New York State Comptroller Thomas P. DiNapoli announced the following report was issued during the week ending August 26, 2017

 
New York State Comptroller Thomas P. DiNapoli announced the following report was issued during the week ending August 26, 2017

Source: Office of the State Comptroller

Click on text highlighted in color  to access the full report

Comptroller DiNapoli and A.G. Schneiderman Announce Sentencing of Former West Ghent Volunteer Fire Company Treasurer Who Embezzled Funds to Bankroll Personal Business

Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the sentencing of Gail E. Cesternino, the former West Ghent Volunteer Fire Company treasurer, for embezzling fire company money to bankroll her personal business. Cesternino was sentenced to 30 days in jail followed by five years’ probation, and ordered to pay $58,000 in restitution and a $5,000 fine.

Selected reports posted in Employment Law News by WK Workday

 

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 25, 2017

Click on text highlighted in color  to access the full report

Sweeping ‘don’t talk about K9 unit’ mandate was prior restraint on troopers’ free speech

Moonin v. Tice, By Lisa Milam-Perez, J.D.

Officer could be fired for derogatory Facebook post and texts about Trayvon Martin

Snipes v. Volusia County, By Kathleen Kapusta, J.D.

Supervisor’s heterosexuality wouldn’t bar jury from finding she sexually desired female subordinate

Watkins v. Illinois Central School Bus, LLC, By Lorene D. Park, J.D.

The Doctrine of Collateral Estoppel bars relitigating an issue raised and decided by a judicial tribunal in a prior action or proceeding involving the same parties

The Doctrine of Collateral Estoppel bars relitigating an issue raised and decided by a judicial tribunal in a prior action or proceeding involving the same parties

2017 NY Slip Op 06264, Appellate Division, Second Department

In an action to recover damages for alleged unlawful discrimination, unlawful retaliation, and maintaining a hostile work environment in violation of Executive Law §296 [NYSHLR] and §8-107 of the Administrative Code of the City of New York [NYCHRL], Supreme Court determined that the plaintiff's claims under color of NYSHRL and NYCHRL were barred by the doctrine of collateral estoppel.

The plaintiff appealed the court's ruling, contending that the court erred in dismissing his claims brought under NYCHRL. The Appellate Division, citing Ryan v New York Tel. Co., 62 NY2d 494, sustained the lower court's decision, explaining that the doctrine of collateral estoppel bars a party from "relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity [to such party], whether or not the tribunals or causes of action are the same."

Noting that a  party seeking to invoke the doctrine of collateral estoppel has the burden to show the "identity of the issues," while the party trying to avoid application of the doctrine must establish "the lack of a full and fair opportunity to litigate," the Appellate Division explained that four conditions must be met to trigger application of the Doctrine:

(1) The issues in both proceedings must be identical;

(2) The issue in the prior proceeding must have been actually litigated and decided;

(3) There was a full and fair opportunity to litigate in the prior proceeding; and

(4) The issue previously litigated was necessary to support a valid and final judgment on the merits.

Further, said the Appellate Division, in the event a federal court declined to exercise jurisdiction over a plaintiff's state law claims, collateral estoppel may still bar litigating those state claims in state court if the federal court decided issues identical to those raised in the plaintiff's state claims.

In plaintiff's earlier federal action, a federal District Court determined that the defendant-employer had legitimate, nondiscriminatory reasons for its employment actions, it was not motivated by retaliatory animus, its reasons were not a pretext for discrimination, and the plaintiff was not treated differently than other employees. The District Court's determinations in this regard were affirmed by the U.S. Circuit Court of Appeals.

Accordingly, the Appellate Division found that "the determinations rendered by the federal courts are dispositive of the plaintiff's claims under NYSHRL and NYCHRL, even under the broader standard of NYCHRL" and concluded that Supreme Court properly determined that the plaintiff's claims under NYSHRL and NYCHRL were barred by the doctrine of collateral estoppel.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_06264.htm

The New York State Department of Civil Service has announced the availability of 500 new State Government Internships

The New York State Department of Civil Service has announced the availability of new State Government Internships

Source: New York State Department of Civil Service

On August 23, 2017 the New York State Department of Civil Service announced the availability of more than 500 new student internships for the upcoming 2017 Fall Semester throughout New York State government.  

N.B. The application deadline is September 12, 2017.

Student internships are available across a wide array of State agencies – both upstate and downstate – and include opportunities in finance, environmental conservation, criminal justice, health care, engineering, and a host of other professional disciplines. A current list of available internships for the Fall 2017 Session is posted on the Internet at: https://nysinternships.cs.ny.gov/nnyl/main/viewinternships.cfm

Student internships are available to undergraduate and graduate students at colleges and universities throughout New York State, as well as New York residents enrolled elsewhere. Opportunities include paid and unpaid positions and internships may provide academic credit depending on the policy of the intern’s educational institution. Each intern works in a particular area within an Executive Branch agency or department and internships are designed to provide participants with hands-on program experiences.

New York State’s one-stop website – nysinternships.cs.ny.gov– allows applicants to view job descriptions, create profiles, specify occupational interests, and upload resumes, writing samples, and letters of recommendation. Students can apply for multiple internships at the same time..

The Student Intern Program is administered by the Department of Civil Service and is one component of Governor Cuomo’s New New York Leaders Initiative and focuses on attracting new and highly-skilled individuals to the State workforce through both internship and fellowship programs.

Processing appeals to the Commissioner of Education seeking the removal of a member of a Board of Education

Processing appeals to the Commissioner of Education seeking the removal of a member of a Board of Education

New York State Commissioner of Education MaryEllen Elia has issued decisions in three appeals submitted to her by various parties seeking the remove Carl Paladino and others as a member of the Board of Education of the City School District of the City of Buffalo and certain other board members and administrative officers employed by the school district.

Appeal 1 by teachers and others:

Decisions of the Commissioner of Education, Decision No. 17,148 (August 17, 2017) 

In this appeal Petitioners, Joseph R. Montante, Sophia Howard-Johnson, Maria A. Baker, Rachel Lyons, and Ruyvette Townsend, sought the removal of Carl Paladino [respondent] as a member of the Board of Education of the City School District of the City of Buffalo.

Petitioners are teachers, residents, parents, taxpayers, and “members of the Buffalo educational community” in respondent’s district.  Paladino was elected to a three-year term as a member of the board on May 21, 2013 and was subsequently re-elected on May 17, 2016. 

The Commissioner concluded that Paladino should be removed as a member of the Board of Education as "[t]he record demonstrates that [Paladino] disclosed confidential information regarding collective negotiations under the Taylor Law which he gained in the course of his participation as a board member in executive session, and that his disclosures constituted a wilful violation of law warranting his removal from office pursuant to Education Law §§306 and 2559...."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17148

Appeal 2 submitted by certain parents:

Decisions of the Commissioner of Education, Decision No. 17,149 (August 17, 2017)

Petitioners are the parents and guardians of students in the City School District of the City of Buffalo.  Petitioners contended that respondent Paladino published comments in a December 23, 2016 edition of Artvoicemagazine which disrupted district operations and caused “psychological and emotional harm” to district students.  Petitioners further argue that respondent board and respondent Cash’s failure to “act to eliminate or address the extremely” harmful conduct constitutes cause for removal pursuant to Education Law §306.  Petitioners sought an order removing respondents from office pursuant to Education Law §§306 and 2559 as well as the appointment of a receiver “until new elections are held in 2018.” 

The Commissioner dismissed this appeal explaining "On this record, petitioners failed to effectuate personal service of the application upon the individuals of whom they seek removal and, therefore, did not secure jurisdiction over any of the respondents.  Accordingly, the application must be denied for failure to join the individual respondents as necessary parties."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17149

Appeal 3, submitted by certain organizations and others:

Decisions of the Commissioner of Education, Decision No. 17,150 (August 17, 2017)

Petitioners in this application consisted of the Buffalo Parent Teacher Organization (“BPTO”), NAACP Buffalo Branch, Lawrence Scott, the Reverend Mark Blue, Eve Shippens, Katherine S. Haq, Rahwa Ghirmatzion, Gretchen Cercone, Chanda O’Donnell de Ramirez, and Rachel Dominguez, seek the removal of Carl Paladino (“respondent”) as a member of the Board of Education of the City School District of the City of Buffalo (“board”).

The record indicated that petitioner BPTO is a non-profit organization based in Buffalo, with over 2,000 members, including parents, guardians, or “other adult standing as a parent for a student” in the district.  Petitioner Scott is a co-chair of the BPTO, taxpayer and resident in the Buffalo City School District.  Petitioner NAACP Buffalo Branch is a non-profit organization based in Buffalo that primarily serves the African-American community in the Buffalo area.  Petitioner Blue is the president of the NAACP Buffalo Branch.  Petitioner Shippens is a co-chair of the BPTO, a district teacher and parent.  Petitioner Haq is a BPTO secretary and parent.  Petitioner Ghirmatzion is the deputy director of PUSH Buffalo, an organization that serves approximately 2,000 district youths per year. Petitioner Cercone is a parent, resident and taxpayer in the district.  Petitioner O’Donnell de Ramirez is a BPTO member, parent and former educator in the district.  Petitioner Dominguez is a BPTO member, parent, resident and taxpayer in the district. 

The Commissioner said that the application must be denied as moot as only matters in actual controversy will be considered by her and decisions are not rendered on a statement of facts which no longer exist or which subsequent events have laid to rest.

Commissioner Elia then noted that Petitioners had requested that the "respondent be permanently removed from his position on the board" and took administrative notice of her  August 17, 2017 decision in Application of the Board of Education of the City School District of the City of Buffalo, 57 Ed Dept Rep, Decision No. 17,147, in which respondent was removed from office for wilful violation of General Municipal Law §805-a by disclosing confidential information which he obtained in the course of his official duties.

Thus, said the Commissioner, "Petitioners’ application for respondent’s removal, therefore, is moot."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17150

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Selected reports posted in Employment Law News by WK Workday

Selected reports posted in Employment Law News by WK Workday

Source: Wolters Kulwer

Selected reports posted by WK Workday distributed August 23, 2017

Click on text highlighted in color  to access the full report

No absolute right to presence of union representative in investigatory hearing
 
OK to deny union representation in peer review meeting, but denying union info about peer review unlawful  

No work from home for pregnant employee who taught, met with patients, supervised staff

Abolishing a position for economic reasons

Abolishing a position for economic reasons

Decision of the Commissioner of Education, Decision No. 17,142

The Director of Athletics and Physical Education [Petitioner] was granted tenure in this tenure area in 2008. In May 2013 the superintendent of schools advised the Petitioner that his position was to be abolished for economic reasons and at its meeting held on June 20, 2013, the School Board approved the superintendent’s recommendation to abolish the Petitioner position effective June 21, 2013.  

Petitioner appealed the School Board's action to the Commissioner of Education contending that [1] his position was improperly excessed in violation of §135.4 of the Commissioner’s regulations, which regulation requires all public school districts with a high school to employ a director of physical education and [2] he was terminated in bad faith because the district created several new positions after he was terminated. He asked the Commissioner of Education to direct that the School Board reinstate him to his former position, with back pay and benefits. 

In response, the School Board alleged that it had the statutory authority to abolish Petitioner’s position for sound economic and budgetary reasons and that it acted in good faith in its decision to abolish Petitioner’s position.  In addition, the School Board asserted that no new employee has been hired to replace Petitioner and that, instead, the his duties had been distributed "among three long-standing employees; none of who are performing more than 50% of Petitioner’s former duties."*

The Commissioner ruled that Petitioner request that he be reinstated to this prior position was moot as he had earlier been reinstated to his former position.**

However, the Commissioner declined to dismiss Petitioner's claim that the School Board acted arbitrarily and “without a rational basis” in abolishing his position. With respect to the merits of this claim, the Commissioner noted that it was "well-settled that the authority to create and/or abolish positions rests with the board of education, which may abolish and/or consolidate positions for sound economic reasons, so long as the decision is not motivated by bad faith."

In an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

Here the superintendent said that the decision to abolish Petitioner’s position was driven by budgetary constraints and her affidavit explained that "the district paid three current administrators a small stipend to carry out a portion of Petitioner’s former duties, instead of paying Petitioner’s high salary, which resulted in a cost savings to the district of approximately $144,975." The School Board contended that it is permissible for a board of education, acting in good faith, to abolish a position for economic reasons and fractionalize its duties among multiple other existing positions.

The Commissioner ruled that Petitioner [1] failed to refute respondent’s assertion that his position was abolished in order to realize cost savings from fractionalization of his duties and [2] failed to demonstrate that by abolishing the Director of Athletics and Physical Education position, the School Board violated 8 NYCRR §135.4(c)(4)(iii).

The Commissioner said that the record indicated that the school district continued to employ a Director of Physical Education [40%] following the abolition of Petitioner’s position, ruling that this complied with this regulation.  The Commissioner commented that "even if more than 50% of the duties of Petitioner's former position involved his responsibilities as Director of Athletics and Physical Education, the regulation does not prescribe a particular percentage of duties that must be dedicated to the responsibilities of a Director of Physical Education."

Petitioner also alleged that the School Board acted in bad faith as evidenced by its creating new positions, including a Director of Social Studies, Director of Science, Technology and Engineering, Director of Science and an Assistant Superintendent for Special Education position.  

The Commissioner said that the burden of proving bad faith is on the party asserting it, and indicated that the fact that other new positions unrelated to Petitioner’s former position were created at the same time or after the abolition of a position for economic reasons does not in and of itself support finding that the School Board acted in bad faith. The Commissioner ruled that "[o]n the record before me, Petitioner has not met his burden of proving that his position was abolished in bad faith."

In addition, Petitioner did not establish that the duties of the new positions he cited were similar to those of his former position.  Rather the duties of Petitioner’s former position "were fractionalized and re-distributed among three current employees."  As Petitioner’s position was abolished for fiscal reasons and none of "the current three employees" were assigned more than 50% of the duties of his former position, the Commissioner found that the School Board had properly abolished his position, which action resulted in his being excessed and his name being placed on a preferred list.

* In Currier v Tompkins-Seneca-Tioga BOCES, 80 AD2d 979, the Appellate Division ruled that the reassignment of the work of the incumbent of an abolished position among five other (retained) employees, none being assigned more than 50% of the duties of the abolished position, was lawful.

** Petitioner was reinstated as Director of Athletics, Physical Education, Health and Chairperson District-wide Health and Safety Team from the relevant preferred eligible list effective August 31, 2015 

 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17142

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