The dismissal of a probationary employee will not survive judicial review if the court finds that it was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law

The dismissal of a probationary employee will not survive judicial review if the court finds that it was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law

Rieser v New York City Dept. of Educ., 2015 NY Slip Op 08119, Appellate Division, First Department

Michael Rieser, a probationary teacher employed by the New York City Department of Education [DOE], received an unsatisfactory performance rating and ultimately DOE terminated him from his position. Rieser than filed a CPLR Article 78 petition seeking a court order annulling DOE’s decision to discontinue his employment by DOE and to expunge the unsatisfactory rating of Rieser’s performance as a probationary teacher. Supreme Court granted Rieser’s petition and DOE appealed.

The Appellate Division unanimously reversed the Supreme Court’s ruling on the law and the facts and dismissed Rieser’s Article 78 petition.

The court explained that Rieser failed to show that DOE's determination to discontinue his probationary employment was made in bad faith, for a constitutionally impermissible purpose, or in violation of the law.

As to the unsatisfactory performance rating given Rieser, the Appellate Division said that he failed to show that the unsatisfactory rating was arbitrary and capricious.

The court noted that Rieser’s performance rating was “rationally supported by, among other things, witness statements and the principal's letter describing his investigation and finding that [Rieser] had used corporal punishment on a special education student” and there was no indication that the principal or DOE made their decisions in bad faith.

Another issue raised by Rieser concerned the composition of the Chancellor's Committee that reviewed his performance rating. However the court said that Rieser did not raise this issue at his administrative hearing and thus it was not preserved for the purposes of appeal. In any event, said the Appellate Division, “a substantial [due process] right of Rieser was not violated, since the Committee ruled unanimously in his favor.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08119.htm

State Comptroller has launched a new Academy For Local Government Officials

State Comptroller has launched a new Academy For Local Government Officials

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli has launched a new Academy for New York State Local Officials that will provide an enhanced training program to help local administrators and employees become more effective in the day-to-day operations of their government.

The Academy, operated by the Comptroller’s Division of Local Government and School Accountability, increases the number of classroom training sessions and web-based seminars offered on a wide range of topics, including governmental accounting, fiscal responsibilities, board oversight, cybersecurity and policy development.

The Academy provides in-person and online training opportunities, including accounting schools, regional seminars and monthly webinars. There are also interactive training segments aimed at newly elected local officials, such as supervisors, clerks, board members, highway superintendents, attorneys and other fiscal personnel. These sessions will help individuals learn more about open meetings laws, conflicts of interest, financial reporting and requirements of the Freedom of Information Law.

The Comptroller’s office also regularly produces technical advisory bulletins and publications that address a variety of topics that are vital to understanding and managing local governments’ interests.

In 2014, more than 10,000 local officials received training through the Comptroller’s efforts.

To find out more about the Academy for New York State Local Officials, call 1-866-321-8503 or visit: http://www.osc.state.ny.us/localgov/academy/index.htmThe website has a full course catalogue and course calendar, and allows local government officials to choose their courses based on their position or topics of interest.

Employee challenging an unsatisfactory performance rating has the burden of showing that the rating was arbitrary, capricious, made in bad faith, or issued in violation of lawful procedure

Employee challenging an unsatisfactory performance rating has the burden of showing that the rating was arbitrary, capricious, made in bad faith, or issued in violation of lawful procedure

Vyas v City of New York, 2015 NY Slip Op 08360, Appellate Division, First Department

Nayana Vyas, a probationary teacher employed by New York City Department of Education [DOE], filed an Article 78 petition seeking the annulment of DOE’s denial of her appeals of her unsatisfactory ratings [U-ratings] for the 2009-2010 and 2010-2011 school years. In lieu of answering Vyas' petition, DOE made a cross motion, to dismis her petition for failure to state a cause of action. Supreme Court granted DOE motion and Vyas appealed.

With respect to the 2009-2010 U-rating, the court said here the Vyas’ primary complaint was that her evaluation based on assignments to teach science classes, which were outside her area of certification (mathematics). Citing 8 NYCRR §30-1.9[c], the Appellate Division said that DOE was permitted to assign Vyas to teach science classes notwithstanding that her certification was in mathematics, explaining that “Rules of the Board of Regents that prohibits assigning a teacher ‘to devote a substantial portion of [her] time in a tenure area other than that in which [she] has acquired tenure or is in probationary status, without [her] prior written consent’ [is not] applicable to city school districts located within cities having a population in excess of 400,000 inhabitants" such as DOE.

Accordingly, the Appellate Division ruled that DOE was entitled to make the teaching assignment challenged by Vyas and DOE’s evaluation of Vyas based on her performance in that assignment “does not give rise to an inference that the resulting U-ratings were arbitrary, capricious, or made in bad faith, nor were the U-ratings issued in violation of lawful procedure.”

In addition, the court noted that because Vyas was a probationary teacher she could have been discharged at any time, for any lawful reason or no reason at all and “bad faith cannot be inferred from the fact that the U-rating was issued after the school principal insisted that [Vyas] sign an agreement consenting to an additional year of probation to avoid being discharged.”

Turning to Vyas’ challenge to her U-rating for the 2010-2011 school year, the Appellate Division said Vyas contended that it was given in retaliation for her having filed a complaint with the State Department of Education against the principal who issued her U-rating for the previous year, when she was teaching at a different school.” 

However, the court decided that this allegation failed to state a cause of action for annulment of the rating because Vyas’ “imputation of a retaliatory motive for the U-rating is entirely speculative” and the specific facts alleged do not give rise to a fair inference that the U-rating was improperly motivated.

Further, said the Appellate Division, Vyas admitted that she was assigned to teach within her area of certification during the 2010-2011 school year and she did not make any allegation of “procedural irregularities that might have undermined the integrity or fairness of the rating process for that year.”

Finding that Vyas had not pleaded any specific facts giving rise to a fair inference that the U-ratings were arbitrary, capricious, made in bad faith, or issued in violation of lawful procedure, the Appellate Division held that Supreme Court properly granted the cross motion and dismissed the petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08360.htm

Follow-up - OGS successfully auctioned two seized luxury cars

Follow-up - OGS successfully auctioned two seized luxury cars

Source: Office of General Services

On November 27, 2015 NYPPL posted an item captioned “Another ‘Black Friday’ opportunity – New York State to auction two seized luxury cars at December 1, 2015 vehicle and equipment auction in Albany.”

The Office of General Services reports that both luxury cars were successfully auctioned on Tuesday, December 1, 2015.

The high bid for the Audi was $40,000, and the high bid for the Mercedes-Benz was $113,000.

The initial item is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2015/11/another-black-friday-opportunity-new.html