ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

December 30, 2016

The Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction.


The Commissioner of Education will dismiss an application or appeal involving an officer and, or, a member of the staff of a school district for improper service of the complaint and, or, lack of subject matter jurisdiction 
Decisions of the Commissioner of Education, Decision #17,002

Addressing the issue of "improper service" of the complaint, the Commissioner explained that the application must be dismissed because there was no personal service of the application on officers and employee as necessary parties where the rights of such an officer or staff member would be adversely affected by a determination of an appeal in favor of a applicant.

With respect to issues in the application or appeal involving subject matter jurisdiction of the Commissioner:

1. To the extent that an application alleges discrimination on constitutional grounds, an appeal to the Commissioner is not the proper forum to adjudicate issues of constitutional law or to challenge the constitutionality of a statute or regulation and the complaint must be presented to a court of competent jurisdiction if otherwise timely.

2. To the extent that an application raises claims that do not arise under Education Law, such as defamation, the Commissioner of Education lacks jurisdiction over such claims, which may be raised in a court of competent jurisdiction if otherwise timely.

3. To the extent that an appeal to the Commissioners pursuant to Education Law §310 alleges claims under Title VI of the Civil Rights Act of 1964 or the Americans with Disabilities Act, an appeal to the Commissioner is not the appropriate forum to adjudicate such claims.

4. To the extent that the application asks the Commissioner to provide for an investigation concerning the issues giving rise to the application, a petition submitted to the Commissioner for adjudication is appellate in nature and does not provide for investigations.

5. To the extent that applicant seeks an award of monetary damages, the Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal filed pursuant to Education Law §310.

6. To the extent that the applicant seeks an apology from an officer of staff member, the Commissioner lacks the authority to order a member of a board of education or a school district employee to issue an apology.

Finally, as relevant in this appeal, the decision notes that in the interest of judicial economy, the Commissioner of Education will not entertain an appeal while there is an action pending in another forum involving the same issues and seeking similar relief.



December 29, 2016

The Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry


The Fifth Amendment's bar against “self-incrimination” does not protect an individual who lies in the course of an official inquiry 
2016 NY Slip Op 08368, Appellate Division, Second Department

In this proceeding pursuant to CPLR Article 78 to review the appointing authority’s adopting a Civil Service Law §75 hearing officer's findings and recommendation as to the discipline to be imposed, the Appellate Division sustained the appointing authority’s finding the employee [Petitioner] guilty of certain charges of misconduct and incompetence filed against him and imposing the penalty of dismissal of the Petitioner from his employment.

Among the charges filed against Petitioner was that, in response to a request for an account concerning an incident, Petitioner conceded made a false statement to his superior.

In sustaining the appointing authority’s action, the Appellate Division noted that the privilege against self-incrimination set out in the Fifth Amendment of the U.S. Constitution was not a bar to the disciplinary charge alleging that Petitioner had made the false statement because he was not required to waive his immunity with respect to the use of the statements in a criminal proceeding.

The court, citing Brogan v United States, 522 US 398, explained that "neither the text nor the spirit of the Fifth Amendment confers the privilege to lie." Similarly, in In Matter of Mathis (Commissioner of Labor), 110 AD3d 1412, the Appellate Division held that an employee’s constitutional right against self-incrimination does not give the individual the right to answer questions untruthfully. 

As to the penalty imposed on Petitioner, termination from his position, the Appellate Division said that a court "may set aside an administrative penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law." In this instance, said the court, the penalty of dismissal is not so disproportionate to the offenses as to be shocking to one's sense of fairness.”

Further, there may be unintended consequences if an employee is not truthful in responding to job related inquiries in an effort to avoid disciplinary action. The U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct than might otherwise have been imposed. Although only federal employees were involved, the ruling may influence cases involving state and local employees.
______________

The Discipline Book - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html
______________

December 28, 2016

Difficulties result following the appointment of a teacher to an “unauthorized tenure area”


Difficulties result following the appointment of a teacher to an “unauthorized tenure area”
Decision of the Commissioner of Education, Decision No. 17,011

A teacher [Teacher] appealed the decision of the Board of Education that resulted in his being “excessed” following the abolishment of his position by the Board.  The Commissioner held that his appeal must be sustained in part.

Teacher held permanent certification as a teacher of English 7-12 and a gifted education extension. He was permanently appointed to the position subject to his satisfactory completion of a probationary period and ultimately received tenure in that "area" effective September 1, 2007.
 
Teacher’s position was abolished effective June 30, 2013 whereupon he challenged his being laid-off, contending that the district had “improperly appointed him to an unauthorized tenure area, in violation of Part 30 of the Rules of the Board of Regents” and he should have been accruing seniority credit in his area of certification pursuant to 8 NYCRR 30-1.2(b) of the Rules of the Board of Regents and should be retained by the district as he is not the least senior teacher in the 7-12 English tenure area. 

Accordingly, Teacher asked the Commissioner to annul the district’s termination of his employment and direct the school board to reinstate him to a position in the English 7-12 tenure area, with back pay, benefits and seniority.

The school district, conceding that it had improperly assigned Teacher to an unrecognized tenure area, argued that Teacher “did not spend more than 40 percent of his time performing duties in his certificate area or in instructional support services and that he failed to meet his burden of proof.” In addition, the school district contended that Teacher “failed to mitigate his damages.”

The Commissioner said that in the event a board abolishes a position, “the services of the teacher having the least seniority in the system within the tenure [area] of the position abolished shall be discontinued” (Education Law §3013[2]).  Therefore, the district must first identify the tenure area for the position to be abolished.”

In this instance, however, the school district mistakenly appointed an educator to a non-existent or incorrect tenure area. Accordingly, said the Commissioner, the school district "had an obligation to correct that mistake by retroactively appointing that teacher to a position that most closely resembles the recognized tenure area with the duties the teacher is actually performing.” In so doing, the Commissioner explained that “it is the actual nature of the abolished position that must be considered.  The certification, proper or improper, and the tenure status of the holder of the position, correctly determined or otherwise, are not controlling.”

On the record before her, the Commissioner said that it was unclear whether the school district ever conducted a detailed analysis of the duties of the position to be abolished.  On the other hand, and conceding that he has never taught in the academic tenure area of English 7-12, Teacher contended that he was spending more than 40 percent of his time providing instructional support services, and under 8 NYCRR §30-1.2(b)(2) he was entitled to credit for tenure and seniority “in a tenure area for which he holds the proper certification”.  Further, Teacher argued that since he was certified in English 7-12, the school district was obligated to assign him to the English 7-12 tenure area, in which tenure area he was not the least senior teacher. 

In contrast, the school district denied the representation that the Teacher’s job duties involved providing instructional support services for a substantial portion of his time, and asserted that he was appointed and served as a teacher of core academic subjects to gifted and talented students in grades three through six.

The Commissioner observed that “it is unclear whether [the school district] ever affirmatively determined the authorized tenure area(s) to which [Teacher’s] position should be reclassified and then determined seniority within such tenure area(s) as it is required to do. Rather, the school district’s superintendent “erroneously asserts that [the school district] could not reclassify [Teacher] to an elementary or middle school tenure area because he did not hold certification to teach in those tenure areas, and therefore was not legally qualified for such position. However, the Commissioner explained that “a district may not circumvent Education Law §3020-a by excessing a tenured, certified teacher based on their lack of certification to teach in the tenure area of an abolished position.”

The Commissioner ruled that, based on the record before her, Teacher had met his burden of demonstrating that at least 40 percent of his time was spent in the elementary tenure area (teaching gifted and talented instruction to elementary school students). Further, noted the Commissioner, Teacher may also be entitled to credit for his service in the English 7-12 tenure area within the exception created by 8 NYCRR §30-1.2(b)(2) for instructional support services.

Further, the Commissioner determined that the school district failed to refute Teacher’s assertions and the many affidavits submitted on Teacher’s behalf indicating that he taught gifted and talented education to elementary/middle school students for 40 percent or more of his time and/or spent more than 40 percent of his time performing instructional support services as defined in 8 NYCRR 30-1.1 of the Rules of the Board of Regents. 

However, since it was unclear from the record what percentage of Teacher’s duties was spent performing instructional support services from the 2005-2006 school year until June 30, 2013 and what percentage of his time was spent performing duties in the elementary tenure area (teaching gifted and talented instruction to elementary school students), when Teacher’s position was abolished, the Commissioner ruled that it was  appropriate to remand this matter to school district for a determination of Teacher’s seniority rights with respect to performing instructional support services in the certification area of English 7-12 and Teacher’s seniority rights with respect to performing services in the elementary tenure area, and based on his seniority in these two areas, his right to reinstatement as a teacher in the English 7-12 tenure area and/or elementary tenure area on June 30, 2013, “in accordance with 8 NYCRR 30-1.1 of the Rules of the Board of Regents and this decision.”

____________________________

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

December 27, 2016

Employee suspended for one year without pay after failing to comply with school directives


Employee suspended for one year without pay after failing to comply with school directives
2016 NY Slip Op 08440, Appellate Division, First Department

The Appellate Division unanimously confirmed the decision of the appointing authority that found a faculty member [Petitioner] guilty of certain charges of misconduct and imposed the penalty of a one-year suspension without pay following a disciplinary hearing that was conducted in absentia.

Noting that Petitioner “was afforded the opportunity to appear at the hearing, which he chose not to attend …,” the court rejected Petitioner’s argument that he was denied due process. The Appellate Division said that substantial evidence supported the appointing officer’s finding that Petitioner engaged in misconduct when he disregarded a school directive that he cease contact with certain faculty members and that he failed to comply with a school directive that he meet with a representative of the Office of Student Affairs.

Further, said the court, the “record belies Petitioner's contention that he was denied due process” in that the charges preferred against him were specified in a two-page letter containing sufficient factual and legal detail to apprise him of the misconduct of which he was accused and the substantive rules he was accused of violating. Indeed, said the Appellate Division, “[t]he initial disciplinary determination, coupled with the hearing exhibits, with which he was supplied, provided Petitioner with factual findings sufficiently detailed to apprise him of the misconduct he was found to have engaged in and to give him a meaningful opportunity to lodge an appeal (of which he availed himself twice).”

The Appellate Division ruled that there was no merit to Petitioner’s contention that he was denied administrative due process as he [1] was apprise him of the misconduct he was alleged to have engaged in; [2] was afforded the opportunity to appear at the hearing, which he chose not to attend and which was then conducted notwithstanding his absence from the proceeding; [3] was provided with detailed written determinations; [4] afforded an administrative appeal process; and [5] obtained judicial review via CPLR Article 78.

Finally, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and; Mamaroneck, Westchester County, 34 NY2d 222, the so-called Pell Doctrine, the court said that the penalty imposed, suspension without pay for one year, did not shock the judicial conscience.

______________________

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
 ______________________ 
  

December 26, 2016

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued as indicated


New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending December 31, 2016 
Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in COLOR

Office of General Services (OGS): Business Services Center Shared Services (2016-S-16)
The state’s 2012-13 budget established the Business Services Center within OGS as a centralized office for processing human resources and finance transactions that are common across state agencies. Auditors found the center has improved the consistency and efficiency of certain services it provides to its customers. Procurement card rebates have increased by over $4 million, and interest paid by the state has decreased by $350,000 since fiscal year 2013-14. Also, the center estimates it has reduced staffing costs for administering these services by $34 million annually. 

Department of Health (DOH) Medicaid Payments Made Pursuant to Medicare Part C (Follow-Up) (2016-F-16) 
An audit released in May 2014 found the state’s Medicaid program did not have limitations on the amounts it paid for Part C cost-sharing liabilities and could have saved up to $69 million if it limited payments of Medicare Part C cost-sharing liabilities. The audit also identified several scenarios under which Medicare Part C cost-sharing liabilities were improperly paid. In a follow-up report, auditors found DOH officials made progress in addressing the problems identified in the initial audit report. This included developing controls to limit the amounts paid for Medicare Part C cost-sharing liabilities and controls to prevent concurrent payments of Medicaid Advantage premiums and Medicare cost-sharing liabilities on behalf of the same recipient. However, further actions were still needed. 

An audit issued in October 2014 identified about $13.9 million in inappropriate or potentially inappropriate Medicaid payments for low birth weight infants that did not meet billing requirements as well as overpayments due to duplicate fee-for-service and managed care claims. At the time the initial audit’s fieldwork concluded, auditors recovered over $7 million of the overpayments identified. In a follow-up, auditors found DOH officials made significant progress implementing the recommendations made in the initial audit report. This included recovering another $2 million in overpayments that were identified in the initial report and strengthening controls that prevented $13 million in improper claims. 

An initial audit report, issued in June 2013, examined whether ESD monitors the effectiveness of its international offices and manages payments to foreign representatives to ensure they are made only for authorized contract purposes. Auditors concluded that, while ESD had made significant improvements in managing payments to foreign offices, it did not have an appropriate performance monitoring system in place to evaluate foreign offices’ activities against contract requirements. In a follow-up, auditors found ESD made some progress in addressing the issues identified in the initial audit report; however, further action is needed. 

State Education Department: HTA of New York Inc., Compliance with the Reimbursable Cost Manual (2016-S-36)  
For the fiscal year ended June 30, 2014, auditors identified $28,952 in ineligible costs that HTA reported for state reimbursement, including $22,207 in other than personal service costs, and $6,745 in personal service costs, which consisted of $4,065 in unsupported staff time, $1,546 in employee compensation that was reported as more than one full-time equivalent and $1,134 in other non-reimbursable costs. 

Office of Information Technology Services (ITS): Security and Effectiveness of Department of Motor Vehicles’ (DMV) Licensing and Registration Systems (Follow-Up) (2016-F-15)
An audit report issued in September 2014 found that ITS and DMV were not in compliance with security standards that govern the systems that process credit card transactions. Auditors also found ITS did not comply with state cybersecurity policies and did not establish adequate processes for managing user access of DMV systems. In a follow up, auditors found DMV officials have made some progress in correcting the problems identified in the initial report. However, improvements are still needed. Of the five prior audit recommendations, two recommendations have been implemented and three recommendations have been partially implemented.

New York State Comptroller Thomas P. DiNapoli announced the following audits were issued during the week ending December 20, 2016 
Source: Office of the State Comptroller


Audits of Municipal Entities

The board did not audit and approve claims prior to payment. The library’s bylaws do not address the requirement for an audit of claims and the board did not adopt a written claims audit policy. The director reviews and approves invoices and provides them to the library’s senior clerk, who then prepares checks. Checks require two signatures prior to payment – the director and the board president. However, the board president pre-signs blank checks and does not review the claims for which checks are written.

Village officials have established effective procedures that ensure claims are adequately documented and properly supported, for legitimate village purposes and approved prior to payment. The clerk-treasurer receives vendor invoices from a department head or by mail and prepares claim packets. Each board member reviews each individual claim packet and board resolutions approving payment of claims are then passed and documented in the meeting minutes.

The justices properly collected, recorded and reported court money in a timely manner. Court records were current and accurate and reports to the Justice Court Fund were timely and complete. The justices also ensured that court money was deposited in a timely manner.

While the board, by resolution, generally approved abstracts of claims, it did not perform an effective claims audit or establish an adequate process to ensure that transactions were properly authorized and approved or that claims were for proper village purposes. Although all claims reviewed appeared to be reasonable and legitimate, the use of confirming purchase orders circumvents internal controls and weakens the procurement and budget control process. Moreover, when the board does not audit and approve claims prior to payment and has the same person that audits the claims sign checks, there is an increased risk that the village could pay for goods and services that are not proper village expenditures.

The treasurer’s status, as either a library officer or independent contractor, is unclear. While this appointment and the duties attached to this function are indicative of those of a public officer, it appears this individual was engaged to perform the duties of treasurer as an independent contractor. Among the indications of an independent contractor relationship, the treasurer does not take an oath of office, which is a requirement for holding public office, and is not compensated through the payroll, as are other library officers and employees.

Although the board adopted a procurement policy that required obtaining competition for purchases not subject to bidding requirements, village officials did not always ensure that purchases were made in compliance with the requirements. Furthermore, the policy did not include procedures for procuring professional services. Auditors selected a sample of purchases from 30 vendors totaling approximately $1.7 million and found that village officials did not use competitive methods to procure goods and services from six vendors who were paid a total of $196,732 for professional services. In addition, village officials did not competitively bid purchases from four vendors totaling $148,387, as required.


Audits of BOCES and School District

Although the board has adopted a procurement policy that requires competition for purchases not subject to bidding requirements, the policy does not clearly establish procedures for procuring professional services. Also, the purchasing agent and claims auditor did not always ensure that purchases were made in compliance with the policy or require district officials to properly document compliance when they sought competition.

BOCES did not properly oversee the managed technical support cooperative service agreement, which resulted in errors in reporting reimbursable expenditures to the New York State Education Department (SED). Specifically, BOCES reported district-based staff who were not eligible for aid reimbursement from SED. As a result, BOCES claimed $2.5 million in additional aid to which it was not entitled.

The board and district officials have not developed adequate written policies and procedures governing the claims processing function. In addition, the board did not develop a comprehensive job description that outlines the claims auditor’s expectations and requirements. The claims auditor compares invoices against only the purchase orders, which does not always provide adequate documentation about the vendors’ prices. The claims auditor does not compare invoices against quotes, bids or government contracts, and there is no policy that requires that these documents be attached to the claims.

The board delegated its responsibility to a claims auditor who generally ensured claims were adequately supported, properly audited before payment and in compliance with district policies. The claims auditor verified that claims were supported by original documentation such as detailed invoices or receipts and that each claim had been properly authorized.

Although the board and district officials reported unrestricted fund balance levels that were in accordance with statutory limits, they have annually appropriated fund balance towards the next year’s budget that was not used due to a practice of overestimating appropriations. This trend is projected to continue through 2015-16. Once the unused appropriated fund balance is included in unrestricted fund balance, the district’s recalculated unrestricted fund balance exceeds the statutory limit, ranging from approximately $2.4 million (12 percent) in 2012-13 to $930,000 (5 percent) in 2014-15. In addition, three reserves totaling approximately $3.8 million were overfunded, and the debt reserve totaling approximately $600,000 has not been used since 2010-11 for related debt principal and interest payments, as statutorily required.

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com