Administrative determination annulled after being found to be arbitrary and capricious and in violation of the relevant regulation

Administrative determination annulled after being found to be arbitrary and capricious and in violation of the relevant regulation
Niang v New York City Dept. of Educ., 2016 NY Slip Op 01770, Appellate Division, First Department

The New York City Department of Education permanently revoked Babacar Niang’s certification to drive a school bus because he failed to submit to a drug test on the day on which he was involving in an accident. The Appellate Division unanimously annulled, the Department’s decision, reinstated Niang’s certification and  remanded the matter “for a determination of incidental damages, if any.”

The Appellate Division, noting that the appropriate test in this action was  “the arbitrary and capricious standard of review,” held that the Department’s determination revoking Niang's certification to drive a school bus was “arbitrary and capricious and contrary to its own regulation.”

The court explained that Chancellor's Regulation C-102, reflecting its new policy, does not provide for revocation where a bus driver fails to take a nonrequired drug test. The C-102 provisions requiring a postaccident test explicitly apply only when the accident involves loss of life, bodily injury, disabling damage to the vehicle, or after a third accident within any twelve month period. However, said the Appellate Division, that provisions does not apply here in that it was Niang’s first accident and that no one was injured and no vehicle was disabled.

The decision also notes that Niang “took a drug test within 24 hours and that the test was negative.”

Accordingly, said the court, Niang “is entitled to a hearing to determine whether any incidental damages resulted” as a result of the Department’s revocation of his certification to operate a school bus.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01770.htm

Selected reports issued by the Office of the State Comptroller during the week ending March 19, 2016

Selected reports issued by the Office of the State Comptroller during the week ending March 19, 2016

Click on text highlighted incolor to access the entire report

Comptroller DiNapoli and A.G. Schneiderman Announce Conviction of Atlanta Resident in Pension Fraud Case
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the conviction and sentence of Richard L. Cook, III, 58, a resident of Atlanta, for the crime of Grand Larceny in the Third Degree, for stealing over $204,000 in state pension benefits issued to his deceased mother.

State Comptroller Thomas P. DiNapoli announced his office completed audits of the following school districts and BOCESs

Brushton-Moira Central School District, Financial Condition

Clinton-Essex-Warren-Washington Board of Cooperative Educational Services - Payroll

Clyde-Savannah Central School District - Financial Condition

Oneida-Herkimer-Madison Board of Cooperative Educational Services - Claims Payments

Patchogue-Medford Union Free School District - 2016-2017 Proposed Budget

Ravena-Coeymans-Selkirk Central School District - Payroll

New York Stateschool aid trends

Over the past ten years, state aid to school districts has increased $6 billion to $23.3 billion in 2015-16, according to a report issued today by State Comptroller Thomas P. DiNapoli which examined school aid patterns and trends in New York.

“School aid is the largest single state-funded expenditure within the budget,” said DiNapoli. “As the start of a new fiscal year approaches, this report is intended to provide policymakers and the public additional information on education funding in New York.”

Over the past decade, school aid has averaged 23.6 percent of state-funded expenditures. The Division of the Budget projects this share to increase to 25.6 percent over the next three years.

The largest component of state school aid is Foundation Aid, a statutory formula enacted in 2007 as the result of a ruling by the State Court of Appeals in the Campaign for Fiscal Equity lawsuit. After the ruling, the state committed to spend an additional $5.5 billion, using a new, transparent funding formula phased in over four years, adjusting aid for differences in both capacity of districts to raise local taxes and costs to provide services.

Following increases of just over $1 billion in school years ending in 2008 and 2009, state budgets during and just after the recession froze Foundation Aid. Starting in the 2012-13 state budget, Foundation Aid distributions increased by between $112 million and $428 million per school year.

Current funding for Foundation Aid is $15.9 billion, compared to the original projection of $18.1 billion by the fourth year of the program.

DiNapoli’s report also shows that starting in 2010-11, the state reduced school aid from levels otherwise driven by statutory formulas by $1.4 billion. These reductions – known as the Gap Elimination Adjustment, or GEA – grew to $2.6 billion in SY 2011-12. The GEA helped New York to close a multi-billion dollar budget deficit by assigning a portion of the state’s funding shortfall to all school districts as reductions in state aid.

In each year since 2012-13, the state has reduced the impact of the GEA by including a separate formula for unrestricted “GEA Restoration Aid” in the budget. This formula has had different calculations in each year, but the net impact over the past four years has been to reduce the GEA’s effect on high-need districts more quickly than on average or low-need districts.

For the upcoming 2016-17 state fiscal year, the Executive Budget proposes a total school funding increase of $991 million, including $266 million in Foundation Aid and the elimination of the GEA entirely for 200 mostly high need districts and reducing it by at least 30 percent for the remaining districts.

Local revenues, predominantly property tax collections, are the largest source of school funding. The relative share of school funding by source has also fluctuated in recent years, with the state’s share peaking at 39.1 percent in 2008-09 and dropping to 33.7 percent by 2011-12. Last year, the state’s share was 35.9 percent, consistent with the average for the ten most recent years, while local revenues made up 59.7 percent of total funding last year.

DiNapoli’s report also highlighted:

• Total state aid funding for schools is projected to climb to nearly $28 billion by 2019-20;

• Expense-based aids – state funding for items such as textbooks, student transportation and the construction of school facilities – have not seen major formula changes during the last ten years;

• In 2015-16, lottery aid is expected to total $3.2 billion, approximately 13.8 percent of overall state expenditures for school aid; and

• Revenue generated from new casinos that will be dedicated to school aid is expected to reach $168 million in 2019-20.

For more information, read the full report: New York State School Aid: Two Perspectives:
http://www.osc.state.ny.us/localgov/pubs/research/schoolaid2016.pdf

Distinguishing between residence and domicile

Distinguishing between residence and domicile

Rosseychuk (City of New York--Commissioner of Labor), 2016 NY Slip Op 01885, Appellate Division, Third Department

An individual may simultaneously have a number of residences but he or she has only one domicile at a time regardless of the number of residences involved. The term “domicile” means the place where a person has his or her permanent home to which he or she intends to return if living or having a residence at a different location. 

Zhanna Rosseychuk, as an employee of the New York City Office of Child Support Enforcement [Office], was required to become a resident of the City within 90 days of being hired and to maintain such residency.* The Office discharged Rosseychuk after it learned that that she did not comply with this residency requirements.

Rosseychuk’s application for unemployment insurance benefits was denied by an Administrative Law Judge [ALJ] on the ground that she voluntarily left her employment without good cause inasmuch as she provoked her discharge by not complying with the employer's residency policy. The Unemployment Insurance Appeal Board, without resolving the issue of whether Rosseychuk was in full compliance with the Office's residency policy, reversed the ALJ’s decision on the ground that the voluntary transgression prong of the doctrine of provoked discharge had not been established so as to find that Rosseychuk had voluntarily left her employment without good cause. The Office appealed the Board’s decision.

The Appellate Division said that a "Provoked discharge . . . is a narrowly drawn legal fiction designed to apply where an employee voluntarily engages in conduct which transgresses a legitimate known obligation and leaves the employer no choice but to discharge him [or her]." Whether an applicant for unemployment insurance benefits voluntary left his or her of employment without good cause by provoking his or her discharge is a factual determination for the Board to determine.

Rosseychuk testified that she began living with her cousin in an apartment in New York Cityin an attempt to comply with the Office's residency requirements, as well as to accommodate her school schedule. Rosseychuk testified that she gave her cousin money to live in the apartment and to help offset expenses, that she received mail at that address, including bank account and credit card statements, and that she paid pays New York City income taxes. She also testified that, because she did not fully understand the residency requirement, she asked both her supervisor and the employer's personnel department if she was considered to be in compliance with the necessary requirement; those inquiries, however, went unanswered.

Although Rosseychuk spent time with her husband in an apartment outside New York City, the Office acknowledged that "an individual could maintain more than one residence, even if one was outside New York City, and still be in compliance with its residency requirement."

The Appellate Division ruled that “Under these circumstances, substantial evidence supports the Board's finding that [Rosseychuk] did not voluntarily engage in conduct that transgressed the [Office’s] mandate so as to find that she provoked her discharge.

* NYC Administrative Code §12-119 Definitions, provides: “As used in sections 12-120 and 12-121 of this subchapter:

“a. The word "residence" means domicileand the word "resident" means domiciliary[emphasis supplied].

“b. The term "city service" means service as an employee of the city or of any agency thereof other than service in a position which is exempted from municipal residence requirements pursuant to the public officers law or any other state law.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01885.htm

Tests used by court to determine if a public officer or employee is entitled to “qualified immunity” when he or she is being sued for damages in a civil action

Tests used by court to determine if a public officer or employee is entitled to “qualified immunity” when he or she is being sued for damages in a civil action

Lawson v. Hilderbrand et al, USCA, 2^nd Circuit, 15-653-cv [Summary Order*]

Timothy Hilderbrand and his co-defendants appealed a United States District Court’s denial of their motion for summary judgment on their theory that they were entitled to qualified immunity on “Lawson’s search and seizure claims” in the first count of his complaint.** 

The Second Circuit Court of Appeals, citing Harlow v Fitzgerald, 457 US 800, said that qualified immunity may be claimed by public officers and employees in civil suits seeking damages “insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.”

The court then explained that although an appeal of a denial of a motion for summary judgment typically is not permitted as that decision is not a “final judgment,” the collateral order doctrine permits an immediate appeal of a denial of a motion for summary judgment on the issue of qualified immunity “where the district court denied the motion as a matter of law.”*** However, such an appeal is available to defendants only the defendants “accept as true [the] plaintiff’s version of the facts for purposes of the appeal.”

According to the decision, police entered Duncan Lawson’s home with his consent. When that consent was revoked, the Second Circuit said that “it was objectively reasonable” for the police officers to believe that “exigent circumstances made their continued presence in the house, and their confinement of the residents to the living room, lawful.”

The Second Circuit said that “When a government official charged with violating federal constitutional rights seeks summary judgment on the ground of qualified immunity, the Court may first consider whether there was a “violation of clearly established law before turning to the more difficult question whether the relevant facts make out a constitutional question at all.”

In this instance the court concluded that “the lack of clearly established law” barring the actions the police officers involved entitles them to qualified immunity for their actions.

In contrast, certain public officials are entitled to “absolute immunity.” Absolute immunity is typically limited to judges, prosecutors, legislators, and the highest executive officials when acting within their authority. Absolute immunity also has been granted to lawyers in some situations.

* Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by federal rule of appellate procedure 32.1 and the 2^nd Circuit’s Local Rule 32.1.1. When citing a summary order in a document filed with the Second Circuit, a party must cite either the federal appendix or an electronic database (with the notation “summary order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

** Lawson v. Hilderbrand, 88 F. Supp. 3d 84

*** The doctrine allows appeals from interlocutory rulings (i.e., rulings preceding a final judgment) so long as those rulings conclusively decide an issue separate from the merits of the case [See Cohen v Beneficial Industrial Loan Corp., 337 U.S. 541].

The 2^nd Circuit’s decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/93cb634e-f589-4ce9-99c2-1d5c59846bb/16/doc/15-653_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/93cb634e-f589-4ce9-99c2-81d5c59846bb/16/hilite/

New national study reports “Saving for College” 529 plan costs “state by state”

New national study reports “Saving for College” 529 plan costs “state by state”

Source: Study by Joseph Hurley, Savingforcollege.com

This 2016 study notes that New York's 529 College Savings Program “offers the lowest-cost 529 plan among plans that charge the same fee across the entire menu of investment options. Its total 10-year costs are $205, representing an annual fee of only 0.16%.” Also, New York does not charge 529 program participants an annual fee.

Highlights from the study are posted on the Internet at:

 http://www.savingforcollege.com/articles-professional/finding-the-lowest-cost-529-savings-plans?utm_source=SFC_ProUpdate&utm_medium=SFC_ProUpdate&utm_campaign=SFC_ProUpdate_March012016

The complete study is posted on the Internet at:

http://www.savingforcollege.com/529_fee_study/index.php

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Employee’s disciplinary history for rudeness and insubordination considered in determining disciplinary penalty to be imposed

Admin. For Children’s Services v Berrios, OATH Index #124/16

Giselle Berrios, a child protective specialist, employed by the Administration for Children’s Services [ACS], was served with disciplinary charges alleging that she failed to appear at family court hearing concerning a case under her supervision at the time scheduled and raising her voice at an agency attorney when questioned about the case.

Berrios admitted to having forgotten to appear at family court, but denied yelling at the agency attorney.

ALJ Astrid B. Gloade found that Berrios' testimony was not credible. The ALJ noted that the case had been on the court’s calendar almost every week because the judge was closely monitoring ACS’s response to numerous concerns that had been raised about the family’s well-being.

In contrast, the ALJ found that the attorney's testimony was corroborated by a contemporaneous telephone complaint and an e-mail to Berrios' supervisor after the incident.

In addition, Judge Gloade noted that “even were I to credit [Berrios’] explanation [that she forgot the court appearance], her forgetfulness does not excuse her failure to appear in court.”

Given the nature of the proven misconduct, as well as Berrios’ disciplinary history for rudeness and insubordination, the ALJ recommended that Berrios be suspended without pay for 55-days.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16-124.pdf

______________________

A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

______________________  

Use of video surveillance recording in disciplinary actions

Use of video surveillance recording in disciplinary actions

NYC Dept. of Environmental Protection v Gaicia, OATH Index #211/16

With the expanding installation of video surveillance equipment, video tape recordings are being used with increasing frequency in disciplinary actions.

The NYC Dept. of Environmental Protection [Department], alleged that one of its employees, Supervising Sewage Treatment Worker Nicholas Gaicia, had an oral altercation with a co-worker that also involved Gaici's throwing chairs and slamming doors.

The Department introduced a video surveillance recording into evidence, contending that  the video the showed the exchange between Gaicia and his co-worker. It also presented the testimony of three employees in support of the charges it had filed against Gaicia.

Gaicia testified in his defense and called four other employees as witnesses testify on his behalf.

OATH Administrative Law Judge [ALJ] John B. Spooner found that the video tape and the testimony presented by the employer failed to support the “incredible assertion that Gaicia was threatening” his co-worker. The ALJ also found that the allegations that Gaicia had thrown chairs and slammed doors set out in the Department's notice of discipline were not corroborated by the Department’s witnesses.

ALJ Spooner recommended that the disciplinary charges brought against Gaicia be dismissed and that he be reimbursed for the time he was suspended from his position without pay.   

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/16_cases/16-0211.pdf

__________________

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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Cybercriminals hold computer files hostage for ransom

Cybercriminals hold computer files hostage for ransom

Source: Governing the States and Localities

Tod Newcombe, writing for Governing the States and Localities, points out the growing threat of cybercrime and just how vulnerable public entitites are to it.

As an example, Mr. Newcombe reports that “In June 2014, an officer with the Durham, N.H., Police Department opened what she thought was a digital fax attached to an email about an investigation she was working on. Instead, it was a type of malicious software that infected files throughout the entire police department’s network of computers. By the next morning, the entire system was in serious trouble.

“The officer had accidentally downloaded an extortion malware program popularly known as ransomware. It encrypts a computer’s files (meaning they can only be accessed by the cybercriminals) and then sends victims a digital ransom note, demanding money to decrypt them.”

The full text of Mr. Newcombe’s article is posted on the Internet at:

http://www.governing.com/columns/tech-talk/gov-ransomware-police-cybsersecurity.html?utm_medium=email&utm_source=Act-On+Software&utm_content=email&utm_campaign=Federal%20GMO%20Labeling%20Bill%20Would%20Trump%20State%20Laws&utm_term=Hackers%20Hold%20Police%20Files%20Hostage%20for%20Ransom

Professional Career Opportunities (PCO) eligible lists

Professional Career Opportunities (PCO) eligible lists

Source: NYS Dept. of Civil Service, Scott DeFruscio, Director of Staffing Services

The New York State Department of Civil Service has published new policies for agencies that choose to canvass the Professional Career Opportunities (PCO) eligible lists by email. These policies are designed to improve  timeliness and efficiency when canvassing a PCO eligible list.

Advisory Memorandum updates and replaces the section on Email Canvasses No. 14-03. and is posted on the Internet at: https://www.cs.ny.gov/ssd/pdf/am16-01.pdf

A public educational institution is not an “education corporation” within the meaning of New York State’s Human Rights Law

A public educational institution is not an “education corporation” within the meaning of New York State’s Human Rights Law

Garcia v City Univ. of N.Y., 2016 NY Slip Op 01271, Appellate Division, First Department

Supreme Court dismissed Minerva Garcia's disability discrimination claims brought against the City University of New York pursuant to New York’s Executive Law §296(4), the State’s Human Rights Law (HRL).

The Appellate Division, citing North Syracuse Central School District v New York State Division of Human Rights, 19 NY3d 481, sustained the lower court’s ruling explaining that the City University of New York is a public educational institutions*and not "education corporation[s] or association[s]" within the meaning of Executive Law §296(4).

In North Syracuse Central School District the Court of Appeals said that the issue before it was whether a public school district is an "education corporation or association" as contemplated by Executive Law §296(4).”  The court concluded that it was not and, therefore, the New York State Division of Human Rights (SDHR) “lacks jurisdiction to investigate complaints against public school districts under that provision.”

Although SDHR asked the court to “liberally construe the ‘general purpose’ of the Human Rights Law, which is to ‘eliminate and prevent discrimination . . . in educational institutions’ [citing Executive Law §290(3)], and conclude that a public school district is an ‘education corporation or association,’” the court declined, stating that the Division’s argument overlooked a basic premise: “there must first be an underlying directive in the statute before this Court can apply such a construction”  and that  “it is evident from the legislative history that the term ‘education corporation or association,’ the origins of which can be traced to the Tax Law, refers to only private, non-sectarian entities that are exempt from taxation under [Real Property Tax Law] Article 4.”

The Appellate Division then noted:

1. Even if Ms. Garcia's were able to assert her claims under the HRL her complaint would have been dismissed as she did not make out a prima faciecase of unlawful disability discrimination having failed to present any medical evidence showing that she suffered from bipolar disorder, depression, or any other cognizable disability; and

2. Ms/ Garcia's proposed disability discrimination claims under the Americans with Disabilities Act (ADA) were similarly without merit as ADAclaims "are governed by the same legal standards" as disability discrimination claims under the HRL.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01271.htm