An appointing authority is not required to assign an individual to the position he or she desires or prefers

An appointing authority is not required to assign an individual to the position he or she desires or prefers
Webb v City of New York, 2016 NY Slip Op 04307, Appellate Division, First Department

Dawn Webb, a tenured teacher with a 15 year career, did not challenge the findings made in the course of a disciplinary arbitration hearing that she committed forty acts of misconduct, including insubordination, dereliction of duty, and incompetence, over a two-year time period at numerous different schools. Neither did she deny that she ignored the efforts of numerous supervisors and administrators to remedy her pedagogical deficiencies.

Notwithstanding Webb’s contention that she “became demoralized when she was assigned to the absent teacher reserve pool and did not have permanent assignment at one school,” the penalty imposed by the arbitrator was dismissal from her employment.

Webb filed a petition pursuant to CPLR Article 75 seeking a court order vacating the penalty of termination imposed by the arbitrator. Supreme Court dismissed her petition, which ruling was unanimously affirmed by the Appellate Division.

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, the Appellate Division said that “a court must uphold a sanction imposed [following a disciplinary hearing] unless it is so disproportionate to the offense that it shocks the conscience and therefore, constitutes an abuse of discretion.”

In this instance the court concluded that the penalty of termination of Webb’s employment was not unduly harsh or excessive given her failure to conform her behavior to the requirements of the job and her unwillingness to accept assistance or improve her performance.

As to Webb’s claim that her malfeasance or misfeasance in performing her duties were the result of her not having permanent assignment at one school, the Appellate Division observed that the appointing authority was not required to assign her to the position she desired.

Further, said the court, the record reflects that Webb was warned many times that her conduct would result in disciplinary action. Despite these warnings Webb failed to take steps to correct the deficiencies noted by numerous supervisors and administrators.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04307.htm

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Complying with procedural requirements in an appeal to the Commissioner of Education critical to the Commissioner’s considering the merits of the appeal

Complying with procedural requirements in an appeal to the Commissioner of Education critical to the Commissioner’s considering the merits of the appeal

Matter of the Board of Education of the Oceanside Union Free School District

Decisions of the Commissioner of Education, Decision No. 16,907

In this appeal the Petitioners asked the Commissioner of Education to remove each of the seven board members of the Board of Education of the Oceanside Union Free School District [Board] for alleged violations of School Board policies, breaches of their fiduciary duties as members of the Board, and of having conflicts of interest.  

The Commissioner addressed a number of significant procedural defects and critical jurisdictional issues in adjudication this appeal.

Although Petitioners did not provide an affidavit of service establishing service upon the Board, the affidavits of the district clerk indicated that she had accepted service on behalf of the Board. As there was no assertion that the appeal should be dismissed as to the Board for lack of proper service, the Commissioner declined to dismiss the appeal with respect to allegations against the Board.

Such was not the case, however, with respect to the Commissioner exercising jurisdiction over the individual members of the Board. Petitioners had failed to name any board member in the caption of the notice of petition or petition. Petitioners' failure to name each such board members constituted a failure to properly join as respondents each individual board member whose removal was sought, warranting dismissal of the application as against each such Board member. The Commissioner explained that “It is the notice of petition which alerts a party that he or she is required to appear and answer the allegations contained in the petition.”

Another defect noted by the Commissioner: Petitioners failed to personally serve any individual board members with a copy of the petition and notice of petition.

Service of pleadings and supporting papers set out in 8 NYCRR §275.8(a), of the Commissioner’s regulations, are applicable to proceedings seeking the removal of a school officer  [see 8 NYCRR §277.1] They provide, in pertinent part, that “A copy of the petition, together with all of petitioner’s affidavits, exhibits, and other supporting papers, except a memorandum of law or affidavit in support of a reply, shall be personally served upon each named respondent, or, if a named respondent cannot be found upon diligent search, by delivering and leaving the same at respondent’s residence with some person of suitable age and discretion ... or as otherwise directed by the Commissioner.”

Although the record contained seven affidavits of service indicating that seven copies of the petition in this matter were served on the district clerk in an attempt to effectuate service on each of the seven individual board members, the affidavit of the district clerk stated that she accepted service only on behalf of the board and that she was not authorized to accept service on behalf of the individual board members. 

Although Petitioners submitted an affidavit from their process server stating that the district clerk gave “specific assurance” that she was authorized to accept service on behalf of the individual board members, in a sur-reply the School District submitted a second affidavit from the district clerk indicating that she never informed the process server that she was authorized to accept service on behalf of the individual board members. 

As in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, the Commissioner said that in the light of the conflicting affidavits, she could not conclude that there was valid service on the individual board members. Further, said the Commissioner, the record does not indicate that any request for "alternate service" was made by the Petitioners.

As to the individual board members, as they were not personally served, the applications for their removal was denied. Notwithstanding this, if service upon the individual board members is deemed defective, the Commissioner said that she could “proceed with this petition as against the Board as an entity pursuant to Education Law §[310]” and as noted above, she declined to dismiss Petitioners’ appeal with respect to allegations against the Board.

As to the School District’s claim that Petitioners’ appeal should be dismissed as untimely as it was commenced more than 30 days after the actions to which Petitioners object, and Petitioners acknowledge that their appeal is untimely, Petitioners argued that “they were not advised that they had the right to appeal [the Board’s] determination and that they filed multiple complaints with Office of Civil Rights Compliance [OCR], erroneously believing that OCR was the only remaining option to address [the Board’s] alleged misconduct.  They then argued that “as pro se litigants, they are entitled to a liberal interpretation of the Commissioner’s regulations.”* 

The Commissioner commented that “except in unusual circumstances,” ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal and that the record contains no evidence that any unusual circumstances are present here.

Thus, ruled the Commissioner, “the appeal must be dismissed as untimely.”

Additionally, Petitioners contended that the Board’s was made in retaliation for Petitioners’ earlier complaint to the Office of Special Education Quality Assurance [SEQA], which, said the Commissioner, raised the identical issues and incidents in a complaint filed with OCR. OCR determined that the “district proffered a legitimate, non-retaliatory reason” for the School District's decision and that “the proffered reason was not a pretext for retaliation because the district’s actions were consistent with its policies.” Accordingly, the Commissioner ruled that having chosen that forum in which to litigate their claims, Petitioners have made an election of remedies and may not relitigate the same issues in a proceeding instituted pursuant to §310 of the Education Law.

Finally, the Commissioner noted that, as stated above, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.  

In addition to their request for removal of the board members, discussed above, Petitioners sought only that “The Commissioner exercise authority to review and approve all manner of business proposed by the Board until such time as the Commissioner is satisfied that the board is acting rationally and prudently and fulfilling its fiduciary responsibilities to protect public assets and promote the educational needs of the District....”

However, an appeal to the Commissioner is appellate in nature and does not provide for investigations, nor does the Commissioner have the authority to act as an overseer over all board business or to appoint such an overseer with the power to substitute his or her opinion and determination for that of the board.

* On this point the Commissioner noted that Petitioners are both practicing attorneys and thus are held to a higher standard than non-attorney pro se litigants.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume55/d16907

Absent a statutory or negotiated administrative hearing procedure, an appointing authority may delegate decision-making authority to the hearing officer

Absent a statutory or negotiated administrative hearing procedure, an appointing authority may delegate decision-making authority to the hearing officer

McKay v Village of Endicott, 2016 NY Slip Op 04085, Appellate Division, Third Department

The Village of Endicott had been paying Firefighter Joseph W. McKay General Municipal Law §207-a(1)* benefits while he was unable to work after he had suffered an "on the job" injury to his lower back.

In March 2010, McKay underwent  surgery. The Village told McKay that because his "neck condition" was "not related to the work injury," his General Municipal Law §207-a benefits were "terminated." McKay appealed and ultimately the hearing officer appointed by the Village determined that McKay was entitled to GML §207-a(1) benefits because there was a causal relationship linking the lower back injury to the accident and no evidence that McKay’s lower back had improved to the point that, but for the intervening cervical spine injury, he would have been able to return to work as a firefighter.

While that hearing was pending, McKay retired and commenced receiving performance of duty disability retirement benefits and the Village discontinued McKay’s GML §207-a(1) benefits. In November 2011, at the Village's request, McKay applied for supplemental benefits authorized by GML §207-a(2).**

In March 2012, McKay was examined by an orthopedist retained by the Village. The orthopedist opined that McKay’s 2008 back injury "would not have prohibited [him] from performing his duties as a firefighter and EMT." In May 2012, the Village denied McKay's "application" for GML §207-a(2) benefits. McKay then commenced a CPLR Article 78 proceeding challenging the Village’s determination. Supreme Court “partially granted [McKay’s petition] finding that the Village could not terminate his General Municipal Law §207-a benefits without a hearing. The Appellate Division sustained the Supreme Court’s ruling.***

In August 2012, the Mayor of the Village wrote to the Hearing Officer to confirm his appointment "in the [GML] §207-a(2) appeal case." At the subsequent 2013 hearing to consider McKay's November 2011 application for §207-a(2) benefits, the parties testified and in February 2014, the Hearing Officer issued a decision in which he characterizing the "issue presented" to be whether McKay was entitled to General Municipal Law §207-a(2) benefits as a result of the April 2008 lower back injury.

Noting that he was obligated to "uphold" the Village's determination to deny the benefits as long as it was supported by substantial evidence, the Hearing Officer issued "findings" that McKay was entitled to General Municipal Law §207-a(2) benefits based on the "volume of medical evidence" that supported the conclusion that McKay  [1] was "permanently incapacitated from performing his duties, [2] that his disability [was] permanent, and [3] that his disability [was] causally related to the performance of his duties."

Specifically, the Hearing Officer "determin[ed] that [McKay's] workplace injury on April 8, 2008 [was] the cause of his permanent inability to work." The Mayor, however, rejected the Hearing Officer's awarding McKay GML §207-a(2) benefits, finding that substantial evidence supported the Village's May 2012 determination denying McKay with such benefits.

McKay then commenced a CPLR Article 78 proceeding seeking a court order annulling the Mayor's determination. Supreme Court determined that the Village was not bound by Hearing Officer's decision and then transferred the proceeding to the Appellate Division.

The Appellate Division said that core issue was whether the Hearing Officer's February 2014 decision was a final and binding determination, noting that "it has long been recognized that . . . General Municipal Law §207-a . . . [was] enacted for the benefit of firefighters . . . who sustain disabling injuries in the line of duty, [and] the statutory provisions are to be liberally construed."

However, said the court, the statute does not set out any administrative procedure for determining a firefighter's entitlement to benefits and a municipality may promulgate or negotiate such a procedure provided that it comports with administrative due process. Accordingly, said the Appellate Division, the initial question presented is what procedure, if any, did the Village promulgatge.

The Appellate Division observed that [1] there was no negotiated procedure in place nor [2] was any written policy that governed the termination of existing General Municipal Law §207-a benefits was introduced at the hearing. Rather, said the court, the record indicated that the Village “simply opted to appoint a hearing officer — first, in 2010 to decide [McKay’s] entitlement to General Municipal Law §207-a(1) benefits, and then, in 2012, to decide [McKay’s] entitlement to General Municipal Law §207-a (2) benefits.”

Considering the record, the Appellate Division concluded that Supreme Court's initial finding that the Village was not bound by the Hearing Officer's determination was in error. The court explained that contrary to the Village’s argument, without any statutory or negotiated prohibition or direction, the Village was authorized to delegate its decision-making authority to the Hearing Officer.

Further, said the court, that the Mayor did, in fact, appoint the Hearing Officer to make a final determination and not a recommendation "is apparent from the record before us." Neither the 2010 nor the 2012 appointment was in any way qualified so as to limit the respective Hearing Officers to an advisory role, i.e., to make and submit findings of fact and a recommendation to the appointing authority regarding the disposition of these matters.

Referring to its earlier decision in which it determined that the Village could not terminate benefits payable to McKay pursuant to GML §207-a(2) without a hearing, the court said that “Given this procedural due process protection,” it considered such a hearing to be a de novo assessment of whether McKay sustained a permanent disability as a result of the 2008 work incident.

The court then opined that the Hearing Officer's observation that he was required to uphold the Village's decision if that decision was supported by substantial evidence misstated the standard for, as a matter of due process, in this instance it was the Hearing Officer's charge to decide the permanency issue in the first instance based on a fully developed record. The Appellate Division said that the Hearing Officer did so, after assessing the credibility of the witnesses and weighing the testimony. Further, the hearing transcript before the Hearing Officer and the post-hearing submissions further confirmed that neither the Hearing Officer nor the parties considered the Hearing Officer to be serving in an advisory capacity.

As the Mayor elected to "unilaterally and abruptly" change the Hearing Officer's decision to a recommendation, rather than comply with the protocol outlined in the appointment letter, the Appellate Division concluded that the Mayor's February 2014 determinations must be annulled. 

The court then observed that “[i]f dissatisfied with the Hearing Officer's determination, the Village's remedy was to challenge that determination in a CPLR Article 78 proceeding.

* General Municipal Law §207-a(1) provides for the payment of full wages and medical expenses until a disability has ceased.

** General Municipal Law §207-a(2), in pertinent part, provides that [1] the payment of the firefighter’s full amount of regular salary or wages pursuant to §207-a(1) shall be  discontinued upon the firefighter receiving a retirement benefit for disability incurred in performance of duty pursuant to RSSL §363-c and [2]  the employer shall supplement such the disability retirement allowance by paying the firefighter the difference between the amount of such disability retirement allowance and the amount of his or her regular salary or wages, including longevity pay and negotiated salary increases, if any, until such time as the firefighter shall have attained the mandatory service retirement age applicable to him or her or shall have attained the age or performed the period of service specified by applicable law for the termination of his or her service.

*** McKay v Village of Endicott, 113 AD3d 989, Motion for leave to appeal denied, 23 NY3d 1015.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_04085.htm

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