Appeal of Richard A. Mikulek regarding the use of library funds, property and staff

Appeal of Richard A. Mikulek regarding the use of library funds, property and staff

Decisions of the Commissioner of Education, Decision No. 17,277

Richard A. Mikulek [Petitioner] appealed certain actions of the Board of Trustees of the Fairport Public Library [Board], alleging the Board had improperly gifted library funds, among other things, to a third party, the "Friends of [the] lFairport Public Library [FFPL].* 

The Commissioner's decision frames the underlying facts as follows: FFPL is an entity whose main purpose is to provide support to the Library in various ways.  At issue in the instant appeal are book sales the FFPL conducts.  The proceeds from these book sales provide a source of funding for various Library activities, programs, and purchases.  The Library apparently maintains bins for its patrons to donate their used books.  These used books are then donated by the Library to the FFPL to be sold at a book sale.  During normal Library business hours, the sale of these books, still located at the Library, are handled by Library staff.

Petitioner and the Board disagreed over the extent to which the Library may make such donations to FFPL and the bounds of a permissible relationship between the Library and FFPL.

The Commissioner, after setting out an extensive background statement concerning the positions of the parties, said that "[t]he appeal must be dismissed for failure to join a necessary party."  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner, here FFPL, was a necessary party but was not joined as such.

Addressing additional procedural infirmities, the Commissioner said:

1. To the extent Petitioner requests the removal of trustees through an order requiring their resignation, such a claim must be dismissed for lack of subject matter jurisdiction.  Education Law §306 authorizes the Commissioner of Education to remove members of a board of education, superintendents and other school officers for willful violations of law or neglect of duty.  A public library trustee is not a “school officer” as defined in Education Law §2(13), and such a trustee is not among the officers listed in §306. Therefore, such a trustee is not subject to removal by the Commissioner pursuant to Education Law §306.

2. Petitioner also asked that the Commissioner order a “full audit” of the Library’s financial records by an independent auditor who will make a presentation to the community on the his/her findings in a public forum prior to next year’s budget."  However, an appeal to the Commissioner is appellate in nature and does not provide for investigations.

3. As to Petitioner's requesting several advisory opinions based on Education Law §226(6) and its impact on the actions of the Board and the FFPL, including the Library donations of surplus books to a not-for-profit which shares the Library’s website; the ownership of donations that are received from the Library; and whether discussion of FFPL business at Library board meetings causes it to become “associated” with the Library and no longer an independent non-for-profit corporation, "[i]t is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310." Thus, such requests for advisory opinions must be denied.

That said, the Commissioner addressed Petitioner's claims that the Board continues to allow the FFPL to use Library resources, including its facilities and books received from the Library, and continues to allow the use of its communications facilities and employees to further the book sales conducted by the FFLP and alleges that in so doing, the Library violates the prohibition in New York State Constitution, Article VIII §1 of the "gift-giving" public monies.

The Commissioner declined  to dismiss the appeal to the extent Petitioner "seeks an order directing [the Board] to cease allowing the use of its resources by the FFPL because it allegedly involves an unconstitutional gift," noting that "Even if the appeal were not dismissed for non-joinder of the FFPL as a necessary party, it would be dismissed on the merits."

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 the petitioner seeks relief. On this record, said the Commissioner, "I find that Petitioner has not met his burden of proving that [the Board] has violated Article VIII, §1 of the New York State Constitution, or any other provision of law, with respect to the book sales by the FFPL.

The Commissioner cited Chapter 96 of the Laws of 1987, which, among other things, amended Education Law §226(6)(b) by removing a requirement that donations of books by a public library to a not-for-profit must have no market value, contained a “Legislative findings” that stated in part: The legislature recognizes that as the repository of the art and knowledge of our civilization, library books are capable of continuing to provide a benefit to the community even after a library determines that they are surplus or of such condition that they are no longer suitable for library use.  The legislature hereby finds that the donation of such used or surplus books to not-for-profit corporations or political subdivisions is a public purpose and that such continued use of used or surplus books will provide an important benefit to the general public. (Emphasis in the Commissioner's decision.) 

Based on the Legislature’s finding, the Commissioner ruled that that "a public library’s donation of used or surplus books, pursuant to Education Law §§226(6)(b) and 260 to a not-for-profit corporation such as the FFPL is a public purpose."

Also noted in the decision was that the record indicated that "FFPL is taking used books donated to the Library and a small percentage of books originally purchased by the Library and subsequently discarded by the Library as surplus books and conducting book sales to the public." Further, the Board and FFPL indicate that the proceeds of such book sales "are used to provide funding for library activities, programs and purchases." The Commissioner opined that "Such an arrangement is entirely consistent with Education Law §§226(6) and 260 in that the FFPL is conducting the sale of used or surplus books for the benefit of the Library."

Additional findings by the Commissioner include:

a. Donation of books to the FFPL under such circumstances clearly serves a proper library and public purpose by raising funds to support library programs and activities. 

b. Use of the Board's library resources to promote book sales by the FFPL for the benefit of the Library, including its facility, communications facilities and employees, also serves a proper library and public purpose.  

Finally, although the appeal was dismissed for the reasons stated above, the Commissioner urged the Board to avoid future such appeals by being more transparent about the fund-raising activities of the FFPL.  

As the Board knows that FFPL provides the Library with approximately $15,000-$20,000 each year to support library programs and activities, the Commissioner said that "it should be an easy matter for the Board to document what those programs and services are and to identify to the public upon request where in the Library budget those contributions appear."  In so doing, the Board should be able to persuasively document that the FFPL’s activities are of substantial benefit to the Library rather than responding in generalities as it did with Petitioner’s inquiries.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17277

Paid Family Leave

Paid Family Leave
Source: New York State Department of Labor

 
Effective January 1, 2018, most employees who work in New York State for private employers are eligible to take Paid Family Leave, [see Workers' Compensation Law §200 et. seq., The Disability Benefits Law and the Paid Family Leave Benefits Law]. In addition, many public employers provide Paid Family Leave.

New York’s paid family leave law provides job-protected, paid time off so employees can bond with a newly born, adopted or fostered child; care for a close relative with a serious health condition; or assist loved ones when a family member is deployed abroad on active military service.

The employee is able to continue his or her health insurance while on leave and is guaranteed the same or a comparable job after the leave ends. If the employee contribute to the cost of health insurance, he or she must continue to pay the premium cost while on Paid Family Leave. 

Information for employers is posted on the Internet at: https://paidfamilyleave.ny.gov/paid-family-leave-information-employers

 

Information for employees is posted on the Internet at: https://paidfamilyleave.ny.gov/paid-family-leave-information-employees

Information for health care providers is posted on the Internet at: https://paidfamilyleave.ny.gov/paid-family-leave-information-health-care-providers

 

Additional New York Paid Family Leave Law information is available on the Internet at: https://paidfamilyleave.ny.gov/

FMLA Law News Update December 2017

FMLA Law News Update December 2017

Source: fmlalaw | December 13, 2017

Click on text highlighted in color to access the full report

Timing Is Everything: FMLA Claim Survives Summary Judgment …
The National Law Review-Nov 21, 2017
Employees requesting, currently taking, or just returning from leave under the Family and Medical Leave Act (“FMLA”) can be terminated for legitimate reasons that are unrelated to their FMLA leave. This point is exemplified by Jennings v. Univ. of N.C., N.C. Ct. App., Case No. COA16-1031 (July 5, 2017), …

Reassignment can be post-FMLA accommodation
Business Management Daily-Dec 11, 2017
When a disabled employee wants to return to work, limitations may make it impossible for him to do his old job. If so, it may be reasonable to either grant more leave or reassign the employee—or both. The worker may prefer another accommodation, but it’s the employer’s choice. Recent case: Gary …

FMLA FAQ: If an Employee Racks Up Both FMLA and Unexcused …
Lexology-Dec 8, 2017
Mary Beth is a nurse for a local hospital and has been diagnosed with cancer and asthma. Over the course of about one year: 1. She is certified for FMLA leave for her cancer and asthma;. 2. She incurs a total of 13 intermittent absences in a 12-month period;. 3. A handful of these absences relate to her …

Terminated employee's civil rights violation claim dismissed pursuant to the doctrine of res judicata

Terminated employee's civil rights violation claim dismissed pursuant to the doctrine of res judicata

Russo v. City of New York, USCA, 2nd Circuit,  17-233-CV*

United States District Court for the Eastern District of New York  dismissed Anthony J. Russo's claim brought under 42 U.S.C. §1983. The district court sua sponte** dismissed Russo’s complaint pursuant to 28 U.S.C. §1915(e)(2)(B) and the doctrine of res judicata.***

Russo had been terminated by the New York City Board of Education as the result of an arbitration conducted pursuant to §3020-a of the New York State Education Law. Although Russo brought a CPLR Article 75 action challenging the arbitration award in New York State Supreme Court, the award was ultimately affirmed by the New York State Court of Appeals.

The Second Circuit affirmed the district court dismissal Russo’s complaint and the denial of his motion for reconsideration on the ground that Russo’s claims are barred by the doctrine of claim preclusion. We note at the outset that “the failure of a defendant to raise res judicata does not deprive a court of the power to dismiss a claim on that ground” in large part because of “the strong public policy in economizing the use of judicial resources by avoiding relitigation.

The Circuit Court then found that the dismissal Russo's petition on the basis of res judicata was appropriate in this case because Russo raises claims that are premised entirely on the same set of facts and alleged misconduct as the facts and misconduct alleged in his state court action, and because the initial state forum had the power to award the full measure of relief sought in this §1983 action.

Further, said the court, "even though Russo’s federal claims were not raised and litigated in his state action, there was no error in the district court’s decision to dismiss these claims on the grounds that they were barred by the state court judgment."

*N.B. Summary order - rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January 1, 2007, is permitted and is governed by federal rule of appellate procedure 32.1 and the 2nd Circuit's local rule 32.1.1.

** An action taken by the court without a formal motion by a party.

*** A matter that has been adjudicated by a court of competent jurisdiction and as a result not be relitigated further by the same parties.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/cc7bc7e6-927e-417c-9f36-b426227d82f7/14/doc/17-233_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/cc7bc7e6-927e-417c-9f36-b426227d82f7/14/hilite/

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 December 13, 2017

Click on text highlighted in color to access the full report 

Supervising company may be liable for harassment of female construction worker

Trump DOJ reverses course on public sector ‘agency fees’

Bipartisan bill would invalidate predispute agreements to arbitrate a ‘sex discrimination dispute’

Second Circuit finds trial court got Glatt right; magazine interns reap educational benefits, not pay

Possessing “over-the-counter and, or, prescription drugs or harmful substances” on school property

Possessing “over-the-counter and, or, prescription drugs or harmful substances” on school property

Decisions of the Commissioner of Education, Decision No. 17,269

The lunch bag belonging to a student [W.H.] who is the subject of this appeal was found to have in it "over the counter medication.”  The principal advised W.H.'s parents [Petitioners ] that W.H. would be suspended for three days based upon his possession of “over the counter medication.” Petitioners told the principal that the pills were “vitamin C, Olive Leaf extract and Echinacea supplements.” 

The principal advised Petitioners that, in accordance with school policy, over the counter medications must be authorized by parents and physicians and may only be administered by the school nurse.  The principal requested that the student be immediately picked up from school. The school principal then advised Petitioners that W.H.'s possession of the supplements violated the portion of Marathon Central School District's code of conduct prohibiting “conduct that endangers the safety, morals, health, or welfare of others.”  A second letter described the supplements as “unknown substances” and noted that the student “admitted to having them in his possession.”

Petitioners subsequently met with the superintendent and the principal and explained that [1] they were aware of the district's policy concerning the administration of over-the-counter medications and [2] the pills which the student possessed were nutritional supplements, which the Food and Drug Administration considers food, not drugs. 

The superintendent declined to modify the student’s three-day suspension, and Petitioners thereafter appealed to school board. The president of the school board told Petitioners that the board had considered their appeal and upheld the three-day suspension and Petitioners appealed to the Commissioner seeking to have the student’s suspension be expunged from his record.

After considering a number of procedural issues, the Commissioner considered the merits of Petitioners' appeal and said that "in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief."

In this instance the Commissioner found that Petitioners had "met their burden of proof to show that [the school board's] decision was arbitrary and capricious. The Commissioner explained that Petitioners asserted, and the school board has not refuted, that the student possessed vitamins and herbal supplements which the Food and Drug Administration classifies as foods, not drugs.  Further, Petitioners admitted that they were and are aware of the school district's policy which prohibits the possession of “over-the-counter and, or, prescription drugs or harmful substances,” but contended that the “food” possessed by the student did not fall into any of these categories. 

In contrast the Commissioner found that the school board had not submitted any proof to refute Petitioners’ allegations or establish that the vitamins and herbal supplements at issue were over-the-counter drugs or harmful substances within the meaning of its policy that would support a finding that the student engaged in “conduct that endanger[ed] the safety, morals, health or welfare of others.”

Accordingly, the Commissioner ruled that "on this record" Petitioners have met their burden of proving that the student’s conduct was not prohibited by any portion of school board's code of conduct and ordered that W.H.'s suspension "be expunged from his record."

In addition, the Commissioner observed that:

1. Although the school district had argued that the supplements were subject to prohibition as “look-alike” drugs, this rationale is not supported by the evidence in the record as the school board had not established on this record that its code of conduct prohibits the possession of “look-alike” drugs or that the principal, superintendent or the school board relied upon such reasoning in imposing or upholding W.H.'s disciplinary penalty. 

2. Although the school board failed to demonstrate on this record that its code of conduct prohibits possession of vitamins, herbal supplements or “look-alike” drugs, nothing in this decision should be construed as prohibiting the school district from adopting a code of conduct which clearly apprises students and parents that students may be subject to discipline for the unauthorized possession of nutritional supplements, herbal remedies or look-alike drugs.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17269