A school administrator's transfer to another position within his or her tenure area at a lower salary as the result of a reorganization held not a disciplinary action

A school administrator's transfer to another position within his or her tenure area at a lower salary as the result of a reorganization held not a disciplinary action

Appeal of Charles R. Soriano Decisions of the Commissioner of Education, Decision #16,849

Charles R. Soriano, a tenured administrator was employed in the district as an assistant superintendent of schools until he was transferred, within his tenure area of “Administrator,” to the position of middle school principal.

Soriano had initially entered into an Employment Agreement [Agreement] with the school board in 2003 as assistant superintendent. The Agreement fixed his salary and benefits for a four-year period. 

This Agreement was subsequently amended by addenda in 2006, 2007, and 2010, with the 2010 Agreement including an extension of its term through July 1, 2012.  Together with the addenda, the Agreement included a salary schedule with annual increases as well as several other benefits tied to Soriano’s salary such as a deferred tax annuity contribution by the district, life insurance in the amount of three and one half times Soriano’s annual salary, and "sell-back options" for unused vacation and sick time at a pro-rata share of Soriano’s annual salary. 

At its June 19, 2012 meeting, the school board approved a reorganization of the administrative staff within the district, including the appointment of Soriano to the position of middle school principal, effective July 1, 2012 at a lower annual salary.

Soriano wrote the school board demanding that the then-current annual rate of compensation he received as an Assistant Superintendent be continued in accordance with the “board’s legal obligations” and contended that the decrease in his compensation approved by the school board was “unreasonable and constituted discipline”  In response, a letter signed by the school board president dated June 29, 2012, advised Soriano that the school board “declined to reinstate [Soriano’s] previous salary," stating that the new salary was an adjustment which was appropriate under the circumstances, not a disciplinary action.  

Soriano appealed the school board’s decision to the Commissioner of Education. As a remedy, he asked for the restoration of his salary and benefits retroactive to July 1, 2012, “as well as salary increases at increments prescribed in the [relevant collective bargaining agreement] and any benefits exceeding those provided to him in the 2011-2012 school year.”

In its defense, the school board contended that Soriano’s salary reduction [1] was not arbitrary or capricious, rather it was reasonable under the circumstances; [2] the  Agreement relied upon by Soriano was not binding as it had expired on June 30, 2012; [3] “even if the Employment Agreement had not expired, it would be considered void as against public policy as one board cannot bind a successor board by a contract extending beyond the term of the contracting board;” and [4] the tenure statutes and broad administrative tenure area of the district do not require an administrator to retain  his or her prior salary when transferred to a new position within his or her tenure area. 

The Commissioner initially addressed two procedural issues:

1. In its memorandum of law the school board argued that Soriano failed to file a grievance as required by the relevant collective bargaining agreement and thus had failed to exhaust his administrative remedies prior to filing his appeal to the Commissioner.  The Commissioner said that the school board had failed to raise the exhaustion of administrative remedies argument in its answer as an affirmative defense and ruled that such a defense has been waived by the school district.

2. Soriano had cited Stokes v. City of Mount Vernon in a letter to the Commissioner submitted by him after filing of his memorandum of law. The Commissioner declined to consider the decision as it had been available before Soriano had submitted his memorandum of law.

Turning to the merits of Soriano’s appeal, the Commissioner said Soriano salary was not decreased as a result of dissatisfaction with his performance or as the result of a disciplinary action and the minutes of school board’s July 3, 2012 board meeting reflect board approval of Soriano’s salary without noting any disciplinary reason.

The Commissioner also noted that in Appeal of Cadicamo* the then Commissioner of Education ruled that a salary decrease such as the one Soriano experienced cannot fall below an individual’s starting salary. Cadicamo explains that “[w]hile the salary of an employee may be reduced, it may not be reduced to a point below that at which the employee was induced to join the system.” Finding that Soriano’s starting salary in 2003 was less than his current salary as middle school principal and was neither below that starting salary nor below the minimum level for a middle school principal position within the district, the Commissioner said that absent some showing that the school board’s actions were disciplinary in nature, she “cannot find that the salary reduction was contrary to law.”

Soriano also argued that in “a parallel situation under the Civil Service Law, a lateral transfer of a tenured civil service employee that results in a reduction of salary constitutes disciplinary action that may only be imposed after a hearing under Civil Service Law §75, citing Bailey v. Susquehanna Valley Cent. School Dist. Board of Educ., 276 AD2d 963 and Borrell v. County of Genesee, 73 AD2d 386. Soriano contended that “the principle of those Civil Service Law cases” should be extended to tenured teachers under the Education Law.

The Commissioner said she did not agree that the principle articulated in the cases decided under the Civil Service Law should be applied “on these facts to confer upon [Soriano] a right to retain his salary and benefits as assistant superintendent upon transfer within his tenure area,” explaining that although CSL §75 prohibits imposition of a disciplinary penalty without a hearing and Civil Service Law §75(3) specifically provides that a “reduction in grade or title” is a disciplinary penalty that can be imposed, “there is no comparable language in Education Law §§3020 or 3020-a and thus no explicit statutory requirement that a demotion with reduction in pay be considered a disciplinary action.”

Turning to Soriano’s argument that the Agreement remained in effect absent an extension or new agreement, the Commissioner said that “juxtaposed with the expiration date plainly set forth therein, [such an argument] is unpersuasive,” and the Agreement cannot bind the school board beyond its stated expiration date of June 30, 2012. 

As the Agreement was not binding on the school board, the Commissioner ruled that Soriano “was not entitled to the salary contained therein beyond the expiration of his employment contract” nor, on these facts, found that the setting of Soriano’s salary constituted discipline or was arbitrary or capricious.

Based on the record before her, the Commissioner held that Soriano failed to meet his burden of establishing that the salary and benefits designated by school board upon his appointment to the position of middle school principal was arbitrary and capricious or that such action was disciplinary in nature.

* Appeal of Cadicamo, 15 Ed Dept Rep 274, Decision #9,167; aff’d as Bd. of Ed., Mt. Sinai UFSD v. Nyquist, Supreme Court, Albany Co., [Cobb, J.], June 23, 1976, [Not selected for publication in the Official Reports].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16849

Comptroller Dinapoli and A.G. Schneiderman announce sentencing of former Halfmoon Town Supervisor for stealing campaign funds

Comptroller Dinapoli and A.G. Schneiderman announce sentencing of former Halfmoon Town Supervisor for stealing campaign funds
Source: Office of the State Comptroller

 
Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman today announced the sentencing of Melinda “Mindy” Wormuth, the former town of Halfmoon Supervisor, on state charges for stealing several campaign contributions donated to her campaign fund. The public corruption case arose out of a cooperative federal-state partnership between the State Comptroller, the Attorney General, the Federal Bureau of Investigation and the United States Attorney's Office for the Northern District of New York.
 
Wormuth previously pleaded guilty to Grand Larceny in the Fourth Degree in Saratoga County Court. The Honorable Matthew J. Sypniewski sentenced Wormuth to 10 months of incarceration in the county jail with said term to run concurrent with a term of incarceration in a federal penitentiary stemming from related charges in federal court.

As part of the plea agreement, Wormuth must also pay $1,250 in restitution to the Friends of Mindy Wormuth campaign committee and terminate the committee in accordance with the New York State Election Law. Wormuth also agreed to contribute any remaining funds of that campaign committee to a charity that is recognized by the Internal Revenue Service, but is not one over which she or a member of her family holds controls or decision making powers.

 
The charges against Wormuth claimed that between July 2009 and July 2013, Wormuth cashed seven contribution checks, totaling $6,250, intended for Friends of Mindy Wormuth. She then pocketed the proceeds without reporting the contributions to the committee’s treasurer, or on the Financial Disclosure Reports that were filed with the State Board of Elections.

 
The felony complaint relied, in part, on statements that Wormuth made to the FBI, including an admission that she cashed and spent certain checks made payable to her campaign. In one FBI interview, Wormuth attributed some of her actions to her bitterness at not receiving her political party’s endorsement for reelection in November 2013.  
 
From 2007 to January, 2013, Wormuth served as the Supervisor of the town of Halfmoonin Saratoga County. In that capacity, she headed the Halfmoon Town Board and served as the town’s representative on the Saratoga County Board of Supervisors.  

The case was investigated by the Comptroller’s Division of Investigations. The Attorney General and State Comptroller thank the Federal Bureau of Investigation and the U.S. Attorney’s Office for the Northern District of New York for their partnership.

 
The case was handled by former Senior Assistant Attorney General Darren Miller and Assistant Attorney General Bridget Holohan Scally of the Public Integrity Bureau. The Public Integrity Bureau is led by Bureau Chief Daniel Cort and Deputy Bureau Chief Stacy Aronowitz. The investigation was conducted by Investigator Mitch Paurowski of the Investigations Bureau with assistance from Associate Forensic Auditor Jason W. Blair of the Forensic Audit Unit. The Forensic Audit Unit is led by Edward Keegan. The Investigations Bureau is led by Bureau Chief Dominick Zarrella and Deputy Bureau Chief Antoine Karam. The Criminal Division is led by Executive Deputy Attorney General for Criminal Justice Kelly Donovan.

Individual whose name was on a preferred list challenged the appointing authority's failure to use the preferred list to fill a vacancy alleged to be a similar position

Individual whose name was on a preferred list challenged the appointing authority's failure to use the preferred list to fill a vacancy alleged to be a similar position

Matter of Renee Eschmann and the Board of Education of the Tuckahoe Union Free School District, Decisions of the Commissioner of Education, Decision #16,853

In this decision Commissioner of Education MaryEllen Elia addresses a number of significant procedural issues concerning the filing an appeal to the Commissioner and substantive issues with respect to layoff and the use of preferred lists to fill a vacancy.

The genesis of Commissioner Elia’s ruling was the appeal to the Commissioner submitted by Renee Eschmann challenging the action of the Tuckahoe Union Free School District's Board of Education appointing Sabrina Peduto to the position of school psychologist. 

Eschmann, a licensed psychologist and holding a permanent certification in school psychology, was granted tenure in the school psychologist special subject tenure area by Tuckahoe in 2002.  Effective June 30, 2006, Tuckahoe abolished her position and Eschmann’s name was placed on the preferred eligibility list [PEL] for the school psychologist special subject tenure area.

According to the record, in July 2013 Eschmann learned that Tuckahoe had posted a vacancy for a full-time school psychologist position for the 2012-2013 school year and had then appointed  Peduto to the vacancy in February 2013. Eschmann then wrote to Tuckahoe claiming “entitlement to the school psychologist position and requested reinstatement to her former position.” Tuckahoe responded, advising Eschmann that she was not entitled to the position[1]  as it was not more than 50 percent similar to her former position and [2] that, in any event, the position was filled in August 2013, at which time Eschmann’s name was no longer on the PEL.* 

In her appeal to the Commissioner Eschmann contended that the duties of her former position are substantially similar to the duties of the school psychologist position and, therefore, pursuant to Education Law §2510, she was entitled to be appointed to that position from the PEL. She asked that the Commissioner issue an order directing Tuckahoe to appoint her to the school psychologist position as of the time it was filled in February 2013, "with back pay and benefits as well as seniority credit, retirement service credit and any other emoluments of employment" retroactive to February 2013.

In rebuttal, Tuckahoe generally denied that Eschmann was entitled the appointment to the position of school psychologist from the PEL, contending that the position was not similar to Eschmann’s former position because it contained duties relating to the committee on special education (“CSE”) and the committee on preschool special education (“CPSE”).  Tuckahoe also asserted three affirmative defenses: improper service, failure to state a claim upon which relief may be granted, and that the petition is untimely, arguing that for “all of the above reasons” Eschmann’s appeal must be dismissed.

The Commissioner initially addressed the following procedural issues:

Timeliness of Eschmann appeal to the Commissioner.

An appeal to the Commissioner must be commenced within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown. Where, however, a petitioner has first commenced an action in the courts which has been dismissed on some basis not involving the merits, the date of dismissal is generally regarded as the equivalent of the date of the "making of the decision or the performance of the act complained of" and in earlier decisions Commissioners have allowed an appeal to the Commissioner within 30 days after such dismissal.**Noting that Eschmann’s appeal to the Commissioner was commenced within 30 days after the Supreme Court’s dismissal of the Article 78 proceeding, Commissioner Elia ruled that Eschmann’s appeal to the Commissioner was timely commenced.

Submitting additional affidavits, exhibits and other supporting papers to the Commissioner. 

Commissioner Elia said that although the submission of additional evidence is permitted, a party may not add new claims against a respondent for which notice has not been provided. Further, the Commissioner said that she would “not accept materials that raise new issues and introduce new exhibits that are not relevant to the claims originally raised in the appeal.”

Submission of additional pleading.

Parties cannot agree among themselves to the submission of additional pleadings that do not meet the requirements of §275.3(b) of the Commissioner's regulations. Further, the regulations allow parties to submit additional pleadings only with the prior permission of the Commissioner.

Service of an appeal upon the parties.

Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service.

Eschmann's petition was served on Victor Karlsson, a school business official, who was not authorized to accept service on behalf of Tuckahoe. However an affidavit from the process server indicating that he believed Karlsson to be an authorized agent and that Karlsson indicated he was authorized to accept service. In contrast, Karlsson’s affidavit does not indicate whether or not he stated that he was not authorized to accept service, while the affidavit of petitioner’s process server states that Karlsson affirmatively indicated he was authorized to accept service. As the burden was on Tuckahoe to establish its affirmative defense, the Commissioner concluded that “on this record” Tuckahoe failed to meet its burden and declined to dismiss Eschmann’s appeal for failure to properly serve Tuckahoe under these circumstances.

Joining a necessary party

Commissioner Elia also decline to dismiss Eschmann’s appeal “for failure to join a necessary party,” Dr. Randi Newman, noting that her Office of Counsel had advised the all the parties that Eschmann’s earlier request to join Dr. Newman as a necessary party was granted. Consequently, said the Commissioner, “in this instance, I find the failure to include Dr. Newman in the original petition is not a basis for dismissal of this appeal.

Turning to the merits of Eschmann’s appeal, the Commissioner ruled that:

Reinstatement rights from a preferred list.

With respect to reinstatement rights from a preferred list, an individual whose position is abolished has reinstatement rights, but only if the new position is "similar" to the former position.  The test to determine whether the two positions are "similar" is whether more than 50 percent of the duties of the new position are those which were performed by the Eschmann in her former position and she has the burden of proving that a majority of the duties of the new position are similar to those of her former position. Noting that the standard of what is similar is flexible and is not to be applied mechanically, Commissioner Elia said that “On this record, I find that [Eschmann] has met her burden of proving that the two positions are similar.” 

Similarity of positions.

Explaining that in assessing the similarity of positions the law does not require a comparison of job titles, but rather an analysis of job responsibilities, the Commissioner said that Tuckahoe  offered no evidence of the duties performed by Peduto in the 2013-2014 school year beyond those of a CSE or CPSE member. As the record shows that Eschmann served as a member of the CSE and that she performed duties similar to the duties of members of the CPSE and the Section 504 committee, the Commissioner said that absent any other evidence, she found the duties Peduto performed following her appointment were indistinguishable from those of a CSE member and, as such, are similar to those performed by Eschmann in her former position. 

The bottom line: Commissioner Elia sustained Eschmann’s appeal, presumably with back pay and benefits effective February, 2013.

* Both §§2510.3(a) and 3013.3(a) provide that the name of  an individual shall remain on the relevant preferred list for seven years from the date on which his or her position was abolished. Eschmann’s position was abolished June 30, 2006; Peduto was appointed to the contested vacancy in February 2013.

** Prior to filling her appeal to the Commissioner Eschmann had commenced a timely Article 78 proceeding in Westchester County Supreme Court seeking an order and judgment for reinstatement to her former position. Her petition was dismissed under the doctrine of primary jurisdiction, i.e., the deferral by a court of its power to hear a case pending administrative review of the matter by the appropriate administrative tribunal having jurisdiction, whereupon Eschmann submitted her appeal to the Commissioner of Education.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d168530

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant New York State laws, rules and regulations, and selected court and administrative decisions involving layoff and related matters. For more information click on http://booklocker.com/5216.html

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Selected Reports issued by the Office of the State Comptroller during the week ending December 11, 2015

Selected Reports issued by the Office of the State Comptroller during the week ending December 11, 2015

Click on text highlighted in color to access the full report 

Former pharmacist pleads guilty in $232,000 fake prescriptions scam involving Medicaid and the New York State Health Insurance Program (NYSHIP)

A former Long Island pharmacist admitted today he faked prescriptions to steal $232,000 in a fraud that was uncovered in two audits*by State Comptroller Thomas P. DiNapoli’s office.

The Comptroller reports that William Davis, the former owner of Davis Ethical Pharmacy in Rockville Centre, pleaded guilty to grand larceny in the second degree in Nassau County District Court for sending phony prescription records for reimbursement to Medicaid and the New York State Health Insurance Program (NYSHIP) from 2008 through 2011.

Davis, who currently resides in Lake Ariel, Pennsylvania, agreed to make full restitution of $231,919 on or before his sentencing on January 27.

The improper payments were exposed when the Comptroller examined around $7 million in claims paid to Davis. NYSHIP provides health insurance to some state and local government and school district employees and their families. The state Medicaid Program provides prescription drug coverage for enrollees.

* To read the two audit reports, visit: http://www.osc.state.ny.us/audits/allaudits/093013/12s11.pdfand http://www.osc.state.ny.us/audits/allaudits/093013/12s10.pdf

Halfmoon Town Supervisor Sentenced to 12 months in prison

Former Halfmoon Town Supervisor Melinda Wormuth was sentenced to one year and one day in prison as a result of her convictions for extortion and making a false statement, announced State Comptroller Thomas P. DiNapoli and United States Attorney Richard S. Hartunian and Andrew W. Vale, Special Agent in Charge of the Albany Division of the Federal Bureau of Investigation.

http://www.osc.state.ny.us/press/releases/dec15/121015b.htm?utm_source=weeklynews20151213&utm_medium=email&utm_campaign=121015brelease 


New York State Comptroller Thomas P. DiNapoli published the following audits:

State Education Department: United Cerebral Palsy Association – Rochester area: compliance with reimbursable cost manual

For the year ended Dec. 31, 2013, auditors identified $6,634 in costs charged to special education programs that did not comply with SED’s requirements for reimbursement. Auditors also questioned the appropriateness of $1,544 in costs for consultant services that did not comply with bidding requirements.

http://osc.state.ny.us/audits/allaudits/093016/14s75.pdf

New York City Department of Finance: Controls and Accountability of Court, Trust and Bail Funds

An initial audit issued in April 2014, determined that NYC Department of Finance’s Court Assets Department could not accurately account for court, trust and bail funds. The department also could not demonstrate that it applied the full, correct amount of interest to the Court and Trust accounts. In a follow-up, auditors found Finance officials have made progress in correcting each of the problems identified in the earlier report.  Of the eight recommendations prior recommendations six were implemented and two were partially implemented.

http://osc.state.ny.us/audits/allaudits/093016/15f16.pdf

United HealthCare Insurance Company of New York: Empire Plan Drug Rebate Revenue

An audit report, issued in September  2014, identified $694,227 in drug rebate and discount revenue that was not credited to the Department of Civil Service for the period Jan. 1, 2010 through Dec. 31, 2012. Auditors recommended that UHC remit to the department the $694,227 in rebate and discount revenue identified by the audit, and fully comply with contract provisions that require timely audit access to all documents and information deemed necessary. In a follow-up report, auditors found UHC officials made some progress in implementing the recommendations made in the initial audit report, including remitting $670,470 in additional drug rebate and discount revenue to the department.

http://osc.state.ny.us/audits/allaudits/093016/15f23.pdf

Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse.  New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236. Review prior cases at http://www.osc.state.ny.us/investigations/index.htm. 

Courts must defer to an agency's interpretation of its own regulations in its area of expertise

Courts must defer to an agency's interpretation of its own regulations in its area of expertise

Abramoski v New York State Educ. Dept., 2015 NY Slip Op 08880, Appellate Division, Third Department

Reacting to declining enrollment at West Park Union Free School District Number Two [West Park #2], a special act school district created by special legislation in 1973 for the purpose of educating residents of a facility for adolescent girls with emotional disabilities, the West Park School Board [Board] resolved to begin the process of dissolving West Park #2.

The Board notified the State Education Department [SED] of its decision to cease operation of West Park #2 and SED informed the Board of its various responsibilities during the close-down period, including calculating the District's close-down costs.

These costs included the cost of [1] educating students during the final year of operation and [2] any outstanding financial obligations. In response to a question concerning whether the costs of certain contractual obligations that the Board had to pay employees for their post-retirement health and dental insurance coverage for their respective lifetimes would be included in the tuition rate for the close-down period, SED informed the Board that the cost of such lifetime insurance coverage for the District's retirees would not be included in the close-down tuition rate.

Maureen Abramoski and a number of other employees [Abramoski] challenged SED’s determination with respect to excluding the cost of Abramoski's post-retirement medical and dental insurance in the close-down tuition rate of a special act school district. Abramoski ultimately initiated a “combined CPLR Article 78 proceeding and plenary action against SED and other named defendants seeking, among other things, [1] a review of SED's determination excluding the costs related to Abramoski’s lifetime post-retirement health and dental insurance coverage in the close-down tuition rate, [2] an order directing the reinstatement of such post-retirement health insurance and dental insurance coverage and [3] damages for breach of contract. Supreme Court dismissed Abramoski’s various motions and petitions concerning such benefits and she appealed.

The Appellate Division affirmed the Supreme Court rejection of Abramoski’s claims, explaining that a court's review of an administrative determination such as the one at issue in this action is limited to whether the determination was arbitrary and capricious, lacked a rational basis or was affected by an error of law. Here, said the court, SEC's determination was neither arbitrary nor capricious, was rational and was not affected by an error of law.

Further, said the Appellate Division, “courts must apply deference to an agency's ‘interpretation of its own regulations in its area of expertise,’" noting that 8 NYCRR 200.9(f)(1)(i) provides that the tuition rate at issue "shall include administration and direct care costs and the costs of operation and maintenance of instructional facilities." 

The court’s conclusion: Abramoski’s lifetime post-retirement health and dental insurance coverage should not be considered in the close-down tuition rate, sustaining SED’s interpreting of 8 NYCRR 200.9(f)(1)(i) to exclude long-term outstanding debt obligations "that were largely — if not entirely — unrelated to the costs of providing an education to the students attending the District during the relevant tuition period." SED’s interpretation, said the court, “is reasonable and is consistent with a statutory and regulatory scheme that evinces an intent to tailor tuition rates to those costs reasonably related to the special act school district's provision of services to students during the relevant tuition period.”

The Appellate Division also rejected Abramoski’s contention that SED violated her constitutional rights to due process and equal protection as being without merit, explaining that SED was not a party to the contracts that provided Abramoski’s rights to lifetime post-retirement health and dental insurance coverage. The fact that SED's determination may have incidentally affected Abramoski’s ability to collect such benefits, said the Appellate Division, does not support her allegations of constitutional violations.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08880.htm

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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