Recent appointments in the Executive Chamber and by State departments and agencies

Recent appointments to the Executive Chamber and by State departments and agencies

Source: Office of the Governor

On November 5, 2015, Governor Andrew M. Cuomo announced the following  appointments to his administration and to State departments and agencies:

Joanne Choi has been appointed Assistant Director of Constituencies for Asian American Affairs for the Executive Chamber. Ms. Choi is currently the Queens Community Liaison for the New York City Department of Health and Mental Hygiene. Previously, she served as a constituent liaison for Congresswoman Grace Meng, and also has experience in community and constituency relations from the Congresswoman’s 2012 campaign and previously-held Assembly office. Ms. Choi earned a B.A. in political science and an M.A. in public policy from Stony Brook University.

Ruth Noemí Colón has been appointed Vice President of Corporate Shared Services for the New York Power Authority (NYPA). Ms. Colon has worked for NYPA since 2011, most recently as Director of Administration and Environmental Justice. Prior to her work with NYPA, she served in various roles at the New York State Department of State, most recently as Acting Secretary of State from 2010 to 2011, as well as the New York City Housing Authority. She holds both a B.A. and an M.A. from the University of Puerto Rico – San Juan, as well as a J.D. and International Law Certificate from the Pace University School of Law.

Lisa Bova-Hiatt has been appointed Executive Director of the Governor’s Office of Storm Recovery. Ms. Bova-Hiatt has served with the Office of Storm Recovery since January 2014, first as General Counsel, then Acting Chief Operating Officer and most recently as its Acting Executive Director. Previously, she served in the administration of New York City Mayor Michael Bloomberg doing legislative affairs. She also held a variety of senior positions with the New York City Law Department between 1995 and 2014. Ms. Bova-Hiatt received her B.S in business administration from Villanova University, and her J.D. from Brooklyn Law School.

Kitty Kay Chan has been appointed New York State Chief Data Analytics Officer. She is currently the Chief Economist at the Department of Financial Services. Previously Dr. Chan served as the Chief Economist and Director of Audit and Review for the New York State Joint Commission on Public Ethics, and as a Deputy Inspector General for the New York State Inspector General’s Office. Before that, she served as the Director of Economics for the New York State Office of the Attorney General and held positions at the US Federal Communication Commission, the US Department of Agriculture, and a private economic consulting firm. Dr. Chan has taught at New York University, and currently teaches at Columbia. She was a National Science Foundation Fellow and holds a Ph.D. in Economics and a Doctoral Certificate in Environmental Sciences, Policy, and Engineering from the University of Southern California.

Norma Ramos has been appointed Deputy Secretary for Civil Rights. Ms. Ramos has served as the Executive Director of the Coalition Against Trafficking of Women, and previously was the Executive Director of the South Bronx Clean Air Coalition. In addition, she has held positions at the New York City Department of Environmental Protection and the U.S. Environmental Protection Agency. Ms. Ramos has a B.A. From Fordham University, and a J.D. From Temple University School of Law.

Caroline Griffin has been appointed Chief of Staff for DASNY where she is responsible for overseeing intergovernmental relations and managing the Communications + Marketing Department, as well as coordinating policy and operations across DASNY’s multiple business lines. Ms. Griffin has served in the Executive Chamber for Governor Cuomo since 2011, most recently as his Director of Intergovernmental Affairs. Previously, she served in the Office of Intergovernmental Affairs for the administrations of both Governor David Paterson and Governor Eliot Spitzer. Ms. Griffin holds a B.A. in Communications from Boston College.

Kim Nadeau has been appointed Chief Financial Officer and Treasurer of the Dormitory Authority of the State of New York. Ms. Nadeau is currently Vice President for Accounting and Controller at US Light Energy (USLE). Prior to her work with USLE, she served as a Vice President of Accounting and Controller for CH Energy Group, Inc. from 2006 to 2014, and previously held various positions for Northeast Utilities for 1995 to 2006, as well as Coopers and Lybrand LLP from 1989 to 1995. Ms. Nadeau holds a B.S. in Accounting, an M.B.A. and a J.D. from the University of Connecticut.

Emily Saltzman has been appointed Assistant Vice President/Director, Office of Economic Opportunity and Partnership Development, at NYS Homes & Community Renewal. Ms. Saltzman has served as the Director of Community Affairs to Governor Andrew M. Cuomo since 2011. Before joining the Executive Chamber of the State of New York, Ms. Saltzman represented a range of nonprofits, corporations and associations as Government Relations Manager at Brown and Weinraub PLLC. She also held positions at Manhattanville College, Ticketmaster/Citysearch and the New York City Council and served as Assistant Director of Intergovernmental and Constituency Affairs under former Governor Mario M. Cuomo. Ms. Saltzman holds a B.A. from Dartmouth College and an M.P.A. from Columbia University School of International and Public Affairs.

Recent decisions by New York City's Office of Administrative Trials and Hearing Administrative Law Judges

Recent decisions by New York City's Office of Administrative Trials and Hearing  Administrative Law Judges

Employee’s conduct on the job found guilty of creating a risk to others at the workplace

OATH Index No. 1236/14

OATH Administrative Law Judge Kara J. Miller found an employee threatened a stationary engineer on two occasions, improperly lowered medical air pressure, failed to follow a directive to put oil in the air compressor, and left his post and created a potentially hazardous situation by failing to tighten the feed valve on the regulator for one of the boilers.

Judge Miller credited the engineer's testimony that after an alarm sounded in the boiler room, the employee stormed into the engineer's room, asked what was going on, picked up the engineer's computer monitor and lifted it in the air while threatening the engineer. The ALJ also credited the engineer's testimony that the employee had approached him in the parking lot as he was walking to his car and threatened him in a loud and profane manner.

ALJ Miller recommended termination of the employee be terminated from his position, finding that his conduct created a risk to others working at the facility. 

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1236.pdf

Correction officer found guilty of violating a number of his agency’s rules

OATH Index No. 1962/15

A New York City correction officer [CO] was found to have been absent from his residence without authorization while on sick leave and was given instructions to report to the Department’s Health Management Division [HMD] with his shield, his identification [ID] and his personal firearms.

When he reported to HMD, he was placed on immediate suspension because it was his fourth violation. He surrendered his shield and ID but not his firearm, stating that the weapon was at his other residence in Pennsylvania. Although directed to await an escort to accompany him to the Pennsylvania residence to retrieve the firearm, the CO left the facility. The CO then claimed to have found the weapon at his Brooklyn residence on the following day.

OATH Administrative Law Judge Ingrid M. Addison found the CO insubordinate for being out of residence without authorization, failing to surrender his firearm when requested, disobeying the order to remain at HMD, and failing to promptly notify the Department that he had legally changed his name.

Judge Addison recommended that the CO be termination from his position.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1962.pdf

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An applicant for §207-c of the General Municipal Law disability benefits must show that the disability was directly caused by a job-related illness or injury

An applicant for §207-c of the General Municipal Law disability benefits must show that the disability was directly caused by a job-related illness or injury
Caulkins v Town of Pound Ridge, 2015 NY Slip Op 07655, Appellate Division, Second Department

§207-c of the General Municipal Law provides for the payment of “salary, wages, medical and hospital expenses” of law enforcement personnel disabled as the result of injuries or illness incurred in the performance of their official duties. In order to be eligible for disability benefits pursuant to §207-c, however, the employee must "prove a direct causal relationship between job duties and the resulting illness or injury."*

Tammy Caulkins, a Town employee, was receiving §207-c disability benefits. A hearing officer found that Caulkins' disability was not related to a line-of-duty injury that Caulkins had suffered in October 2008. The Town Board of the Town of Pound Ridge adopted the findings of the hearing officer, made after a hearing, and discontinued Caulkins §207-c disability benefits.

Caulkins sued the Town seeking a court order directing the Town Board to reinstate her §207-c benefits. Supreme Court denied her petition, which ruling was affirmed by the Appellate Division.

The Appellate Division said that judicial review of an administrative determination made after a hearing required by law at which evidence is taken is limited to whether the determination is supported by substantial evidence, explaining that substantial evidence consists of "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

In this instance the Appellate Division found that Caulkins did not sustain her burden of demonstrating that her disability was the direct result of her October 2008 “on-the-job” injury and substantial evidence supported the hearing officer's determination that her current disability was not causally related to the on-the-job injuries she had suffered October 2008.

* A firefighter seeking benefits pursuant to §207-a of the General Municipal Law must also "prove a direct causal relationship between job duties and the resulting illness or injury" in order to be eligible for such disability benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07655.htm

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An employee who alleged she was subjected to retaliation because she testified before a grand jury was not engaged in “protected activity” within the meaning of the State’s Human Rights Law

An employee who alleged she was subjected to retaliation because she testified before a grand jury was not engaged in “protected activity” within the meaning of the State’s Human Rights Law

Clarson v City of Long Beach, 2015 NY Slip Op 07614, Appellate Division, Second Department

Sandra Yu Clarson, an Asian-American woman, served as the City Comptroller for the City of Long Beach [City]. Alleging that the City had terminated her employment in retaliation against her because "she cooperated and provided testimony to a grand jury regarding alleged criminal activity of a city councilperson, and that the City subsequently hired a less qualified, white male to fill her former position," Clarson sued the City to recover damages for unlawful retaliation in violation of Executive Law §296, New York State’s Human Rights Law.

The City moved to dismiss the complaint for failure to state a cause of action but Supreme Court denied the City's motion. The Appellate Division reversed the lower court’s decision.

The Appellate Division explained that when considering a motion to dismiss the complaint for failure to state a cause of action, the court must accept the plaintiff's allegations as true, afford the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.

In this instance, said the court, Clarson failed to state a cause of action alleging retaliation in violation of Executive Law §296(1)(e), which section provides that “it is unlawful to retaliate against an employee because he or she opposed statutorily forbidden discriminatory practices."

In order to make a prima facie showing of retaliation within the meaning of Executive Law §296, a plaintiff is required to show that:

(1) he or she was engaged in protected activity;

(2) his or her employer was aware that he or she participated in such activity;

(3) he or she  suffered an adverse employment action based upon his or her activity; and

(4) there was a causal connection between the protected activity and the adverse action."

The Appellate Division said that an employee engages in a "protected activity" by "opposing or complaining about unlawful discrimination."

However, the court found that Clarson’s testimony before the grand jury “was unrelated to opposing or complaining about statutorily prohibited discrimination,” and, therefore, “was not ‘protected activity' as contemplated by the [the State's Human Rights Law].”

Further, notwithstanding Clarson’s contention to the contrary, the court said that her complaint does not allege a cause of action for retaliation based on whistle-blowing activities in violation of Civil Service Law §75-b.

The Appellate Division reversed the Supreme Court’s decision “on the law,” and granted the City’s motion to dismiss the complaint is granted.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07614.htm

Educators are ineligible for unemployment insurance between academic terms only if given timely assurance of reemployment for the next academic term

Educators are ineligible for unemployment insurance between academic terms only if given timely assurance of reemployment for the next academic term

Upham (Dutchess Community Coll.--Commissioner of Labor), 2015 NY Slip Op 07898, Appellate Division, Third Department

Labor Law §590(10) prohibits a professional employed by an educational institution from receiving unemployment insurance benefits during the period between two successive academic terms if the educational institution has given the professional a reasonable assurance of continued employment.

In cases where educational institutions have failed to set forth the terms or conditions of continued employment or have made such employment contingent upon certain conditions, courts have found that a reasonable assurance of reemployment was lacking and thus the individual was eligible for unemployment insurance benefits.

Paul Upham served as an adjunct instructor at a community college and, during the fall 2013 semester, he taught three courses in history and government. Prior to the end of that semester, the chair of his department asked Upham if he wanted to teach potentially four courses during the spring 2014 semester and he expressed an interest in doing so.

After the semester ended, the college sent Upham a letter "anticipat[ing] that [he would] be invited to return to teach," during the spring 2014 semester "subject to enrollment and/or budget constraints."

Upham had applied for unemployment insurance benefits before receiving this letter.  Following a hearing, an Administrative Law Judge concluded that Upham was, in fact, eligible to receive benefits because the college had not given him a reasonable assurance of continued employment within the meaning of Labor Law §590(10).

The Unemployment Insurance Appeal Board sustained the administrative law judge’s decision and the college appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling, explaining that while Labor Law §590(10) makes a professional employed by an educational institution ineligible for unemployment insurance benefits during the period between two successive academic terms, such ineligibility is triggered by the claimant having been given a reasonable assurance of continued employment by the institution.

A "reasonable assurance," in turn, is a representation by the educational institution "that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period." Whether the claimant has been given a “reasonable assurance” is a factual question for the Board to resolve and its determination will be upheld if supported by substantial evidence.

While the department chair mentioned that Upham could teach potentially four courses during the spring 2014 semester, which exceeded the number that he taught during the fall 2013 semester, this was never confirmed during any subsequent conversations nor in the letter sent to Upham.

Significantly, the Appellate Division noted that the letter did not specify the details of the spring 2014 semester teaching assignment and conditioned Upham’s further employment upon "enrollment and/or budget constraints."

Accordingly, said the court substantial evidence supports the Board's finding that Upham was entitled to receive unemployment insurance benefits.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07898.htm

A governmental entity’s liability for alleged negligence is limited

A governmental entity’s liability for alleged negligence is limited
Guerrieri v New York City Dept./Bd. of Educ., 2015 NY Slip Op 07816, Appellate Division, Second Department

As a general rule, a governmental entity’s liability for alleged negligence may arise where the entity has a special duty or a special relationship to the plaintiff. Such a special duty can arise in three situations: (1) the plaintiff belonged to a class for whose benefit a statute was enacted; (2) the government entity voluntarily assumed a duty to the plaintiff beyond what was owed to the public generally; or (3) the municipality took positive control of a known and dangerous safety condition. Further, the plaintiff has the burden of proving that the government defendant owed a special duty of care to the injured party because such a duty is an essential element of the negligence claim itself and in situations where the plaintiff fails to meet this burden, liability may not be imputed to the municipality that acted in a governmental capacity.

Thomas Guerrieri was employed as a school bus driver by an independent contractor that contracted with the New York City Department/Board of Education [BOE] to provide student transportation services.

Guerrieri was allegedly assaulted by one of the students he was transporting and sued BOE, among others, for damages for personal injury. Supreme Court granted BOE’s motion for summary judgment dismissing the complaint insofar as asserted against it and Guerrieri appealed.

Citing Garrett v Holiday Inns, 58 NY2d 253, the Appellate Division sustained the lower court’s ruling, explaining that "Liability for a claim that a municipality negligently exercised a governmental function turns upon the existence of a special duty to the injured person, in contrast to a general duty owed to the public." In contrast to a school district having a special duty to its students to adequately supervise them to prevent foreseeable injuries to fellow students, the court said that such a duty does not extend to adults.

Holding that BOE “demonstrated its prima facie entitlement to judgment as a matter of law” by establishing that it did not owe Guerrieri a special duty and Guerrieri’s failing to raise a triable issue of fact, the Appellate Division said that Supreme Court properly granted BOE’s motion for summary judgment “dismissing the complaint insofar as asserted against it.”

Dinardo v City of New York, 13 NY3d 872, provides another illustration of the proof of a “special duty” that a plaintiff is required to demonstrate.

Zelinda Dinardo, a special education teacher at a New York City public school, was injured when she tried to restrain one student from attacking another. The student had been orally and physically aggressive for several months and Dinardo had repeatedly expressed concerns to her supervisors about her safety in the classroom. The school's supervisor of special education and the principal had both told Dinardo that "things were being worked on, things were happening" and urged Dinardo to "hang in there because something was being done" to have the student removed.

Following her injury, Dinardo commenced an action alleging, among other things, that by the assurances given to her by her supervisor and her principal, the Board of Education of the City of New York had assumed an affirmative duty to take action with respect to the removal of the student and that she justifiably relied upon those assurances. When the student was not removed in a timely fashion, Dinardo alleged, the altercation which led to her injury resulted.

In the words of the Dinardo court, “Affording Dinardo every inference that may properly be drawn from the evidence presented and considering the evidence in a light most favorable to her (see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]), we conclude that there is no rational process by which the jury could have reached a finding that [Dinardo] justifiably relied on assurances by the Board of Education. The vaguely worded statements by Dinardo's supervisor and principal that 'something' was being done to have the student removed, without any indication of when, or if, such relief would come, do not, as a matter of law, constitute an action that would lull a plaintiff into a false sense of security or otherwise generate justifiable reliance. Indeed, [Dinardo] was aware that the administrative process for determining whether a student should transfer to a different program or school could take up to 60 days and was still ongoing when the incident occurred. There was therefore no "special relationship" between the Board of Education and [Dinardo] (see Cuffy, 69 NY2d at 259), upon which a cause of action for negligence could be based, and the Board of Education is entitled to judgment as a matter of law.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07816.htm

Selected Reports issued by the Office of the State Comptroller during the week ending October 31, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending October 31, 2015

Click on text highlighted in color to access the full report

Former Town Clerk falsified her own tax payments

Former DePeyster Town Clerk Michelle Sheppard was sentenced to five years probation and paid a total of $4,303 in restitution for falsifying her own tax payments for at least three years until her crimes were exposed in an audit and investigation by State Comptroller Thomas P. DiNapoli’s office.

http://www.osc.state.ny.us/localgov/audits/towns/2015/depeyster.htm?utm_source=weeklynews20151101&utm_medium=email&utm_campaign=102615release

New York receives 91 cents for each dollar sent to Washington, D.C.

For every dollar New York sends to Washington D.C., it receives about 91 cents back in federal spending — compared to a national average of nearly $1.22, according to a report released by State Comptroller Thomas P. DiNapoli.

http://osc.state.ny.us/reports/budget/2015/fed_budget_fy2013.pdf?utm_source=weeklynews20151101&utm_medium=email&utm_campaign=102715release

Individuals, government agencies, businesses and charitable organizations urged to check for unclaimed money held by State Comptroller

New York State Comptroller Thomas P. DiNapoli encourages individuals and other entities to search for unclaimed funds, also known as lost and forgotten money, now being held by the State Comptroller in the State’s Abandoned Property Fund pursuant to the Abandoned Property Law.The Abandoned Property Fund now holds over 14 Billion Dollars.

http://www.osc.state.ny.us/ouf/

Audits of State Agencies released

New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued: the

Department of Health (Improper Payments to a Dentist - Follow-up); Workers’ Compensation Board; Tuition Assistance Program; and the

Department of Health (Medicaid Program: Appropriateness of Medicaid Eligibility Determined by the New York State of Health System).

Court annuls employee's unsatisfactory performance rating after finding that the rating lacked a rational basis and was arbitrary and capricious

Court annuls employee's unsatisfactory performance rating after finding that the rating lacked a rational basis and was arbitrary and capricious

Mendez v New York City Dept. of Educ., 2015 NY Slip Op 07599, Appellate Division, First Department

A tenured common branches teacher [Teacher] employed by the New York City Department of Education [DOE] who had received satisfactory ratings since February 2010, forfeited her tenure as a common branches teacher in order to obtain a position as a special education teacher. Appointed as a probationary special education teacher at a high school subject to the satisfactory completion of a two-year probationary period ending in September 2012, Teacher was given a satisfactory rating on her Annual Professional Performance Review for the 2010-2011 school year.

During the summer of 2011, Teacher was an “unsatisfactory rating” [U-rating] and was suspended without pay for four days based on an incident where she was found to have engaged in a loud argument with another teacher in front of students. Teacher appealed and the Chancellor's Committee held a hearing. During the course of the hearing the Superintendent Representative conceded that the four-day suspension was "inappropriate" under the terms of the relevant collective bargaining agreement and it was reversed because of the error.

After receiving a second U-rating,* Teacher was terminated from the position.

A majority of the Appellate Division, Judge Sweeny dissented in part, addressing Teacher’s U-rating for the summer of 2011, held that the U-rating “lacked a rational basis and was arbitrary and capricious.” The court said that accepting the testimony that Teacher had engaged in a loud argument with another teacher about sharing a room, there is no rational basis to find Teacher's conduct was unprofessional, insubordinate or unbecoming.

The majority, noting that the subject of the argument concerned whether Teacher's students with disabilities should share space with students that composed the art cluster or obtain a larger classroom, said that there was no evidence presented that the content of conversation itself was unprofessional. In the words of the court, “The simple conduct of an argument without more elaboration on how the subject and language of the conversation was unprofessional is insufficient to provide a rational basis for professional misconduct.”

Further, said the court, Teacher’s failure to admit that the conversation rose to the level of an argument is not evidence of insubordination.”

Turning to DOE’s termination of Teacher’s employment, the Appellate Division, citing Brown v City of New York, 280 AD2d 368, observed that it is well established that a "probationary employee may be discharged for any or no reason at all in the absence of a showing that [the] dismissal was in bad faith, for a constitutionally impermissible purpose or in violation of law."

Here, however, the court determined that Teacher had established a deficiency in the review process that resulted in Teacher’s termination that was "not merely technical, but undermined the integrity and fairness of the process" considering the fact that the record demonstrated  that Teacher had received satisfactory ratings since February 2010, “which established her professional conduct but for the alleged incident of a loud argument.”

The Appellate Division annulled Teacher's termination and the summer 2011 U-rating and then remanded the  matter to DOE for completion of its final review of the second U-rating for the 2011-2012 school year.

* Teacher’s challenge to the second U-rating for the 2011-2012 school year was premature as she had not exhausted her administrative remedies and a determination of her appeal of that rating had not yet been made at the time the petition was brought.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07599.htm

An educator's claim of tenure by estoppel may be defeated if the educator agrees to an extension of his or her probationary period

An educator's claim of tenure by estoppel may be defeated if the educator agrees to an extension of his or her probationary period

Slutsky-Nava v Yonkers City School Dist. Bd. of Educ., 2015 NY Slip Op 07670, Appellate Division, Second Department

A teacher may attain tenure by estoppel* when a school board accepts the continued services of a teacher 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.

In this CPLR Article 78 action a teacher [Teacher] asked to court to review a determination of the Yonkers City School District Board of Education [Yonkers] terminating Teacher’s employment as an elementary school teacher. Supreme Court granted Yonkers’ motion to dismiss Teacher’s petition and Teacher appealed.

According to the decision, Teacher was appointed by Yonkers as an elementary school teacher subject to Teacher’s satisfactorily completing a three-year probationary period which was to run through September 2, 2011. Teacher, however, was laid off from her position, effective June 31, 2011. In August 2012, she was again offered a position as an elementary school teacher, starting September 1, 2012.**

Upon her reemployment Teacher was told that, as a result of having been laid off, her probationary period was being extended to November 4, 2012. She signed the offer of employment, which clearly stated that her "expected date of tenure [would] be on November 4, 2012." The petitioner's employment was terminated on October 17, 2012, after she received an unsatisfactory rating.

The Appellate Division said that Teacher’s “probationary period was properly extended to November 4, 2012 since she signed an offer of employment which specified that she would not become eligible for tenure until November 4, 2012.” As Yonkers terminated the Teacher’s employment prior to the expiration of her probationary period and she did not perform the duties of a teacher after November 4, 2012, Supreme Court properly determined that, even accepting the allegations in the Teacher’s petition as true, she could not have acquired tenure by estoppel.

The court also rejected Teacher’s claim that Education Law §2573(15),***which, among other things, describes certain factors to be considered in calculating service for the purposes of determining a teacher's probationary period, holding that §2573(15) did not apply to the facts of this case.

The Appellate Division then held that “[s]ince the allegations of the petition were insufficient to state a cause of action to review [Yonkers’] determination based on the theory of tenure by estoppel, the Supreme Court properly granted [its] motion to dismiss the petition and, in effect, dismissed the proceeding.” 

* Also sometimes referred to as tenure by acquisition, tenure by default or tenure by inaction.

** Presumably [1] Yonkers abolished a position in the elementary tenure area, [2] Teacher was the least senior employee in that tenure area and her name was placed on a preferred list and [3] Teacher was subsequently appointed from the preferred list.

*** §2573(15), which applies to city school districts of cities with one hundred twenty-five thousand inhabitants or more, provides as follows: “15. Notwithstanding any other provision of this section [2573] no period in any school year for which there is no required service and/or for which no compensation is provided shall in any event constitute a break or suspension of probationary period or continuity of tenure rights of any of the persons hereinabove described.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07670.htm

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Remanding a disciplinary penalty “to a new hearing officer” to determine a “lesser penalty”

Remanding a disciplinary penalty “to a new hearing officer” to determine a “lesser penalty”

Fox v New York City Dept. of Educ., 2015 NY Slip Op 07792, Appellate Division, First Department

The New York City Department of Education [DOE] appealed a decision by Supreme Court that [1] vacated the penalty of termination of a guidance counselor's employment imposed by DOE after a disciplinary hearing and [2] remanded the matter to DOE for a determination of a "lesser penalty” by a new hearing officer.  

The Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and reinstated the penalty imposed on the educator by DOE, dismissal from the position.

The Appellate Division explained that the guidance counselor had engaged in a course of conduct over two years demonstrating "insubordination, professional unfitness, inability to handle a crisis situation, disclosure of confidential information, and inadequate record keeping."

Under the circumstances, said the court, "The termination of [the guidance counselor's] employment is not so disproportionate to this pattern of misconduct as to shock our sense of fairness," citing Lackow v Department of Education, 51 AD3d 563.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07792.htm

_________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://booklocker.com/books/7401.html

_________________