The Commissioner of Education does not have jurisdiction to consider claims that an employee organization breached its duties of fair representation

The Commissioner of Education does not have jurisdiction to consider claims that an employee organization breached its duties of fair representation

Decisions of the Commissioner of Education, Decision 17,054

Gloria J. Parker, a tenured teacher, filed an appeal with the Commissioner of Education challenging her placement on paid administrative leave by her employer, the Board of Education of the City School District of the City of Rochester. She also named as respondents in her appeal the Rochester Teachers Association (“RTA”) and New York State United Teachers (“NYSUT”).

With respect to RTA and NYSUT, Parker contended that both organizations “failed to provide her with adequate representation.”

RTA and NYSUT argued that in addition to Parker's failure to properly serve her complaint upon them, the Commissioner should dismiss both organizations from the action as “each is an unincorporated association over which the Commissioner of Education has no direct jurisdiction.”

Essentially RTA and NYSUT claim that the Commissioner of Education lacks jurisdiction over an employee organization or a labor organization.

The Commissioner agreed, explaining that Education Law §310 provides that “any person considering himself aggrieved by an action taken at a school district meeting, by the trustees of a school district or library, or by any other official act or decision of a school officer or authority may seek review of such action or decision in an appeal to the Commissioner of Education. Education Law.” In the words of the Commissioner, “§310 does not authorize the Commissioner to review actions taken by an organization such as the teachers' association."

Accordingly, the Commissioner dismissed Parker's claims with respect to RTA and NYSUT “for lack of jurisdiction,” noting that with respect to Parker's allegation concerning the adequacy of representation provided by RTA and, or, NYSUT, the Public Employment Relations Board [PERB] has exclusive jurisdiction over claims of improper employee organization practices, including allegations that the employee organization breached its duty of fair representation.

The Commissioner's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17054

Appellate Division finds penalty of dismissal imposed on educator shocking to its sense of fairness

Appellate Division finds penalty of dismissal imposed on educator shocking to its sense of fairness

Matter of Beatty v City of New York, 2017 NY Slip Op 01628, Appellate Division, First Department

The penalty of termination of employment was imposed upon Amira Beatty, a special education home instruction teacher having a 17-year unblemished record, by the New York City Department of Education [DOE] based upon the hearing officer's finding that she had submitted time sheets falsely stating that she had provided instruction to a disabled student and inaccurately indicating that she had reported to certain DOE schools and libraries over a two-month period.

Citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the Appellate Division ruled that "Notwithstanding Beatty's misconduct, under the circumstances presented here, the penalty of termination shocks our sense of fairness."

The court, quoting from Bolt v NYC Department of Education, 145 AD3d 450, explained that "[A] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. Additional factors would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed. There is also the element that the sanctions reflect the standards of society to be applied to the offense involved."

At the time of the incident in question, said the court, Beatty was confronted with an extraordinary situation -- "Superstorm Sandy" impact on the City had displaced both Beatty and her student from their respective homes and had adversely affected  transportation in the City.

The genesis of this disciplinary action: Beatty had filled out the time sheets in question in advance of the dates to which those time sheets pertained. She did not, in fact, proceed to provide instruction to the disabled student on the days set forth in those time sheets in the aftermath of Hurricane Sandy and submitted the time sheets without correction on a subsequent date. However, the Appellate Division noted that because she had instructed other students on each of the dates in question, she would have received the same salary regardless of how many students she had instructed or how many hours she had spent with them, and thus derived no benefit from her misstatements on the time sheets.

The court characterized Beatty's misconduct as "more a matter of lax bookkeeping than implementation of any venal scheme" as there was no intent to defraud or theft of services on her part, and the harm to the public and to the DOE was mitigated.

At the hearing, Beatty admitted that she was guilty of submitting reports stating that she had provided instruction to the disabled student on certain dates when she had not done so and that she had reported to various schools and libraries on certain dates when she had not done so. Acknowledging that her misconduct warrants punishment as the disabled student was deprived of the services of a teacher for two months, Beatty did not seek to set aside the findings of misconduct contained in the hearing officer's opinion, but only to modify the penalty imposed on her.

Noting that Beatty had acknowledged her error in judgment and has pledged to change her practices and never to repeat the error, the Appellate Division found no evidence that "[Beatty] could not remedy her behavior." Accordingly, the court found that the penalty of termination was disproportionate to the level of Beatty's misconduct and exceeds the standards that society requires to be applied to this offense.

The court concluded that rather than constituting a case of extended, intentional and self-serving misconduct or repeated and continuous neglect of duty, "this was an isolated instance of neglect occurring under circumstances of extraordinary personal hardship and involving a teacher who had an otherwise unblemished and longstanding record." "Had Superstorm Sandy not upended her life," said the court, "there is no indication that [Beatty's] wrongdoing would have occurred. As it is highly unlikely that the extraordinary situation presented in this case will recur, the factors of general and specific deterrence do not come into play."

[N.B. Presiding Judge Friedman and Judge Andrias  dissented in a memorandum by Judge Andrias.]

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01628.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

___________________

State Department of Audit and Control holding more than $14 billion in unclaimed funds

State Department of Audit and Control holding more than $14 billion in unclaimed funds

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli announced that his office has over $14.5 billion in unclaimed funds and urged New Yorkers to see if any of it belongs to them. In State Fiscal Year 2015-16

DiNapoli’s office set a national record for the third consecutive year for the most unclaimed funds returned in one year totaling $452 million.

Individuals are not the only entities for whom the Comptroller is holding unclaimed funds pursuant to the Abandonded Property Law. The Comptroller is also holding monies that may be claimed by State and local governments such as:

Name	Address	Reported By
SCHOOL DISTRICT ACCOUNTS PAY	C/O SHENENDEHOWA CENTRAL SCH D 5 CHELSEA PL CLIFTON PARK NY 12065	SCHOLASTIC BOOK CLUBS INC
SCHOOL DISTRICT NORT	5355 W TAFT RD N SYRACUSE NY	NEW YORK TELEPHONE CO
SCHOOL DISTRICT OF ALBANY	ACADEMY PARK ELK STREET ATTN ACCTS PAYA BLE ALBANY NY 12207	CDW LLC
VILLAGE OF ALEXANDRIA BAY	P O BOX 367 WATERTOWN NY 13601	W B MASON CO INC
VILLAGE OF ALFRED	WATER DEPARTMENT 7 WEST UNIVERSITY STREE T ALFRED NY 14802	ALFRED UNIVERSITY
VILLAGE OF ALFRED POLICE DEPT	7 W UNIVERSITY ST ALFRED NY 14802	GALLS LLC
TOWN OF BATAVIA	8477 STRINGHAM DR BATAVIA NY 14020	NATIONAL GRID - NIAGARA MOHAWK POWER CORP
TOWN OF BEDFORD JUSTICE	161 BUXTON ROAD BEDFORD HILLS NY 10507	CITIBANK NA NATIONAL COMPLIANCE GRP
TOWN OF BETHEL NY	PO BOX 300 3454 RTE 55 WHITE LAKE NY 12786

CITY OF BUFFALO

CITY HALL ROOM 117 BUFFALO NY 14218

INTEGON INDEMNITY INSURANCE CO

CITY OF NEW YORK	C/O LEOPOLD GROSS & SOMMERS PC BROOKLYN NY 11241	STATE FARM FIRE & CASUALTY CO
CITY OF NEW YORK	CO RAYMOND ZAGAMI 624 6 STREET BROOKLYN NY 11215	CITIBANK NA NATIONAL COMPLIANCE GRP
CITY OF NEW YORK	COMMUNITY SCHOOL DISTRICT 17 19 DURYEA P L BROOKLYN NY 11226	YALE UNIVERSITY

UUP BENEFIT TRUST FUND

800 TROY-SCHENECTADY ROAD #3306628 LATHAM NY 12210

CIGNA HEALTH & LIFE INSURANCE CO

CSEA INC FINANCE DEPT	143 WASHINGTON AVE ALBANY NY 12210	OWEGO ASSOCIATES INC
CSEA LOCAL 350	75 VARICK STREET 7TH FLOOR NEW YORK NY 10013	AUTOMATIC DATA PROCESSING INC
CSEA LOCAL 430	45 MALL DR COMMACK NY 11725	DESMOND HOTEL

There are hundreds of other such governmental jurisdictions and employee organizations listed. Individuals and organizations can search the Comptroller's data base of unclaimed funds to see if the Comptroller is holding any of their property in the Abandoned Property Fund by clicking: https://ouf.osc.state.ny.us/ouf/?wicket-crypt=4mZX_EiLHOw

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

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).

________________________

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 

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.

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:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01404.htm

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

Town of Colchester,

Town of Greene, Town of Kortright,

City of Poughkeepsie, and the

Summitville Fire Company.

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

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:

http://www.governing.com/topics/public-justice-safety/sl-sheriffs-trump-immigrants-deportation.html?utm_term=Sheriffs%20Still%20Searching%20for%20Clarity%20on%20Deportation&utm_campaign=A%20Bipartisan%20Model%20for%20Lowering%20Obamacare%20Premiums&utm_content=email&utm_source=Act-On+Software&utm_medium=email

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

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.

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:

http://www.counsel.nysed.gov/Decisions/volume56/d17028

========================

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/

========================

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

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.”