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

March 08, 2017

Blocking computer threats with innovative technologies


Blocking computer threats with innovative technologies
Source: The CEO's Guide to Data Security - An AT&T publication

The recently published fifth report in this series of AT&T's Cybersecurity Insights addresses Data Security and chapters focus on the following topics:

1. Blueprint for cybersecurity innovation;

2. Data;

3. Applications;

4. Connected devices;

5. Network; and

6. Data center and cloud

The publication is posted on the Internet at: https://www.business.att.com/cybersecurity/docs/vol5-datasecurity.pdf

The first four reports in AT&T's Cybersecurity Insights series are:

What Every CEO Needs to Know About Cybersecurity

The CEO's Guide to Securing the Internet of Things

The CEO's Guide to Cyberbreach Response

and

The CEO's Guide to Navigating the Threat Landscape

These four earlier reports are available on the Internet by clicking here

March 06, 2017

Disciplinary hearing postponed “without prejudice” pending successful completion of a probationary period with another agency


Disciplinary hearing postponed “without prejudice” pending successful completion of a  probationary period with another agency 
Click on text highlighted in color  to access the full text of the decision

The Administration for Children’s Services (“ACS”) brought disciplinary charges against one of its employees. Prior to the first scheduled conference at New York City Office of Administrative Trials and Hearings [OATH], the employee took leave from ACS and accepted a new position with another agency. The employee sought to adjourn the conference, but ACS moved to go forward with case.

OATH Administrative Law Judge John W. Burns removed the disciplinary matter from OATH’s calendar without prejudice because employee is on leave from ACS pending successful completion of probationary period of employment with her new agency. Should the employee return to ACS on or before the end of her probationary period at the other agency, ACS shall have the right to re-file the charges and move forward with the disciplinary proceeding at that time.

Admin. for Children’s Services v. M.S., OATH Index No. 2054/16, mem. dec. (Jan. 11, 2017).


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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
________________________
 

March 01, 2017

An administrative disciplinary hearing, in whole or in part, may be closed to the public under certain, and limited, circumstances


An administrative disciplinary hearing,  in whole or in part, may be closed to the public under certain, and limited, circumstances 
2017 NY Slip Op 01473, Appellate Division, First Department

Although an administrative disciplinary hearing typically is open to the public, there are limited exceptions to this general rule as is demonstrated by this decision by the Appellate Division, First Department.

A New York City police officer was alleged to have engaged in sexual misconduct with a minor. In the course of the disciplinary hearing that followed, the Deputy Commissioner, as an  exercise of discretion, closed the hearing to the public during the minor's testifying concerning the police officer's alleged sexual misconduct.

The Appellate Division sustained the Deputy Commissioner's action in closing the hearing to the public while the minor testified "[g]iven the sensitive nature of the case and the victim's desire not to testify in front of her mother."

Noting that the Deputy Commissioner's findings of misconduct, sexual and otherwise, were supported "a preponderance of the credible evidence — namely, the forensic computer records, text messages, controlled calls, and [the police officer's] own statements upon his arrest — supported the minor victim's version of the events" the court, citing Tighe v Kelly, 305 AD2d 274, leave to appeal denied 100 NY2d 513, said that the penalty imposed on the police officer, termination, "does not shock the judicial conscience," given the findings that he had engaged in sexual misconduct with a minor.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_01473.htm

_______________________ 

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
_______________________ 



An administrative disciplinary hearing, in whole or in part, may be closed to the public under certain, and limited, circumstances


An administrative disciplinary hearing,  in whole or in part, may be closed to the public under certain, and limited, circumstances 

Although an administrative disciplinary hearing typically is open to the public, there are limited exceptions to this general rule as is demonstrated by this decision by the Appellate Division.




February 25, 2017

The provisions of a contract between the parties held to control the number of days of accumulated vacation leave credits to be paid the employee upon his or her separation from service


The provisions of a contract between the parties held to control the number of days of accumulated vacation leave credits to be paid the employee upon his or her separation from service  
Wilson v Poughkeepsie City School Dist., 2017 NY Slip Op 01404, Appellate Division, Second Department

Former Poughkeepsie School Superintendent Laval Wilson sued the Poughkeepsie City School District [Poughkeepsie] for breach of contract when it refused to pay him for certain accumulated vacation leave credits that Wilson alleged was due him when left the employ of the school district.

Paragraph 8(b) of Wilson's employment contract with Poughkeepsie permitted him to accumulate "up to a total of fifteen (15)" days of vacation leave. However, another provision in the contract provided that Wilson could "carry over ... 5 vacation days per year."

Although Poughkeepsie paid Wilson for his 15 accumulated vacation days when he left its employ, Wilson contended that he was also entitled to be paid for an additional 22 days of accumulated vacation credit attributed to his "carry over" of certain vacation days while employed by Poughkeepsie and thus he was due payment for a total of 37 accumulated vacation days at the rate of $920 per day. Accordingly, Wilson claimed that Poughkeepsie still owed him $20,240 ($920 x 22 days).

Poughkeepsie, on the other hand, argued that the contract provided that Wilson was entitled to a specified number of paid vacation days each year, which accrued on a monthly basis, and upon leaving employment with the school district after three years of employment, he would be paid for his accumulated vacation days not to exceed a total of fifteen days of vacation credit accruals.

The Appellate Division agreed with Poughkeepsie's interpretation of the contract between the parties, explaining that in its view:

1. Paragraph 8(b) of the contract between the parties set a 15 day limit on the amount of vacation credit Wilson could accumulate.

2. Although another clause in the contract specified that Wilson could "carry over"  a maximum number of vacation days - five days - per year, the 15-day limit in paragraph 8(b) did not include any reference to a particular time frame and thus barred Wilson from accumulating more than 15 paid vacation days during the entire course of his employment..

The Appellate Division said that a contract is to be construed in accordance with the parties' intent, which is "generally discerned from the four corners of the document itself." Here, said the court, the contract barred Wilson from accumulating more than 15 paid vacation days during the entire course of his employment and held that Wilson’s claim that he was entitled to be paid for a total of 37 vacation days when he left his position with Poughkeepsie “is utterly refuted by the unambiguous terms of the contract.”

The decision is posted on the Internet at:

February 18, 2017

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 18, 2017


Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending February 18, 2017
Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report


New York's Drinking Water Infrastructure Needs Fixing

New York's water systems may require nearly $40 billion in repairs and improvements over the next two decades, according to a reportissued by State Comptroller Thomas P. DiNapoli.


DiNapoli Appoints Government Relations Staff

New York State Comptroller Thomas P. DiNapoli announced he has named Erin Stevens as deputy comptroller for Intergovernmental and Community Affairs, Christina Baal-Owens as director of Community Affairs, and Tad Mack as the regional director for the Finger Lakes.


DiNapoli to Audit Hempstead IDA, Valley Stream School District in Wake of Controversial Development Project

State Comptroller Thomas P. DiNapoli announced his office will audit the Hempstead Industrial Development Agency and Valley Stream Union Free School District 30. The audits will be conducted in response to multiple requests his office received related to approval of the Green Acres Mall project in Hempstead.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed audits of the





February 15, 2017

Do Civil Service Rules need to be reformed?

Do Civil Service Rules need to be reformed?
Source: Today's Government News

In an article posted on the Internet by Today's Government News, Contributor Howard Risher observes that "The states with the highest levels of active disengagement -- workers who are so unhappy at work that they 'undermine what their engaged coworkers accomplish,'" as Gallup put it in a recent study -- "are Connecticut, Michigan, New Jersey, New York, Ohio and my home state of Pennsylvania."

Mr. Risher then asks: “Are Civil-Service Rules the Enemy of Employee Engagement?” noting that “At every level of government, problem employees receive far more attention than those who make significant contributions.”

Mr. Risher's article is posted on the Internet at:

http://www.governing.com/columns/smart-mgmt/col-civil-service-rules-public-employee-engagement.html?utm_term=Are%20Civil-Service%20Rules%20the%20Enemy%20of%20Employee%20Engagement&utm_campaign=Leaked%20Trump%20Order%20Targets%20Legal%20Immigrants%20Who%20Use%20Government%20Benefits&utm_content=email&utm_source=Act-On+Software&utm_medium=email



February 10, 2017

Executive Order threatens cuts to federal funding of any jurisdiction that refuses to hold individuals for possible deportation


Executive Order threatens cuts of federal funding of any jurisdiction that refuses to hold individuals for possible deportation
Source: Governing the States and Localities - Public Safety and Justice, February 10, 2017

"President Donald Trump signed an executive order on Jan. 25, 2017 promising to punish any 'sanctuary jurisdictions' that 'attempt to shield aliens from removal from the United States.' The order threatened cuts to federal funding and public shaming of 'any jurisdiction that ignored or otherwise failed to honor any detainers.'”

On the other hand, some involved in law enforcement who operate jails have liability concerns and many will not honor detaining orders without a warrant signed by a judge.

The Public Safety and Justicearticle is posted on the Internet at:

The Executive Order, Enhancing Public Safety in the Interior of the United States, is posted on the Internet at:
https://www.whitehouse.gov/the-press-office/2017/01/25/presidential-executive-order-enhancing-public-safety-interior-united



February 06, 2017

Police detective who did not properly discharge his duties not entitled to a defense or indemnification by the employer in a lawsuit in which he or she is a defendant


Police detective who did not properly discharge his duties not entitled to a defense or indemnification by the employer in a lawsuit in which he or she is a defendant
2017 NY Slip Op 00649, Appellate Division, Second Department

General Municipal Law §50-l provides that "Notwithstanding the provisions of any other law, code or charter, the county of Nassau shall provide for the defense of any civil action or proceeding brought against a duly appointed police officer of the Nassau county police department and shall indemnify and save harmless such police officer from any judgment of a court of competent jurisdiction whenever such action, proceeding or judgment is for damages, including punitive or exemplary damages, arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment. Such proper discharge and scope shall be determined by a majority vote of a panel consisting of one member appointed by the Nassau county board of supervisors, one member appointed by the Nassau county executive, and the third member being the Nassau county police commissioner or a deputy police commissioner."

The Nassau County Police Officer Indemnification Board determined that a Nassau County Police Detective was not entitled to a defense or to indemnification pursuant to General Municipal Law §50-l in a federal action civil rights action in which he was named a defendant. Supreme Court sustained the Board’s decision and the Detective appealed.

The Board had determined that the Detective had failed to notify anyone that an individual who had been arrested and held in jail for four months before he was arraigned could not possibly have committed the robbery for which he was charged because he was incarcerated on the day of the robbery. This failure, said the Board, was not "committed while in the proper discharge of his duties."

The Appellate Division said that the Board’s decision was supported by the facts and was not arbitrary and capricious. Further, said the Appellate Division, a court "may not substitute its judgment for that of the agency responsible for making the determination, but must ascertain only whether there is a rational basis for the decision or whether it is arbitrary and capricious."

Accordingly, the Appellate Division found that Supreme Court had properly denied the Detective’s petition and had properly dismissed the action the Detective had brought pursuant to CPLR Article 78.

January 30, 2017

Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement


Determining seniority for the purpose of layoff and establishing an educator's position on a "preferred list" for the purpose of reinstatement
Matter of DeRosa and the Minisink Valley Central School District, et al, Decisions of the Commissioner of Education, Decision No. 17,028

Amanda DeRosa served full-time in her probationary appointment during the 2008–2009 and 2009–2010 school years, with the exception of the period of November 19, 2009 to January 5, 2010, during which she took unpaid maternity leave. 

The Minisink Valley Central School District [Minisink] abolished thirteen full-time positions in the elementary tenure area effective June 30, 2010 and Ms. DeRosa was notified that she would be placed on a "preferred eligibility list" [PEL] with the right to reinstatement to a position in the elementary tenure area. When Minisink recalled two other teachers on the PEL, Ms. Kristen Daly and Ms. Jeni Galligan, Ms. DeRosa claimed that at the time of the recall she had four full years of service in the system, more than Ms. Daly and Ms. Galligan and that,  in accordance with Education Law §§2510 and 3013, she should have been recalled from the PEL prior to either of those educators.

In contrast to Minisink's argument that "long-term substitute service in positions that do not ripen into probationary appointments is not counted towards seniority," the Commissioner of Education ruled that long-term substitute service should be so considered and that tenure area is irrelevant to the calculation of service for the purposes of determining an individual's ranking on a preferred list.

The Commissioner pointed out that paragraph (a) of Education Law §3013(3) addresses a teacher’s recall rights following a layoff and provides, in pertinent part that "If an office or position is abolished ...  the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list.... The persons on such preferred list shall be reinstated or appointed to such vacancies ... in the order of their length of service in the system...."

The Commissioner explained that for purposes of determining the recall rights of teachers on a PEL, length of service in the system is used, not length of service within a particular tenure area. Further, said the Commissioner, "Seniority under Education Law §2510(3), which is identical to §3013(3), has been interpreted as all service within the system, not just a particular tenure area" and it is well-settled that full-time regular substitute service counts for seniority purposes under Education Law §§2510(2). Rather, a teachers loses his or her seniority rights under Education Law §§2510(2) and 3013(2) when he or she severs, or is severed, for his or her employment with the employer, not at the result of "interrupted service" during an "uninterrupted" period of employment as the result of an authorized leave of absence without pay or for such other reason such as military leave as defined in New York State's Military Law.

The question presented in this appeal was whether the calculation of Ms. DeRosa's service in the system under Education Law §3013(3) includes long-term substitute service that did not lead to a probationary appointment in the same tenure area. This, said the Commissioner, appeared to be a question of first impression and neither party has cited to a prior decision that squarely addresses this issue nor could the Commissioner find one.

Although Minisink cited Matter of Kelley, 19 Ed Dept Rep 499, aff’d sub. nom.; Kelley v. Ambach, 83AD2d 733, as authority that substitute service not connected to a probationary appointment should not be counted towards seniority, the Commissioner noted that in Kelley an excessed assistant principal in a junior high school claimed entitlement to appointment from the a PEL to positions of assistant principal at a senior high school. As both of the senior high school positions were in a different tenure area, the Commissioner held that Minisink's "reliance on [Kelley was] misplaced," noting that Ms. DeRosa argued that she should have been recalled by Minisink to a vacant position that was in the same tenure area as the position from which she was excessed.

Accordingly, the question is whether long-term substitute service that did not lead to a probationary appointment would be creditable in determining seniority for the purposes of layoff under Education Law §3013(2) and for recall purposes under Education Law §3013(3). 

In the words of the Commissioner, "[Minisink] has not articulated any compelling policy reason why long-term substitute service that did not lead to a probationary appointment should not be counted for recall purposes when the law is clear that service in another tenure area may be counted [and] Education Law §3013(3) bases recall on length of service in the system, which would encompass full-time service as a professional educator as defined in 8 NYCRR §30-1.1(e) [and] no reason appears why full-time service as a regular substitute in a different tenure area should not be counted as part of service" at Minisink.

In consideration of the facts in this case, the Commissioner found:

1. "Where [a] petitioner is seeking reinstatement to a position in her [or his] original tenure area and [is] only claiming seniority credit for prior long-term substitute service, the petitioner is entitled to such credit for her [or his] service as a professional educator. 

2. "By analogy to the cases under Education Law §§2510(2) and 3013(2), this applies to long-term substitute service that did not immediately precede [a] petitioner’s probationary service and to interrupted service such as [Ms. DeRosa's]. 

3. There was "no basis in the statute, or as a matter of policy, for disregarding service as a professional educator in a long-term substitute position in determining total years of service in the [district] under Education Law §3013(3).

4. Ms. DeRosa's "did not sever service with the district; rather, her service was only interrupted by service in a different tenure area.

5. Ms. DeRosa had "served in a probationary appointment in the elementary tenure area until such position was abolished" and service during that probationary appointment "counted towards her seniority in the [district]."

Ms. DeRosa, at the time that her position was abolished, had four years of service in the elementary tenure area, less unpaid time taken during the 2009–2010 school year for maternity leave. In contrast, Ms. Daly had three years of service in the district and Ms. Galligan had three years of service, less some number of days of unpaid leave." Thus Ms. DeRosa had more seniority at Minisink than either Ms. Daly or Ms. Galligan."

Accordingly, the Commissioner ordered Minisink to reinstate Ms. DeRosa as elementary teacher, with back pay, seniority and benefits as of September 1, 2013, "less any compensation she may have received in the interim."

The decision is posted on the Internet at:

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book focusing on the relevant laws, rules and regulations, and summarizing selected court and administrative decisions, involving layoff and reinstatement from a preferred list. For more information click on http://nylayoff.blogspot.com/
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January 24, 2017

An individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing


An individual's right to due process is truncated if he or she is persuaded not to attend his or her administrative hearing
Kennedy v United States, USCA, Federal Circuit, Docket 16-1512

Although a federal Claims Court held that individual’s disenrollment from a program was lawful and that his breach-of-contract claims for monetary relief lacked merit, the Federal Circuit Court of Appeals reversed.

The Circuit Court ruled that in view of the government’s concession that the individual’s due process rights were violated when he was dissuaded from attending his hearing, the Claims Court erred in concluding that individual’s disenrollment was inevitable.

The decision is posted on the Internet at:
http://www.cafc.uscourts.gov/sites/default/files/opinions-orders/16-1512.Opinion.1-12-2017.1.PDF

January 08, 2017

Court of Appeals' decision addresses the serving of a late notice of claim on a public entity


Court of Appeals' decision addresses the serving of a late notice of claim on a public entity
Newcomb v Middle Country CSD, 2016 NY Slip Op 08581, Court of Appeals, December 22, 2016

The issue in this appeal is whether the Supreme Court and, on appeal, the Appellate Division, abused their discretion in denying the petitioner's motion for leave to serve a late notice of claim on the Middle Country Central School District. The Court of Appeals concluded that “it is an abuse of discretion as a matter of law when, as here, a court determines, in the absence of any record evidence to support such determination, that a respondent will be substantially prejudiced in its defense by a late notice of claim. Here, the lower courts also improperly placed the burden of proving substantial prejudice solely on petitioner.” 

Accordingly, the Court of Appeals reversed the lower courts’ rulings.

The court explained that “Pursuant to General Municipal Law §50-e(1)(a), a party seeking to sue a public corporation, which includes a school district, must serve a notice of claim on the prospective defendant "within ninety days after the claim arises." General Municipal Law §50-e(5) permits a court, in its discretion, to extend the time for a petitioner to serve a notice of claim. The statute requires the court to consider whether the public corporation "acquired actual knowledge of the essential facts constituting the claim within [90 days after the accrual of the claim] or within a reasonable time thereafter" (General Municipal Law §50-e[5]). Additionally, the statute requires the court to consider "all other relevant facts and circumstances" and provides a "nonexhaustive list of factors that the court should weigh" (Williams v Nassau County Med. Ctr., 6 NY3d 531, 539 [2006]). One factor the court must consider is "whether the delay in serving the notice of claim substantially prejudiced the public corporation in maintaining its defense on the merits" (General Municipal Law §50-e[5]).

However, the Court of Appeals observed that ”... a finding that a public corporation is substantially prejudiced by a late notice of claim cannot be based solely on speculation and inference; rather, a determination of substantial prejudice must be based on evidence in the record.”


Decision highlights some essentials of the Freedom of Information Law

Decision highlights some essentials of the Freedom of Information Law
PBA of the New York State, Inc., v State of New York, 2016 NY Slip Op 08918, December 29, 2016

In this decision the Appellate Division addressed elements of the State’s Freedom of Information Law [FOIL] and explained:

"Under FOIL, agency records are presumptively available for public inspection, without regard to the need or purpose of the applicant, unless the requested documents fall within one of the exemptions set forth in Public Officers Law §87(2)" (Matter of Aurigemma v New York State Dept. of Taxation & Fin., 128 AD3d 1235, 1236-1237 [2015] [internal quotation marks and citations omitted]; see Matter of Fappiano v New York City Police Dept., 95 NY2d 738, 746 [2001]; Matter of Johnson v Annucci, 138 AD3d 1361, 1362 [2016], lv denied 27 NY3d 911 [2016]). "Exemptions are to be narrowly construed to provide maximum access, and the agency seeking to prevent disclosure carries the burden of demonstrating that the requested material falls squarely within a FOIL exemption" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 566 [1986] [citations omitted]; see Matter of Town of Waterford v New York State Dept. of Envtl. Conservation, 18 NY3d 652, 657 [2012]; Matter of MacKenzie v Seiden, 106 AD3d 1140, 1141 [2013]). Notably, "blanket exemptions for particular types of documents are inimical to FOIL's policy of open government" (Matter of Gould v New York City Police Dept., 89 NY2d 267, 275 [1996]; accord Matter of Thomas v New York City Dept. of Educ., 103 AD3d 495, 498 [2013]; Matter of New York State Defenders Assn. v New York State Police, 87 AD3d 193, 196 [2011]), and the agency must "articulat[e] a particularized and specific justification for denying access" to the requested documents (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 566; accord Matter of West Harlem Bus. Group v Empire State Dev. Corp., 13 NY3d 882, 885 [2009]; Matter of Moody's Corp. & Subsidiaries v New York State Dept. of Taxation and Fin., 141 AD3d 997, 999 [2016]).

“Public Officers Law §87(2)(b) permits an agency to deny access to records, or portions thereof, if disclosure ‘would constitute an unwarranted invasion of personal privacy.’ The statute does not, however, categorically exempt such documents from disclosure. To the contrary, Public Officers Law §89 expressly permits an agency to delete ‘identifying details’ from records that it makes available to the public (Public Officers Law §89[2][a]), and provides that ‘disclosure shall not be construed to constitute an unwarranted invasion of personal privacy . . . when [such] identifying details are deleted’ (Public Officers Law § 89 [2] [c] [i]; see Matter of Scott, Sardano & Pomeranz v Records Access Officer of City of Syracuse, 65 NY2d 294, 298 [1985]; Matter of New York Times Co. v New York State Dept. of Health, 243 AD2d 157, 159 [1998]).”

N.B. The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

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.
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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
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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.
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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.
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