NYC school principal’s appeal of a disciplinary action brought by the NYC Department of Education pursuant to Education Law §3020 sustained in part

NYC school principal’s appeal of a disciplinary action brought by the NYC Department of Education pursuant to Education Law §3020 sustained in part

Decisions of the Commissioner of Education, Decision #16,848

A NYC school principal [Principal] was found guilty of certain disciplinary charges by an arbitrator pursuant to Education Law §3020(3), appealed the arbitrator’s determination.

The Commissioner ruled that the Principal’s appeal must be sustained in part, noting that Education Law §3020, as amended by adding a new subdivision 3, the City School District of the City of New York and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by the District and the Council of Supervisors and Administrators of the City of New York to negotiate agreements that modify or replace the procedures set forth in Education Law §§3020-a and 2590-j(7).  §3020(3). The Commissioner also noted that “the Commissioner shall review any appeals brought in accordance with such agreements.”

Pursuant to Education Law §3020(3), the Council and the District entered into an agreement [Agreement] establishing a modified disciplinary procedures that, to the extent relevant in this appeal, provided that “at the principal’s option, allegations of misconduct may be presented to an impartial arbitrator who will decide whether just cause exists for the proposed action.”

The agreement further provides that, at the request of the principal, the Chancellor of the New York City Department of Education [Chancellor] may review the arbitrator’s decision, “which review must be complete within 15 days of such decision.”  The Agreement provides that “[t]he employee shall be provided with written notice of the outcome of the Chancellor’s review.”  If the Chancellor implements the arbitrator’s decision against the principal, the principal may then apply to the Commissioner of Education for review of the arbitrator’s decision.

The arbitrator issued a final decision on June 20, 2015, finding Principal guilty of certain charges and specifications and imposed a penalty of suspension, such suspension to terminated effective July 1, 2014. 

Although the Principal wrote asking the Chancellor seeking a review the arbitrator’s decision within 15 days and providing her with a written notice of the outcome of the Chancellor’s review in timely fashion, the record indicates that Principal did not receive any response.  On August 19, 2015, the Principal commenced this appeal from the hearing officer’s determination, contending that the arbitrator’s determination was arbitrary, capricious, irrational, and unsupported by the evidence. 

The Commissioner said that she would not render an advisory opinion on an issue before it becomes justiciable, explaining that Article VII(J)(4)(a)(6) of the Agreement clearly provides that either the superintendent or the principal [1] may request a review of the arbitrator’s decision by the Chancellor and if such a request is timely made, [2] requires the Chancellor to complete such review within 15 days and which further requires the Chancellor to provide the employee with written notice of the outcome of the review.  

Thus, said the Commissioner, the Agreement contemplates that the Chancellor “will review the arbitrator's decision, and render a decision of her own.” 

Noting that Commissioner’s regulations implementing Education Law §3020(3) are set out in 8 NYCRR Part 281 and are consistent with provisions in the Agreement, the Commissioner said that record before her contained no such decision by the Chancellor. 

Although the Principal interpreted the Chancellor’s silence as a default, entitling her to appeal the hearing officer’s decision directly to the Commissioner, the Commissioner said that there was no authority for such an action. 

Accordingly, the Commissioner ordered “the Chancellor to review the [arbitrator’s] decision and provide [the Principal] with written notice of the outcome of such review within 15 days of the date of [the Commissioner’s] decision in accordance with Article VII(J)(4)(a)(6) of the Agreement.”

The Commissioner also noted that the Principal “retains the right to commence a new appeal to the Commissioner in the event that the Chancellor implements the hearing officer’s decision” within 15 days from the Principal’s receipt of written notice of the Chancellor’s decision in the event the Principal is unhappy with the Chancellor’s decision.

 

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16848

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges

Recent decisions by NYC Office of Administrative Tribunals and Hearing Administrative Law Judges

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

Unnecessary use of force on inmates

OATH Index No. 156/16

ALJ Alessandra F. Zorgniotti found that a New York City correction officer violated the Department's use of force directive on two occasions by using unnecessary force on inmates who were restrained and also filing a false report. 

ALJ Zorgniotti recommended termination of the correction office's employment.  

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-156.pdf

Employee served with disciplinary charges after complaining about being denied a "day off" on a holiday

OATH Index No. 2686/15

OATH Administrative Law Judge Kevin F. Casey recommended dismissal of charges alleging an New York City Environmental Police Officer was guilty of “conduct prejudicial to good order and discipline by using inappropriate language” to a superior after finding that the Department failed to show that the officer engaged in misconduct when he complained to a supervisor about being denied the day off on a holiday, in this instance Christmas Day.

The ALJ found that the employee’s supervisor had consented to his repeating his complaint to his co-workers and held that “[a] verbal disagreement or expression of dissatisfaction with a supervisor is not always misconduct, even in a paramilitary setting.”

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-2686.pdf

Public Officers Law §36 provides for the removal of an individual from public office for self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust

Public Officers Law §36 provides for the removal of an individual from public office for self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust

Libordi v Isaman, 2015 NY Slip Op 08552, Appellate Division, Fourth Department

Francis Libordi initiated an action in the Appellate Division, 4^th Department, pursuant §36 of the Public Officers Law in an effort to have Kenneth Isaman, a public officer, removed from his position of Town Supervisor of the Town of Hornellsville.*

Libordi alleged that Isaman had been involved in “self-dealing” and had a conflict of interest arising from his employment by an insurance agency that did business with the Town while serving as Town Supervisor. The Appellate Division said that Isaman "conclusively refuted those allegations” and that Libordi failed to present evidence to raise a triable issue of fact with respect to such allegations.

Libordi also alleged another conflict of interest in that Isaman voted at Town Board meetings in favor of appointing his wife to positions with the Town Board, and approving the salaries for her positions.

Noting "[R]emoval from office pursuant to Public Officers Law §36 is an extreme remedy reserved for officials engaged in self-dealing, corrupt activities, conflict of interest, moral turpitude, intentional wrongdoing or violation of a public trust," the court said that [1] Isaman admitted that he should have abstained from those votes and [2] his failure to do so "does not constitute the type of conduct that would warrant removal from office."

The court then unanimously dismissed Libordi’s action.

* Any citizen resident in the jurisdiction, or the appropriate district attorney, may file an application seeking the removal of a public officer enumerated in §36 of the Public Officers Law with the Appellate Division in the appropriate judicial department. §36 requires that a copy of the application and the charges upon which the application is to be made must be served upon the officer at least 8 days prior to such filing. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08552.htm

Where there is conflicting medical evidence Retirement System may rely on its expert’s opinion when such opinion is supported by substantial evidence

Where there is conflicting medical evidence Retirement System may rely on its expert’s opinion when such opinion is supported by substantial evidence 

Gonzalez v DiNapoli, 2015 NY Slip Op 08491, Appellate Division, Third Department

New York State and Local Police and Fire Retirement System [NYSLPFRS] denied Michael Gonzalez’s application for performance of duty disability retirement benefits.*

Gonzalez, a police officer, was diagnosed with coronary artery disease and underwent triple bypass surgery in 2010. After his application was denied by NYSLPFRS Gonzalez requested a hearing and redetermination. At the subsequent hearing, NYSLPFRS conceded that Gonzalez's heart disease was causally related to his employment pursuant to the statutory presumption set out in §363-a of the Retirement and Social Security Law, but challenged his claim that he was permanently disabled from performing his job duties.

The Hearing Officer found, among other things, that Gonzalez had failed to demonstrate that he was permanently disabled. After NYSLPFRS adopted the findings and conclusions of the Hearing Officer and denied Gonzalez’s application, he initiated a CPLR Article 78 proceeding seeking a court order vacating NYSLPFRS’ decision. 

The Appellate Division affirmed NYSLPFRS’ ruling, explaining that "In connection with any application for . . . performance of duty disability retirement benefits, the applicant bears the burden of proving that he or she is permanently incapacitated from the performance of his or her job duties."

Moreover, respondent "is vested with the authority to resolve conflicts in the medical evidence and to credit the opinion of one expert over another, and its determination will not be disturbed when supported by substantial evidence."

Gonzalez had presented the report of his treating cardiologist, Dr. Kenneth Kaplan, who opined that Gonzales should not return to his usual police duties due to the stress involved in the job and that petitioner was permanently disabled.

In contrast, NYSLPFRS presented the report and testimony of cardiologist Dr. Sydney Mehl, who had examined Gonzalez and reviewed his medical records at NYSLPFRS’ request. Dr. Mehl opined that Gonzalez was not permanently incapacitated from performing his job duties, including running and physical altercations based on the successful outcome of his by-pass surgery, normal results from his cardiac examination and an electrocardiogram and Gonzalez’s report of having a "good" cardiac stress test.

While Gonzalez had challenged Dr. Mehl's opinion on the ground that Dr. Mehl did not include a list of the records he had reviewed in forming the opinion, Dr. Mehl had testified that he had reviewed all the records sent to him, including Gonzalez's job duties.

The Appellate Division said that notwithstanding the evidence in the record that would support a contrary result, insofar as Dr. Mehl's opinion was rational, fact-based and founded upon a physical examination of Gonzalez and a review of the relevant medical records, NYSLPRS’ determination was supported by substantial evidence and “it will not be disturbed.”

* Gonzalez had also filed an application for accidental disability retirement contending that he was permanently disabled due an accident that occurred on August 12, 2010 while performing his job duties. A hearing addressing his application for accidental disability retirement was conducted with Gonzalez's performance of duty disability retirement application hearing. Gonzalez's application for accidental disability retirement was denied. The court said that as Gonzalez had not addressed the denial of his accidental disability application in his appeal brief, it was deemed abandoned.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08491.htm

Once the appointing authority of an employee in the classified service has received his or her resignation, the resignation may not be withdrawn or rescinded without the approval of the appointing authority

Once the appointing authority of an employee in the classified service has received his or her resignation, the resignation may not be withdrawn or rescinded without the approval of the appointing authority

Cowin v New York State Div. of Criminal Justice Servs., 2015 NY Slip Op 08683, Appellate Division, Third Department

While employed as a Criminal Justice Program Representative 1 by the Division of Criminal Justice Services (DCJS) Thomas C. Cowin was served with a notice of discipline alleging that he had violated certain sections of the DCJS Employee Handbook and Penal Law §220.03* as the result of his alleged receipt of a controlled substance from a coworker that was not prescribed to him. Cowin filed a grievance under the applicable collective bargaining agreement and, after declining an initial offer of settlement from DCJS, arbitration of the matter was placed in abeyance pending the outcome of further settlement discussions.

On July 11, 2013 Cowin received a provisional offer of employment from the Justice Centerfor the Protection of People with Special Needs (Center). Four days later Cowin hand-delivered his letter of resignation to Karen Davis, DCJS's Director of Human Resources Management, [Davis], in which Cowin stated that his last day of work would be July 30, 2013.

Then on July 18, 2013, the Center notified Cowin that its offer of employment with the Center had been rescinded. Cowin immediately sent an email to Davisseeking to withdraw his letter of resignation but by letter dated July 26, 2013, Cowin was told that his request to rescind or withdraw his letter of resignation was denied. This decision was subsequently confirmed by Michael Green, the Acting Commissioner of DCJS, who again advised Cowin that DCJS did not consent to the withdrawal of his resignation.**

Cowin initiated a CPLR Article 78 proceeding alleging, among other things, that DCJS's refusal to permit him to withdraw his resignation was arbitrary and capricious, an abuse of discretion and affected by error of law. Supreme Court partially granted Cowin’s petition, annulling DCJS's determination and ordered that Cowin be reinstated to his former position with back pay and benefits. DCJS appealed.

The Appellate Division said that “Contrary to the conclusion reached by Supreme Court, [Cowin] was not entitled to unilaterally withdraw his resignation without [the] consent” of DCJS. The court cited 4 NYCRR 5.3(c), which, in pertinent part, provides that a resignation delivered to the appointing authority by an employee in the Classified Service "may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority."

The court explained that Green, as the Acting Commissioner of DCJS charged with the administration of the agency, was the "appointing authority" and had the statutory authority to delegate any of his powers to appointed "deputies, directors, assistants and other officers and employees, committees and consultants as he may deem necessary." As Green had delegated his power to receive employee resignations to the Director of Human Resources Management, Davis, the delivery of Cowin’s letter of resignation to Davisconstituted delivery to Green. Thus Cowin could not withdraw his resignation with the consent of the appointing authority or his or her designee.

The Appellate Division said that it found that DCJS’ consent was not improperly withheld, explaining that permitting an individual to withdraw his or her delivered letter of resignation was a matter committed to the sound discretion of the appointing authority and “such a determination will be disturbed only if it constituted an abuse of discretion or was arbitrary and capricious.”

The court found that Green's decision to refuse Cowin’s request to withdraw his resignation was based upon his consideration of several relevant facts and circumstances, including Cowin's unequivocal admission to accepting a controlled substance from a coworker and ingesting it at work in violation of both DCJS's drug-free work policy and the Penal Law. As such conduct could have a potentially detrimental effect on DCJS's reputation, and Cowin's ability to perform his job duties, the court viewed the appointing authority’s denial of Cowin's request to rescind his resignation as neither arbitrary and capricious nor an abuse of discretion.

The Appellate Division then dismissed Cowin’s petition “in its entirety.”

* §220.03 - Criminal possession of a controlled substance in the seventh degree.

** In contrast, an individual's notice that he or she has decided to withdraw, cancel or rescind the resignation may be received by the appropriate official or body before the resignation is actually "delivered" to such person or body. In such situations the courts usually rule that the receipt of a withdrawal of a resignation before the resignation itself is delivered effectively voids the resignation [see Grogan v Holland Patent CSD, 262 AD2d 1009].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08683.htm

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The Discipline Book - A 458 page guide focusing on New York State laws, rules, regulations, disciplinary grievances procedures set out in collective bargaining agreements and selected court and administrative decisions concerning disciplinary actions involving state and municipal public officers and employees. For more information click on http://booklocker.com/5215.html

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