Failing to follow the established procedures for conducting annual employee performance rating undermines the integrity and fairness of the process

Failing to follow the established procedures for conducting annual employee  performance rating undermines the integrity and fairness of the process

Murray v Board of Educ. of the City School Dist. of the City of N.Y., 2015 NY Slip Op 06866, Appellate Division, First Department

Juanita Murray, a school social worker employed by the New York City Department of Education [DOE] petitioned Supreme Court to annul the unsatisfactory performance rating and the denial of her appeal of that rating for the 2010-2011 school year. Supreme Court granted DOE’s motion to dismiss Murraypetition and Murrayappealed.

The Appellate Division unanimously reversed the lower court’s decision, on the law, granted Murray’s petition to the extent of annulling the U-rating.

Murray’s principal, Robert Mercedes, had rated her unsatisfactory in seven categories in her 2010-2011 Annual Professional Performance Review:  attendance and punctuality; professional attitude and professional growth; resourcefulness and initiative, where he wrote that she lacked initiative and growth; analysis and interpretation of assessment data; translates assessment findings into educationally relevant goals and objective; appropriateness and flexibility of counseling approaches; and submitting assessment reports.

Noting the Murray, as was her right under the parties' collective bargaining agreement, appealed her U-rating to the Chancellor of the DOE the court said that although both Murray and Mercedes testified at the hearing, no transcript was included in the record. The court said the DOE respondents “rely on the report of the hearing issued by the Chancellor's Committee, which described the parties' arguments, made findings of fact, and recommended that the U-rating be sustained.”

Having exhausted her administrative remedies, Murrayfiled a timely CPLR Article 78 petition challenging the U-rating given her in its entirety, contending that DOE had not adhered to its own procedures nor to the relevant procedures set out in the relevant collective bargaining agreement. On this point the Appellate Division, citing DOE Special Circular No. 45, observed that “as a pedagogical employee, [Murray] was to be given at least one full period of review during the school year by her principal, followed by a meeting with the principal to discuss her strengths and any areas in need of improvement. Additionally, as a social worker employed at a school, she should have been evaluated by the school principal in consultation with the in-discipline supervisor, in accordance with the collective bargaining agreement.”

Also of “great concern” the Appellate Division was the fact that an in-discipline supervisor did not critique Murray's work as required by the collective bargaining agreement and in the absence of a transcript of the Chancellor's Committee hearing, it only had the statements Murray’s made in her underlying papers and again on appeal, that Principal Mercedes admitted to not having the experience or qualifications to evaluate her without input from the in-discipline supervisor prior to asking Murray for certain documents. Further, the court said that there was no evidence that Murraywas notified before the end of the school year in June 2011 that her work was considered unsatisfactory.

The court said that “The record is clear that [Murray] was deprived of her substantial rights in the review process culminating in her U-rating when measured against the methodology followed in other such case, citing Cohn v Board of Education, 102 AD3d 586. The Appellate Division found that “the instant record does not show that [Murray] was provided with support, or formal constructive criticism, of any kind.” Indeed, the court said that the DOE respondents “have not demonstrated by competent proof that they gave [Murray], who was tenured, any feedback of any kind.”

In the words of the Appellate Division, “… the complete absence of constructive criticism and warnings during the entire school year, compounded by the lack of a formal observation and accompanying feedback during the school year, ‘undermined the integrity and fairness of the process’." 

Accordingly, the Appellate Division reversed the ruling of the Supreme Court and granted Murray’s petition to the extent of annulling the U-rating.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06866.htm

A political subdivision of the State may provide for the defense and indemnification of its officers and employees sued in state or federal court involving the performance of official duties

A political subdivision of the State may provide for the defense and indemnification of its officers and employees sued in state or federal court involving the performance of official duties

Bonilla v Town of Hempstead, 2015 NY Slip Op 06916, Appellate Division, Second Department

Former Hempstead Town Clerk Mark A. Bonilla initiated an Article 78 action seeking a court order compelling the  Town of Hempstead to provide him with a defense and indemnification in an action entitled Smith v Town of Hempstead, CV-134985, pending in the United States District Court for the Eastern District of New York as mandated by the Town Code.

The relevant section of the Town Code, §11-2(A), provides as follows:

The town shall provide for the defense of an employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties or which is brought to enforce a provision of Section 1981 or 1983 of Title 42 of the United States Code; provided, however, that the duty of the town to defend or save harmless shall be conditioned upon: 

1. Delivery to the Town Attorney at his offices by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he is served with such document. Such delivery shall be deemed a request by the employee that the town provide for his defense pursuant to this chapter 

2. The full cooperation of the employee in the defense of such action or proceeding and in the defense of any action or proceeding against the town based upon the same act or omission and in the prosecution of any appeal.

Supreme Court granted Bonella’s petition and the Town appealed.

The Appellate Division affirmed the Supreme Court’s ruling, noting that §11-2(A) of the Code of the Town of Hempstead provides, in relevant part, that the Town "shall provide for the defense of an employee [or former employee] in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is [alleged] to have occurred while the employee was acting within the scope of his [or her] public employment or duties or which is brought to enforce a provision of [42 USC §1981 or 42 USC §1983]."* 

As the underlying federal complaint seeks to recover damages for civil rights violations pursuant to 42 USC §1983 and neither the parties nor the Supreme Court addressed the provision of Town Code §11-2(A) directing the Town to defend an employee in any action seeking to enforce a provision of 42 USC §1983, the Appellate Division focused “only on the question of whether the federal complaint sufficiently alleged that the harassment occurred while [Bonilla] was acting in the scope of his employment.”

The court explained that the duty to defend an employee or former employee is broader than the duty to indemnify and it is triggered if the civil complaint includes allegations that the employee was acting within the scope of his or her employment at the time of the alleged wrongdoing. In this instance the federal complaint included allegations that Bonilla committed act constituting sexual harassment while acting in the scope of his employment as the Town Clerk, that the Town facilitated a hostile work environment, and that the Town failed to prevent workplace harassment.

Supreme Court determined that the allegations in the federal complaint were sufficient to trigger the Town's broad duty to defend Bonilla notwithstanding the Town’s argument to the contrary and the Appellate Division sustained the Supreme Court’s ruling. Thus, said the court, Supreme Court properly granted the petition to the extent of directing the Town to provide a defense for Bonilla in the federal action.

* With the exception of the provision regarding actions brought to enforce a provision of 42 USC §1981 or 42 USC §1983, the language contained in Town Code §11-2(A) is similar to language set out in Public Officers Law §18 and was enacted as Local Law No. 2-1980, adopted January 8, 1980, effective January 11, 1980.  In contrast to §18 of the Public Officers Law, §17.2(a) of the Public Officers Law provides for “Defense and indemnification of state officers and employees” in civil and federal actions, including actions brought pursuant to 42 USC §1981 or 42 USC §1983.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06916.htm

An individual must have standing to bring a proceeding pursuant to Education Law §306

An individual must have standing to bring a proceeding pursuant to Education Law §306

Matter of Luciano, Decisions of the Commissioner of Education, Decision No. 16,828

The critical issue in this appeal concerned the residence of the individual filing a  proceeding pursuant to §306 of the Education Law as, in the words of the Commissioner of Education, “a non-resident does not have standing to bring a proceeding pursuant to Education Law §306 to remove a school official in a district in which he or she does not reside.”

Antonio Luciano file an application seeking to have the Commissioner remove certain members of the school board from their respective positions. The Commissioner found that Luciano lacked standing to file such an application.

The Commissioner explained that an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights and only persons who are directly affected by the action being appealed have standing to bring an appeal.

The decision states that Luciano’s application failed to allege that he was a resident of the district but merely stated that he is “a taxpayer and resident of Rockland County, and a citizen of the State of New York” and that his child “formerly attended schools” within the district. The school district raised the issue of Luciano’s “non-resident” status as an affirmative defense, contending that Luciano application must be dismissed for lack of standing.  Significantly, Luciano failed to file a reply refuting the school district’s affirmative defenses.

On this point the Commissioner noted that §275.14 of the Commissioner’s regulations states that [1] a petitioner shall reply to each affirmative defense; and [2] the result of a petitioner’s failure to do so is that the facts alleged are deemed to be true. However, said the Commissioner, the Commissioner was not required to accept a respondents’ legal conclusions regarding the affirmative defenses; and a legal analysis of the admitted facts with respect to the affirmative defenses must be performed.

In his legal analysis of the matter, the Commissioner found that when Luciano filed his memorandum of law, he also requested permission to file an affirmation by counsel which included new documentary evidence in further support of his application.  One of the documents was an affidavit by Luciano in which he claims residency within the district. The school district, however, objected to the submission of this additional material arguing that Luciano should not be permitted to bolster his defective application “this late in the process.”

The Commissioner agreed, ruling that the “procedural rules set forth an orderly process for framing the relevant issues” and the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer. Further, a reply is to be served within 10 days after service of the answer to which it responds.

The Commissioner found that while Luciano was given an opportunity to timely file a reply containing any exhibits or evidence required to refute respondents’ affirmative defenses, he elected not to do so.  Instead, Luciano waited until he filed his memorandum of law to respond to the affirmative defenses by requesting permission to file additional papers, including his affidavit.  

  

The Commissioner noted that [1] any such additional affidavits, exhibits and other supporting papers “may only be submitted with the prior permission of the Commissioner,” citing 8 NYCRR §276.5 and [2] although this provision permits the submission of additional evidence, “it cannot be used to buttress allegations in the petition.”

The Commissioner found that Luciano offered no explanation or excuse for his delay in filing the additional papers; that his affidavit was executed and dated “an entire month before it was even submitted for consideration.” Because Luciano did not demonstrate good cause for his delay in submitting the additional documentation, the Commissioner ruled that “it is not accepted for consideration.”

In any event, said the Commissioner, “Even if I were to accept the additional papers, [Luciano’s] affidavit fails to prove that he is a district resident with standing to maintain this proceeding. Although his residency is a disputed issue, the affidavit is devoid of any specificity or particulars whatsoever. In the affidavit, [Luciano] offers blanket statements that he has been a resident of the district for 21 years and pays taxes in the district.”

As Luciano failed to provide his address or any documentary evidence establishing his residency within the district, other than his own conclusory statement, and without any evidence of his residence, the Commissioner ruled that his application “must be dismissed for lack of standing.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16828

Audits issued by the State Comptroller issued during the week ending September 12, 2015

Audits issued by the State Comptroller issued during the week ending September 12, 2015

Source: Office of the State Comptroller

Click on the text in color to access the Comptroller’s report.

On September 25, 2016, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued. Click on the text in color to access the Comptroller’s report.

State Department of Education: Compliance with the Reimbursable Cost Manual

The Sunshine Developmental School provides special education programs for about 600 children between the ages of three and five years in Brooklyn, Queens and the Bronx. Sunshine’s special education programs are funded by the New York City Department of Education (DoE), as well as other school districts and counties whose children are served by its special education programs. The DoE and other localities reimburse via tuition payments based on reimbursement rates set by SED. Auditors found $1,776,434 in unsupported or inappropriate costs charged to the programs audited. The ineligible charges by Sunshine include personal service costs of $1,392,542 and non-personal service costs of $383,892.

http://osc.state.ny.us/audits/allaudits/093015/12s64.pdf

Department of Health: Questionable payments for practitioner services and pharmacy claims

Auditors found the doctor’s medical records did not meet the minimum standards to support his Medicaid claims. A review of a sample of the records found that they contained inadequate and sparse detail. Further, DOH’s review of the records found that they lacked sufficient details to ensure adequate treatment of complex diseases, contained no treatment plans and were illegible. There was insufficient assurance that the doctor provided appropriate medical care and that services totaling $1,039,404 warranted Medicaid payment. Auditors also questioned whether pharmacy claims totaling approximately $15 million for prescription drugs ordered by the doctor were all necessary.

http://osc.state.ny.us/audits/allaudits/093015/12s35.pdf

Department of Health: Bureau of Narcotic Enforcement [Follow-up]

An initial audit report issued in November 2012 examined whether the Bureau of Narcotic Enforcement was effectively and efficiently combating prescription drug diversion and abuse in New York state, in large part through its analysis and use of prescription data that it maintains electronically. Auditors found several areas where the bureau could improve its ability to ensure its resources are used effectively to stem drug diversion and abuse through a range of efforts, from prevention and deterrence to detection and prosecution. In a follow-up report, auditors found DOH has made progress in enhancing its electronic prescription data and in some of the routine analyses that it performs using this data. It has also improved security and accountability over blank prescription forms returned to its office and to its suppliers.

http://osc.state.ny.us/audits/allaudits/093015/15f6.pdf

Metropolitan Transportation Authority: Diversions of service for maintenance and capital projects

An initial report issued in July 2011 determined that while the MTA has a number of policies and procedures for managing and controlling subway diversions, more needed to be done. The audit found that diversion costs were not adequately monitored, and daily work on diversions often started late and ended early. The public was not adequately informed about diversions, shuttle bus service was not planned using current ridership data and the budget for advertisements to communicate information about diversions appeared to be too low. In a follow-up, auditors found MTA officials have made some progress in correcting the problems identified. However, additional improvements are needed.

http://osc.state.ny.us/audits/allaudits/093015/14f10.pdf

Metropolitan Transportation Authority: Staten Island Railway on-time performance

The Staten Island Railway’s (SIR) on-time performance percentage generally approached or exceeded its standard of 95 percent. However, auditors also noted that SIR does not completely report the timeliness of trains to the public. Sometimes trains were intentionally held beyond scheduled departure times to accommodate passengers disembarking from the Staten Island Ferry. Also, trains headed to the ferry were sometimes given priority over scheduled outbound departures, causing the outbound trains to be delayed.

http://osc.state.ny.us/audits/allaudits/093015/15s56.pdf