Individual cannot be found guilt of misconduct not charged in the notice of discipline

Individual cannot be found guilt of misconduct not charged in the notice of discipline
Wise v New York City Human Resources Admin., 2016 NY Slip Op 01775, Appellate Division, First Department

Iris Wise was terminated from her position after being found guilty of participating in a scheme to improperly transfer cases to the East End Job Placement Center in violation of New York City’s Human Resources Administration Code of Conduct §III(1), (4), (11) and (37) and other laws and directives.

Considering Wise’s appeal, the Appellate Division ruled that the finding that Wise violated Code of Conduct §III(11) must be vacated. The court explained that Wish had not been charged with violating that section and thus had no reasonable opportunity to respond to such a charge.

In contrast, the court said that with respect to the remaining charges, substantial evidence in the form of testimony at the hearing, admissions and documentary evidence, including investigation reports, case transfer documents, lists, emails, and regional performance results, supported the administrative determination by establishing that Wise, “a deputy director ….  knowingly and actively participated with her immediate supervisors in a scheme to transfer job placement cases from other agency centers …. so as to satisfy the agency's job-placement goals for East End Centerand to reduce agency pressure on the center arising from years of under-performance.”

As to the penalty imposed by the appointing authority, termination, the court said that “under the circumstances,” such a penalty did not shock one's conscience or sense of fairness, citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01775.htm

___________________

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

___________________  

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