCRR 30-1.9(c) did not apply to Cronk because, "[f]rom the inception of her employment[,] . . . petitioner never devoted a substantial portion of her time within the English 7-12 tenure area."

The Appellate Division said that “Even according deference to the Commissioner's construction and interpretation of the regulations, as we must," it could not agree that this interpretation is rational or reasonable,” explaining that “Nowhere in the language of 8 NYCRR 30-1.9 (c) is there a requirement that professional educators must first spend some of their time teaching within their probationary or acquired tenure areas before earning the right to consent to an out-of-area assignment.”

As the Commissioner's interpretation reads this nonexistent requirement into the provision, the Appellate Division said it viewed it as "an artificial or forced construction," Further, said the court, the Commissioner's interpretation “also runs contrary to the underlying purposes of the Rules governing teacher tenure and seniority credit,” citing the Court of Appeals' ruling in Kaufman v Fallsburg Cent. School Dist. Bd. of Educ., 91 NY2d 57. In Kaufman it was noted that 8 NYCRR former 30.9 (b) (now 8 NYCRR 30-1.9 [c]) "protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments."*

As the "twofold protective purpose" of 8 NYCRR 30-1.9 (c) is  [1] to protect teachers from unknowing, involuntary out-of-area assignments and [2] allowing for the accrual of seniority credit in their original tenure area if they should accept such an assignment  the Appellate Division held that these protections are defeated if the provision is construed in such a way as "to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area." Accordingly, the Appellate Division concluded that the Commissioner's interpretation of 8 NYCRR 30-1.9(c) defeated these protections and ruled that Supreme Court properly annulled the Commissioner's confirmation of Cronk's termination.

As noted above, Supreme Court's order had remitted the matter to Valhalla to determine whether Cronk's 11 years of accrued seniority entitle her to reinstatement to her position, presumably with back salary and benefits. In Joan Carey v Rockville Centre CSD, Comm. of Ed. Decision 12,678, the Commissioner ruled that the teacher’s seniority had to be recalculated and if it was found that she was not the least senior teacher in the tenure area at the time of the layoff, she was to be reinstated with back salary and benefits.

* In Speichler v. Board of Co-op. Educational Services, 90 NY2d 110, the court held that Deer Park violated the educator’s rights “as established by the statutory scheme instituted in this State which, [educator] correctly notes, is to be read broadly in favor of the teacher.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06396.htm

_____________________

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations and summarizing selected court and administrative decisions involving layoff issues. For more information click on http://nylayoff.blogspot.com/

_____________________

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Summaries of recent decisions posted on the Internet by the New York CityOffice of Administrative Trials and Hearings [OATH]

Source: NYC Office of Administrative Trials and Hearings

Click on text highlighted in color to access the text of the decision.

Use of excessive force against a juvenile resident at a detention center

Administrative Law Judge [ALJ] Tynia D. Richard sustained charges that a counselor at a juvenile detention center used excessive force against a resident and made a false report.

A video showed the counselor initiate force against the resident who was not complying with commands but was not physically resisting. It also showed the counselor put the resident in a bear hug, push him over a group of chairs, and choke him; the same video later showed him chase the resident and throw him to the floor. Others had to intervene in both instances to get counselor away from the juvenile.

The director and the head of training testified these acts were serious violations of agency guidelines. The counselor’s report of the incident was false and misleading, having omitted material facts.

The ALJ recommended the counselor be terminated from his position.

The Commissioner adopted the ALJ’s factual findings but did not impose a penalty, as the counselor had resigned from his position with Children’s Services.*   Admin. For Children Services v. Silva, OATH Index No. 1275/15.

Failure to report to work as scheduled  

A corrections captain was charged with filing an untimely report and with being AWOL for 5 days. ALJ Alessandra F. Zorgniotti sustained the charges.

The captain had hurt his back while on vacation and converted his vacation days to sick days. While still on vacation, he requested that his vacation be extended by the number of days he was on sick leave. The captain did not report to work as scheduled and failed to verify whether his request to extend his vacation had been granted.

ALJ Alessandra F. Zorgniotti recommended 20-day suspension for the AWOL charges and a reprimand for submitting a late report.  Dep't of Correction v. Ramos, OATH Index No. 1903/15.

Testing positive for cocaine

A sanitation worker admitted that he had tested positive for cocaine and offered evidence in mitigation, including character evidence from supervisors. ALJ Kevin F. Casey recommended termination of employment, but urged the Department to consider alternative penalties such as drug and alcohol testing for the remainder of the worker's career.   Dep't of Sanitation v. Anonymous, OATH Index No. 1821/15.

Failure to meet deadlines

In a Loft Board proceeding, ALJ John B. Spooner formally admonished an attorney who failed to meet ordered deadlines and refused to reply to repeated discovery requests. The attorney did not receive a more severe sanction because he ultimately complied with requests and conducted himself professionally at trial.  Matter of Stone, OATH Index No. 1945/14.

* With respect to the State as the employer, 4 NYCRR 5.3(b), in pertinent part, provides “… when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.”

 ____________________

A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

 ____________________