A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

A school board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty

Application for the removal of certain school officials, Decisions of the Commissioner of Education, Decision No. 17,307

Monique McCray, Doris Dodson and Kelly Valentin [Petitioners] submitted an appeal to the Commissioner of Education seeking for the removal of certain  members of the Board of Education of the Central Islip Union Free School District, the removal of Dr. Craig Carr as Superintendent [collectively Respondents] involving was school constructions project substantially completed by May 2004.

At the result of Central Islip's failure to timely file final cost reports concerning the construction projects to the State Education Department [SED], SED, except for one project, discontinued the apportioned payments and sought to recoup the state aid apportionments in the amount $13,619,929 in "overpayments" over the course of three years by annual deductions from Central Islip's general State aid payments.

Central Islip then initiated an Article 78 in Supreme Court, contending that it was "entitled" to the overpayment claimed by SED. Supreme Court granted Central Islip's request for a temporary restraining order, which resulted in a payment from SED to Central Islip in the amount of approximately $7.5 million during the 2011-2012 school year. Governor Andrew Cuomo, however, had then signed Chapter 57 of the Laws of 2012 excusing "the actions and omissions of any school district which failed to file timely final cost reports for otherwise eligible school construction projects so long as the reports were filed by December 31, 2012.” If the school district filed by this deadline, Chapter 57 required SED to pay apportioned aid to the district in full except for a late filing penalty.[1] 

In March 2014, the Office of the New York State Comptroller [Comptroller] issued a report of examination entitled “Central Islip Union Free School District Financial Management” which covered the period from July 1, 2012 to June 30, 2013. The Comptroller concluded that district officials had “underestimated revenues and overestimated expenditures in the School Board-adopted budgets for fiscal years 2008-09 through 2012-13 ....”  The Comptroller also noted that, after Central Islip learned of the potential $13.6 million liability to SED in February 2010, “the entire amount needed was accumulated in unexpended surplus funds by the end of the 2010-11 fiscal year, due to the operating surplus incurred that year.”  Although district officials had “hoped that funds for this contingent liability could be placed in a reserve and excluded when calculating the statutory limit,” the Comptroller opined that “there is no statutory authority to establish a reserve for this liability.”

Petitioners in this appeal to the Commissioner contended that the Respondents willfully violated the Real Property Tax Law [RPTL] §1318 by retaining funds greater than four percent of the next fiscal year’s budget for the 2010-2011, 2011-2012 and 2012-2013 fiscal years and that during this period although the community was experiencing economic decline and high home foreclosure rates, district officials increased the tax levy, generating operating surpluses in excess of $25 million from 2008-2009 through 2012-2013.

The Petitioners also argued that Respondents had "a responsibility ... to bring information to the community about matters that affect their legal obligation to pay taxes” and “were obligated to be truthful and ethical and not jeopardize the community’s trust.” 

McCray and Dodson were alleged to have “raised questions about the [d]istrict’s practices of deliberately creating excess funds by under estimating revenue and over estimating expenditures” at an April 8, 2013 board meeting, and Respondents “acknowledge[d]” that there were “no internal controls to measure whether budget expenditures are efficient and increases are warranted.”  Petitioners request that Respondents be removed from their respective offices.

The Commissioner first address what she characterized as a "preliminary matter," Respondents claim that she would be "unable to issue an impartial decision in this matter because ... the application concerns an ongoing dispute between SED and respondent board."

The Commissioner, noting that Education Law §306 provides for an application to the Commissioner of Education when a petitioner seeks the removal of a board member or school officer, said that although "recusal may be necessary in an adjudicatory proceeding before the Commissioner under certain circumstances," she found that no such circumstances existed in this case.  In particular, the Commissioner said that she did not find that the lawsuit, which has concluded, "compromises [her] impartiality or otherwise requires [her] recusal in this case.

After addressing a number of procedural issues, the Commissioner addressed the Petitioners' appeal and found that [a]lthough the application must be denied as untimely, it would also be denied on the merits."

The Commissioner explained that RPTL §1318(1) provides that at the conclusion of each fiscal year, a board of education must apply any unexpended surplus funds to reduce its tax levy for the upcoming school year.  Surplus funds are defined as “any operating funds in excess of four percent of the current school year budget, and shall not include funds properly retained under other sections of law.” The Commissioner then observed that it has been "repeatedly held that, at the end of each school year, all unexpended operating funds in excess of the statutorily permitted four percent of the amount of the budget for the upcoming school year must be applied to reduce the tax levy."

As to Petitioners' seeking the removal of a member of the board of education or a school officer, Education Law §306 so permits "when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education." Further, said the Commissioner, to be considered willful, "the board member or officer’s actions must have been intentional and with a wrongful purpose."

Observing that in an appeal to the Commissioner, the 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, the Commissioner decided that while Petitioners in this appeal have alleged and proved violations of the RPTL, which Respondents have in fact admitted, "the actions of which [P]etitioners complain do not rise to the level of a willful violation or neglect of duty under the Education Law."

In the words of the Commissioner, "[P]etitioners have produced no evidence that any [R]espondent acted with a wrongful purpose" nor have Petitioners contested Respondents' contention that "that they took the actions which resulted in the accumulation of unexpended surplus funds during the disputed timeframe after receiving the advice of counsel."

Citing a number of Decisions of the Commissioner of Education, including Application of Goldin, 39 Ed Dept Rep 14, Decision No. 14,158, the Commissioner opined that "It is well-settled that a board member who acts on the advice of counsel will not be found to have engaged in a willful violation or neglect of duty that would justify removal under Education Law §306" and denied the Petitioners' application.

Addressing one final administrative matter, the Commissioner granted the Respondents'  have request for Certificates of Good Faith pursuant to Education Law §3811(1) thereby authorizing the School Board to indemnify them for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his or her powers or performance of duties as a board member or other title listed in §3811(1).  

As it is appropriate to issue such certification unless it is established on the record that the requesting respondent acted in bad faith, the Commissioner concluded that as there has been no finding that any respondent acted in bad faith, she so certified "solely for the purpose of Education Law §3811(1) that ... Philips, Devine, Softy and Carbajal are entitled to receive the requested certificate [and] to the extent such a certificate is necessary, that [R]respondent Carr, who was the superintendent at the time of the events giving rise to this application, is also entitled to receive the requested certificate."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17307

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[1] Following passage of this legislation, Supreme Court dismissed the board’s lawsuit as moot on January 30, 2013, which was affirmed by the Appellate Division on October 30, 2014 (see Bd. of Educ. of Cent. Islip Union Free Sch. Dist. v. Steiner, 121 AD3d 1473).

Imposing sanctions based on frivolous litigation challenging the termination of an individual's employment

Imposing sanctions based on frivolous litigation challenging the termination of an individual's employment

Jiggetts v New York City Human Resources Admin., 2017 NY Slip Op 09236, Appellate Division, First Department

A  per diem employee, Kyle Jiggetts, was terminated from his position with the New York City Department of Homeless Services [DHS] 1994.

Jiggertts challenged his termination and an arbitrator concluded that, as a per diememployee, he could not challenge the termination of his employment under the disciplinary review procedures set forth in the controlling collective bargaining agreement.

Jiggetts, however, "continued to pursue lawsuits long after their lack of any legal basis was made apparent to him" and ultimately Supreme Court granted DHS's motion for sanctions. Jiggetts appealed.

The Appellate Division opined that given Jiggetts history of frivolous litigation, Supreme Court had providently exercised its discretion in imposing sanctions, which consisted of:

1. Ordering Jiggetts to pay $10,000;

2. Enjoining Jiggetts from commencing any further actions or proceedings arising out of his termination of employment from DHS without prior leave of the court.

The Appellate Division further explained that "[t]o the extent Jiggetts' remaining claims of discrimination and retaliation are not barred by res judicataprinciples based on prior federal and state court rulings rejecting his challenges to HRA's termination of his employment in 1994, they are barred by the applicable statutes of limitations, as the instant petition, filed in 2015, was commenced more than three years after petitioner was terminated in 1994."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09236.htm

The unauthorized removal of inoperative medical equipment may not constitute misconduct

The unauthorized removal of inoperative medical equipment may not constitute misconduct

OATH Index No. 2286/17

A respiratory therapist [RT] was charged with removing a respiratory device from a patient, failing to notify a doctor or clinical team that respiratory device had been removed, and failing to respond when summoned to report to the emergency department to provide respiratory care for a trauma patient.

OATH Administrative Law Judge Astrid B. Gloade credited proof showing the patient broke the device before RT had removed it and recommended dismissal of the charge related to RT removal of the device from the patient. In effect, Judge Gloade found that an unauthorized removal of a patient’s inoperative respiratory machine did not constitute misconduct on the part of RT under the circumstances.

In contrast, the ALJ found that RT's failure to notify the clinical team that of the removal the nonfunctioning device from the patient and RT's failure to respond when summoned by the emergency department constituted misconduct for which RT could be sanctioned in an administrative disciplinary action.

Accordingly, Judge Gloade, recommended that RT be suspended for sixty-days without pay.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2286.pdf

Applying for reimbursement of reasonable counsel fees and litigation expenses associated with being a named respondent in a 42 USC §1983 Civil Rights action pursuant to Public Officers Law §17

Applying for reimbursement of reasonable counsel fees and litigation expenses associated with being a named respondent in a 42 USC §1983 Civil Rights action pursuant to Public Officers Law §17

Rademacher v Schneiderman, 2017 NY Slip Op 08416, Appellate Division, Third Department; decided with Swack v Schneiderman, Appellate Division, Third Department; 2017 NY Slip Op 08421*

In March 2012 an inmate at Attica Correctional Facility, George Williams, brought a 42 USC §1983 action alleging that Matthew Rademacher, a correction officer, and certain other correction officers, violated his civil rights by physically attacking him without justification and the filed false reports and statements that resulted in disciplinary sanctions against him. Williams contended that all the correction officers involved were acting within the scope of their employment at the time.

Rademacher requested, and the respondent in this action, Eric T. Schneiderman, as Attorney General of the State of New York [Law Department], said that the State, pursuant to Public Officers Law §17, would reimburse Rademacher for the reasonable counsel fees and litigation expenses associated with his defense in Williams' 42 USC §1983 action.

In January 2013, Rademacher and two of the other correction officers were indicted on charges of gang assault in the first degree, tampering with physical evidence and ]official misconduct. Ultimately Rademacher, in full satisfaction of the indictment, pleaded guilty to the charge of official misconduct. Pursuant to the plea agreement, Rademacher was sentenced to "a one-year conditional discharge" and he resigned from his position as a correction officer.

The Williams Civil Rights action pursuant to 42 USC §1983, however, had been stayed during the pendency of the criminal action and in May 2015, the Law Department advised Rademacher that in consideration of his guilty plea, the State no longer had a duty to pay for his legal representation in the Williams action pursuant to Public Officers Law §17. 

Rademacher initiated a CPLR Article 78 proceeding in Supreme Court seeking, among other things, an order compelling the Law Department to rescind its determination and pay for his legal defense in the Williams action. Supreme Court granted Rademacher's application and the Law Department appealed.

The Appellate Division initiated its analysis of the case by stating that there was no  question that the State initially had a duty to defend Rademacher in the Williams action §1983 complaint alleged that, while acting within the scope of his employment as a correction officer, [Rademacher] "caused Williams to suffer physical, emotional and psychological injuries by physically attacking him, intentionally and without justification, and thereafter authoring or engineering written statements and reports falsely accusing him of various crimes, offenses and rules violations."

The Law Department, however, argued that the State's duty to defend Rademacher ceased once he pleaded guilty to official misconduct because "the guilty plea established, as a matter of law, that the allegations underlying the civil complaint arose outside the scope of [Rademacher's] employment and were the result of intentional misconduct."

The Appellate Division disagreed, explaining that:

1. "As is the case in the private insurance realm, the state's determination to disclaim financial responsibility for an employee's defense is rational only if it can be determined, as a matter of law, 'that there is no possible factual or legal basis on which [the State] may be obligated to indemnify the employee'";

2. Pursuant to Public Officers Law §17 (3) (a), the State has an obligation to indemnify its employees for any judgment or settlement obtained against them in state or federal court, so long as "the act or omission from which [the] judgment or settlement arose occurred while the employee was acting within the scope of his [or her] public employment or duties" and "the injury or damage [did not] result[] from intentional wrongdoing on the part of the employee." In other words, said the court, the State will not have a duty to indemnify an employee if the act or omission giving rise to the civil judgment or settlement occurred outside the scope of his or her employment or was the product of intentional wrongdoing; and

3. Neither Rademacher's allocution** of his actions in his plea nor the elements of official misconduct preclusively established that the acts alleged in the 42 USC 1983 complaint occurred while Rademacher was acting outside the scope of his employment or that the injuries or damages allegedly sustained by Williams were the result of Rademacher's intentional wrongdoing.

The Appellate Division said that Rademacher, "[i]n allocuting to this crime," did little more than recite the elements of official misconduct, adding only that "he committed the unauthorized act on August 9, 2011 in Wyoming County while employed by the Department of Corrections and Community Supervision."

However, said the court, assuming, as the Law Department contended, that the commission of an unauthorized act for purposes of an official misconduct conviction falls outside the scope of employment and constitutes intentional wrongdoing, Rademacher's plea allocution did not particularize the unauthorized act that he committed or otherwise include admissions to any of the conduct alleged in the civil complaint in the Williams action.

Accordingly, the Appellate Division held that it could not conclude, as a matter of law, "that there is no possible factual or legal basis on which the state may eventually be obligated to indemnify [Rademacher]." This, said the court, is because the state must defend the entire action "[i]f any of the claims against [its employee] arguably arise from covered events."

N.B. In the event a public officer or employee in a defendant in a criminal action, §19.2.(a) of the Public Officers Law provides, in pertinent part, that "it shall be the duty of the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such employee was acting within the scope of his [or her] public employment or duties upon his [or her] acquittal or upon the dismissal of the criminal charges against him [or her] or reasonable attorneys' fees incurred in connection with an appearance before a grand jury which returns no true bill against the employee where such appearance was required as a result of any act which occurred while such employee was acting within the scope of his [or her] public employment or duties unless such appearance occurs in the normal course of the public employment or duties of such employee.

It should also be noted that although not every employee is a public officer, all public officers are public employees.

* With the exception of the name of the Petitioner in Swack v Schneiderman, the facts and procedural history in the Swack v SchneidermanCPLR Article 78 proceeding are indistinguishable from those in Rademacher v Schneiderman.

** An allocution is a formal statement made to the court by the defendant who has been found guilty prior to being sentenced. An accused who had pleaded guilty to a criminal  charge or who had pleaded nolo contentere is deemed to "having been found guilty" of that criminal charge. However, although  a plea of nolo contendere has the same immediate effect as a guilty plea, it cannot be used against the individual in another cause of action.

TheRademacher decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08416.htm

The Swack decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08421.htm

Audits and examination reports issued on January 17, 2018 by NYS Comptroller Thomas P. DiNapoli

Audits and examination reports issued on January 17, 2018 by NYS Comptroller Thomas P. DiNapoli 

Click on text highlighted in color to access the full report

State Education Department: Kennedy Child Study Center: Compliance with the Reimbursable Cost Manual (2017-S-7)Kennedy is a New York City-based not-for-profit organization authorized by SED to provide preschool special education services to children with disabilities who are between the ages of three and five years. During the 2013-14 school year, Kennedy served about 345 students. The New York City Department of Education (DoE) refers students to Kennedy and pays for its services using rates established by SED. The DoE is reimbursed by SED for a portion of its payments to Kennedy. For the three fiscal years ended June 30, 2014, auditors identified $612,781 in reported costs that did not comply with state guidelines for reimbursement.
       
Public Service Commission: Pipeline Safety Oversight (Follow-Up) (2017-F-20)
An initial report issued in March 2016 found Department of Public Service (DPS) staff working under the Public Service Commission did not verify the accuracy of the information on employee/contractor qualifications maintained by individual operators. DPS staff rely on this data during field audits. In addition, DPS had not set up a process to identify instances where operators failed to notify them of specific gas-related incidents as required. In a follow-up, auditors determined DPS officials made significant progress in addressing the issues identified in the initial audit.

New York City Department for the Aging: Congregate Meal Services for the Elderly (2016-N-5)
Auditors found that DFTA officials could not demonstrate that they contracted with optimally located senior centers to ensure the maximum number of eligible senior citizens can take advantage of the congregate meals being offered. DFTA did not perform any analysis to determine whether the costs submitted by sponsors were reasonable.  Auditors also reviewed the sponsors’ administrative costs for four randomly selected senior centers and found that one overstated its February 2016 invoice by $12,006, and may have received $120,570 in overpayments during the fiscal year ended June 30, 2016.

New York State Health Insurance Program: United HealthCare (UHC): Improper Payments for Medical Services Designated By Modifier Code 59 (Follow-Up) (2017-F-23)
An initial audit report released in January 2015, identified 13 claims out of a sample of 245 that were overpaid by $39,345 because a distinct or independent service was not provided as required even though the services were designated as such with modifier 59. Based on statistical sampling techniques, auditors estimated that UHC overpaid between $1.6 million and $5.2 million for services that included modifier 59 during the one-year period ending Aug. 31, 2013. In a follow-up, auditors found UHC officials made significant progress in addressing the issues identified in the initial audit. UHC also recovered $29,856 of the $39,345 in identified overpayments.

State University of New York: Compliance With Payment Card Industry (PCI) Standards (Follow-Up) (2017-F-24)
An initial audit report issued in June 2016 found that although SUNY schools were generally knowledgeable about PCI compliance and the need to protect credit card data from unauthorized access, a range of weaknesses were found. In a follow-up, auditors found SUNY schools and the SUNY System Administration have made significant progress in implementing the recommendations identified in the initial report.

Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances

Workers' Compensation Board's refusal to direct a further development of the record based on an earlier decision concerning the matter was an abuse of its discretion under the circumstances
Page v Liberty Cent. Sch. Dist., 2017 NY Slip Op 08921, Appellate Division, Third Department

Angela Pageapplied for and was awarded workers' compensation benefits in 2004 based upon her claim for hypersensitivity reaction to the presence of fungi at her worksite. A Workers' Compensation Law Judge [WCLJ] subsequently determined that Page had a causally-related permanent total disability.

The Workers' Compensation Board reversed the WCLJ's finding of a permanent total disability, crediting the opinion of an impartial specialist selected by the Board to examine Page. The specialist had found that Page "had no continuing causally-related disability."

Page initiated a number of appeals and ultimately the Appellate Division affirmed the Board's decision on procedural grounds, finding that Page's failure to timely appeal a Board decision in 2012 precluded her from challenging the Board's finding of no further causally-related disability.

However, in 2014, a physician, Jeffrey Newton, evaluated Page for the purpose of assessing her "psychological treatment needs in connection with her longstanding multiple chemical sensitivity syndrome." Newton diagnosed Page as suffering from consequential adjustment disorder with anxious and depressed mood. Based upon Newton's opinion, Page requested a hearing to address her claim for benefits based on her alleged consequential psychological injury.

A WCLJ found prima facie evidence for consequential depression and directed the employer to obtain an independent medical examination on this issue. Upon review, however, the Board reversed the WCLJ, finding that further development of the record was not proper inasmuch as its December 2012 decision "established that Page did not have a further causally-related disability, without which there could be no consequential condition." Page appealed  the Board's ruling.

The Appellate Division reversed the Board's determination explaining that as a general rule "...the Board's determination of whether or not to allow further development of the record on a particular issue will not be disturbed absent an abuse of discretion," held that in this instance the Board holding that further development of the record was improper because it had determined in 2012 that [Page] no longer suffered from a causally-related disability and, without a further causally-related disability, there could be no disability from which a consequential condition could arise" constituted an abuse of discretion.

The court said that the record reflects that Page's claim was amended to include multiple chemical sensitivity in 2006. Further, in its 2012 decision the Board noted that, although its medical expert "was of the opinion that multiple chemical sensitivity is not a medically-recognized condition, he credibly testified that he was capable of independently determining, based upon a physical examination, whether [Page] was disabled."

Although the Board ultimately relied its medical expert's physical examination in concluding that Page no longer suffered from a causally-related disability, in so doing the Board made no findings suggesting that Page did not suffer from a causally-related disability from 2004 to 2011.

Accordingly, the Appellate Division concluded that the Board's finding that, as of 2012, Page no longer had a causally-related disability did not preclude Page from raising the issue of a psychological injury consequentially related to her prior established claims of hypersensitivity reaction to fungi and multiple chemical sensitivity.

As the record indicated that Page was diagnosed and treated for psychological injuries during that time and that, with regard to the issue of causation, Page's "psychological condition is clearly causally related to [her] . . . work place originating condition," the Appellate Division concluded that the Board abused its discretion by finding that further development of the record on this issue was improper based upon its 2012 decision.

The court reversed the Board's decision and remanded the matter to a WCLJ for the "further development of the record."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08921.htm

Administrative due process in disciplinary actions

Administrative due process in disciplinary actions

Jacobson v Blaise, 2018 NY Slip Op 00205, Appellate Division, Third Department

Although this litigation concerned student discipline at a State University of New York campus, a number procedural issues are addressed that are but rarely focused on in considering matters involving administrative due process. The following are among the issues considered:

1. Constitutional due process rights: The New York State Department of Education has said that the student disciplinary process outlined in Education Law §6444(5)(b) "... should not be read to extend to private colleges the constitutional due process rights that apply to public colleges."

2. Presumption of innocence: Throughout the proceedings an accused student enjoys "the right to a presumption that [he or she] is 'not responsible' until a finding of responsibility is made" (Education Law §6444[5][c][ii]).[1]

3. Discovery: Citing Matter of Weber v State Univ. of N.Y., Coll. at Cortland, 150 AD3d 1429, the Appellate Division said there is no "general constitutional right to discovery in . . . administrative proceedings."

4. Cross-examination: The Appellate Division explained that, in general, there is a limited right to cross-examine an adverse witness in an administrative proceeding [see Matter of Weber v State Univ. of N.Y., Coll. at Cortland, supra, at 1432], and citing Winnick v Manning, 460 F2d 545, the Appellate Division noted that "[t]he right to cross[-]examine witnesses generally has not been considered an essential requirement of due process in school disciplinary proceedings."[2]

5. Credibility: The court indicated that it found it troubling that the hearing panel "duty bound to determine who to believe when faced with competing versions of events," resolved this fundamental credibility issue "without having had the opportunity to directly gauge ... [a witnesses]  credibility" and citing Doe v University of Cincinnati, 872 F3d at 404, the Appellate Division opined that when hearsay testimony is involved "there is no doubt that allowing [the accused] to confront and question [the accusing party in] the truth-seeking process and reduced the likelihood of an erroneous deprivation."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00205.htm

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[1] Another issue, not raised directly in this case, concerns the need of an employee charged with incompetency or  misconduct submitting an answer to §75 disciplinary charges.  

Should an accused fail to file an answer to the charges and specifications may the appointing authority impose the proposed penalty without holding a disciplinary hearing? In the opinion of the author of this summary, Harvey Randall, no. Although Section 75 requires the appointing officer to allow the accused employee at least eight days to file his or her answer to disciplinary charges in writing, this simply provides that, but does not mandate, the employee have at least eight days in which to prepare and submit an answer to the charges. As Section 75 is silent as to when the accused individual is required to file his or her answer, this suggests that the individual may remain mute -- i.e., decline to file an answer to the charges -- without jeopardizing any of his or her Section 75 rights to administrative due process. In other words, the failure of an employee to file a pre-hearing written answer to the disciplinary charges, appear at the disciplinary hearing or his or her even refusing to defend himself or herself against the charges at the hearing, does not excuse the employer of its duty to prove the employee’s incompetence or misconduct, and where the employee fails to appear at the hearing, by holding the hearing in absentia, before making a determination as to guilt and then, if the accused is found guilty, imposing an appropriate disciplinary sanction. 

[2] The opportunity to cross-examine an adverse witness is guaranteed by statute in situations where a public agency is obliged to hold an adjudicatory hearing (see State Administrative Procedure Act §§ 102 [3]; 306 [3]). A hearing is not required under the minimum requirements set by Education Law §6444(5)(b) (see Matter of Doe v Skidmore Coll., 152 AD3d at 934), rendering the protections of the State Administrative Procedure Act inapplicable (see Matter of Gruen v Chase, 215 AD2d at 481; Matter of Mary M. v Clark, 100 AD2d at 43).

Informal Opinions of the Attorney General

Informal Opinions of the Attorney General

Informal Opinion No. 2017-1  [December 13, 2017]   

A change in the use of municipal parking spaces on parkland must be authorized by special legislation.

Informal Opinion No. 2017-2 citing Town Law §§176(11), 176-a, 176-a(1), 189-a(2)(d); Executive Law §23 [December 13, 2017]    

The positions of assistant fire chief of a joint fire district and county director of emergency services are compatible. [December 13, 2017]

Police officer terminated following being found guilty of downloading and possessing child pornography

Police officer terminated following being found guilty of  downloading and possessing child pornography

2017 NY Slip Op 09243, Appellate Division, First Department

A New York City police officer [Petitioner] was found guilty of accessing, downloading, and possessing child pornography. The penalty imposed: termination from his employment.  

The Appellate Division unanimously confirmed the determination that Petitioner was guilty of downloading and possessing child pornography as it was supported by substantial evidence and the Hearing Officer was entitled to consider Petitioner's demeanor during his testimony at the disciplinary hearing into account when assessing Petitioner's credibility

The court also noted that Petitioner's behavior during the execution of the search warrant at his home provided circumstantial evidence of his guilt as to both charges.

As to the possibility of considering mitigating circumstances with respect to the penalty imposed, dismissal from the position, the Appellate Division opined that notwithstanding Petitioner's tenure with the police department since 1999, the absence of any formal disciplinary record, and the fact that he had been awarded several medals, terminating Petitioner for downloading and possessing child pornography did not shock the court's sense of fairness.

Other cases of involving alleged involvement with pornography that resulted in disciplinary action being taken against the employee include:

Ghita v Department of Education of the City of New York, 2008 NY Slip Op 30706(U);
Phelps-Clifton Springs CSD v Nicot, Supreme Court, Ontario County, Index #103465;
Davis v DMNA, 291 A.D.2d 778, Schnaars v Copiague UFSD, 275 A.D.2d 462; and
Shurgin v Ambach, 56 NY2d 700

The decision in chief is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09243.htm

Concluding that "reasonable minds might disagree" with the arbitrator's determination insufficient to justify a court's vacating or modifying an arbitration award

Concluding that "reasonable minds might disagree" with the arbitrator's determination insufficient to justify a court's vacating or modifying an arbitration award

Bolt v New York City Dept. of Educ., [No. 51 SSM 34]; Matter of Beatty v City of New York, et al., [No. 52 SSM 35 ]; and Matter of Williams v City of New York, et al.,  2018 NY Slip Op 00090, Court of Appeals [No. 53 SSM 36]

In Matter of Bolt v New York City Dept. of Education and Matter of Beatty v City of New York, and Matter of Williams v City of New York, the Court of Appeals reversed the Appellate Division's reversal of the Supreme Court's dismissal of the challenges to the penalty imposed in the course of disciplinary arbitration and reinstated the Supreme Court's determination dismissing of each of the three petitions challenging the arbitration award.

Citing City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917, the Court of Appeals explained that the fact that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty," and in so doing found that the Appellate Division "exceeded its authority by reweighing the evidence and substituting its judgment for that of the hearing officer."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00090.htm

Municipal and school district audits released by State Comptroller DiNapoli on January 9, 2018

Municipal and school district audits released by State Comptroller DiNapoli on January 9, 2018

Click on text highlighted in color to access the full report

 

Aurora-Colden Fire District No. 6 – Financial Activity (Erie County)
Officials generally provide adequate oversight to ensure financial activity is properly recorded and district money is safeguarded. The district, however, did not solicit competition, or retain evidence of soliciting competition, for 97 purchases totaling $171,013 that were subject to its purchasing policy.

Columbia-Greene Community College – Information Technology (2017M-213)
The board has not adopted comprehensive written procedures for managing system access. The college did not adopt a breach notification policy and has never tested its disaster recovery plan; therefore, information may not be adequately safeguarded.

Village of Croton-on-Hudson – Payroll (Westchester County)
Auditors found that timesheets did not have employees’ signatures or show actual hours worked. Payroll records for the Department of Public Works revealed five employees were overpaid a total of $902. In addition, the village under-budgeted for overtime in the 2016-17 fiscal year by $284,608 or 43 percent.

Town of Dannemora – Part-Town Activities (Clinton County)
The town’s accounting records did not include a part-town (PT) general fund. General fund PT revenues and expenditures were not properly allocated. As a result, the town unnecessarily taxed town residents residing within the village which subsequently lowered tax rates for town residents living outside of the village.

East Islip Public Library – Cash Receipts (Suffolk County)
Cash was not always properly collected or deposited in a timely manner. Library staff did not issue adequate receipts for all collections and did not properly account for attraction tickets purchased in bulk and sold at a discount to cardholders. The library’s account clerk performed incompatible financial duties.

County of Franklin Solid Waste Management Authority – Solid Waste and Recycling Charges and Host Community Fees (2016M-418)
Officials had not established adequate procedures over solid waste and recycling charges to ensure customers were accurately charged and the corresponding amounts collected were deposited in a timely manner. Auditors found customers were charged varying rates for disposal of the same type of waste.

Town of Greece – Information Technology (Monroe County)
Town officials did not adopt a comprehensive online banking policy or adequately segregate online banking duties. In addition, the board did not adopt a comprehensive disaster recovery plan. As a result, the town has an increased risk that its IT data and components may be lost or misused and that the town will be unable to resume critical operations if a system failure occurs.

Johnsonville Fire District – Claims Processing (Rensselaer County)
Except for minor exceptions which we discussed with district officials, all of the claims reviewed by auditors were supported by sufficient documentation and for appropriate purposes.

Town of Nanticoke – Financial Condition Management (Broome County)
The town board did not effectively manage fund balance. From 2014 through 2016, budgeted appropriations exceeded expenditures, resulting in the accumulation of excess fund balance in the general fund. As of Dec.31, 2016, the fund balance in the general fund had increased 75 percent, to over $482,000, from approximately $275,000 in 2014. The board has not developed a fund balance policy or comprehensive multiyear financial and capital plans specifying the town’s objectives and goals for using the accumulated funds.

Town of Marbletown – Financial and Capital Planning (Ulster County)
The board does not have a comprehensive multiyear financial and capital plan or reserve policy to address the town’s operational and capital needs, including the replacement of vehicles and equipment, infrastructure or the aging highway garage. The board also has not adopted an adequate fund balance policy, which resulted in the town accumulating excessive fund balance in the general fund.

Municipal Parking Structures (2017MS-3)
The local governments reviewed have varying processes in place to inspect and monitor their parking structures. Although available reports indicate that the structures do not have any urgent repair needs, most units could improve their internal controls over parking structures and elevators. For example, the lack of periodic inspections has resulted in three Buffalo, two White Plains and possibly two Ithaca parking structures not having inspections conducted by structural engineers within the last 10 years.

City of Sherrill – Payroll and Community Activity Center Cash Receipts (Oneida County)
City officials accurately paid employees’ salaries and wages. However, officials need to improve controls over payroll preparation and processing. There is no independent certification of payroll prior to the distribution of payroll checks. In addition, city officials have not formalized policies and procedures over the community activity center’s cash collections.

Walden Fire District #2 – Purchasing (Erie County)
District officials did not obtain quotes in accordance with the district’s procurement policy during the audit period for 27 purchases totaling $77,044.

West Niles Fire Company – Financial Activities (Cayuga County)
The board has not established written policies and procedures for cash receipts, cash disbursements and fundraising activities or adopted a code of ethics to guide officers and members regarding expected standards of conduct, as required. Additionally, the bylaws provide limited guidance on the board’s responsibilities and the company treasurer’s duties.

Aloma D. Johnson Charter School – Leave Accruals (Erie County)
School officials did not maintain accurate, complete and supported leave accrual and use records. Auditors compared the 2015-16 leave balances for all 62 employees to the 2016-17 beginning leave balances recorded in the employee leave records and found that 12 of these employees’ leave carryover amounts were overstated by 47 days.

Center Moriches Union Free School District – Medicaid Reimbursements (Suffolk County)
The district did not claim $117,670 in costs for individual education plan-related services provided to Medicaid-eligible students because it did not obtain prescriptions, parental consent was not obtained or service providers did not meet certain qualifications for reimbursement or did not provide the proper documentation for claiming reimbursement.

Colton-Pierrepont Central School District – Financial Duties (St. Lawrence County)
Salaries and wages were accurately calculated and paid. However, the district clerk’s duties are not adequately segregated because she processes all non-payroll and payroll disbursements with limited oversight.

Kendall Central School District – Capital Project (Orleans County)
Officials did not present a district-wide capital improvement project to the public in a transparent manner. Because the project’s actual cost ended up being below the maximum amount authorized by the voters, officials had an opportunity to spend significantly less than anticipated. However, district officials decided to complete additional work and expand the project scope without informing the voters.

Madison-Oneida Board of Cooperative Educational Services (2017M-239)
Employee salaries and wages were accurately paid. However, payroll access rights were not adequately restricted to employees based on job duties. In addition, duties related to the payroll certification process were not properly segregated.

South Country Central School District – Information Technology Inventory (Suffolk County)
The district does not have a complete and accurate inventory of information technology (IT) equipment. District officials have not adequately accounted for IT assets and they have no assurance that the assets have been adequately protected from loss, theft or misuse. Further, in the event of a disaster, district officials would be unable to provide its insurance company with an accurate list of IT assets to replace.

Ticonderoga Central School District – Transportation State Aid and Extra-Classroom Activity Funds (Essex County)
The district did not apply for all transportation state aid for new bus acquisitions. As a result, the district was in danger of potentially losing $194,852 in state aid. In addition, club collections were not supported by adequate documentation and were not always deposited in the amounts received.

Wellsville Central School District – Financial Management (Allegany County)
The district’s unrestricted fund balance has exceeded the statutory limit for the past three fiscal years by amounts ranging from $1.5 million to nearly $3 million. District officials have also allowed the unemployment reserve balance to accumulate to an excessive level and have not used funds from the retirement contribution reserve as budgeted.

Westmoreland Central School District – State Transportation Aid (Oneida County)
District officials did not apply for state transportation aid within one year of purchase for 18 buses purchased during our audit period. During the audit, the district business manager prepared and submitted state aid forms to the New York State Department of Education for the 18 buses, and the district should receive approximately $1.3 million in transportation aid for these buses through 2021-22.

Making an appointment to a position to take effect on a specified date in the future

Making an appointment to a position to take effect on a specified date in the future
Farrell v City of Kingston, 2017 NY Slip Op 09214, Appellate Division, Third Department

In 2015, Shayne Gallo, the City of Kingston's then-Mayor, appointed Robert Farrell to the position of sergeant, effective January 10, 2016, and Kirk Strand to the position of lieutenant effective January 3, 2016.

On January 1, 2016, Steve Noble was sworn in as the City's new mayor and on January 2, 2016, the City's Police Citizens Advisory Board [PCAB] met and voted to rescind the Strand and Farrell appointments as invalid.

On January 9, 2016, Noble appointed three other officers, Richard Negron, Andrew Zell and Brian Lowe, as sergeants but did not make an appointment to the lieutenant position.*

In April 2016, Strand and Farrell [Petitioners] commenced this combined CPLR Article 78 proceeding and plenary action, contending, among other things, that the PCAB's rescission of their respective appointments should be vacated. Petitioners alleged that the Gallo  appointments should be deemed valid on the ground that Mayor was the appointing authority pursuant to the City of Kingston Charter and thus the PCAB  action was, in effect, ultra virus, without lawful authority, to rescind those appointments.**

Supreme Court granted the City's motion in its entirety, dismissing Petitioners' first three causes of action for failure to join certain necessary parties and dismissing Petitioners' employment discrimination cause of action for failure to file a notice of claim. Petitioners appealed.

Citing Morgan v de Blasio, 29 NY3d 559, the Appellate Division held that Supreme Court ruling that Negron, Zell, Lowe, Robertson and Burkert were necessary parties to the subject proceeding, explaining that  "any individual or entity who might be inequitably affected by a judgment in a proceeding, or who ought to be a party if complete relief is to be accorded between those who are parties to the proceeding, shall be named as a necessary party." The Appellate Division pointed out that were Farrell to obtain an annulment of the rescission of his appointment as sergeant and be reinstated to that position, either Negron, Zell or Lowe stand to be displaced from their promotion to sergeant.

By the same token, the Appellate Division opined that should Strand prevail with respect to his appointment to lieutenant and be reinstated to that position, Burkert and Roberston, as two of the top three candidates listed for promotion to the position of lieutenant "would lose their right to consideration for that post" and thus they are necessary parties with respect to an appointment to the position of lieutenant.

The Appellate Division also ruled that because Negron, Zell, Lowe, Robertson and Burkert are necessary parties and are subject to Supreme Court's jurisdiction insofar as they were employees of the City of Kingston Police Department at the time of commencement of this proceeding, the court should have ordered them joined and remitted the matter to Supreme Court to order Negron, Zell, Lowe, Robertson and Burkert to be joined as necessary parties.

It should be noted that [1] Robert Farrell was appointed to the position of sergeant effective January 10, 2016, and [2] Kirk Strand was appointed to the position of lieutenant effective January 3, 2016 and [3] that these Petitioners contend that City's Police Citizens Advisory Board's [PCAB] vote to rescind the Strand and Farrell appointments was invalid.

On February 9, 2016, Noble appointed three other officers, Richard Negron, Andrew Zell and Brian Lowe, as sergeants. Assuming that there were only three vacancies of Sergeant on February 9 and appointments to these vacancies were made prior to the effective date of Farrell's appointment, it could be argued that Farrell's appointment effective January 10 was rescinded by Noble's actions appointing  Negron, Zell and Lowe sergeants effective February 9.

In Remus v Tonawanda City School Dist., 277 A.D.2d 905, affirmed, 96 N.Y.2d 271, the court held that a Board of Education resolution that grants tenure to a teacher effective on a specified future date does not entitled the teacher to the benefits of tenure until the effective date specified in the resolution. See, also, Shaffer v Schenectady City School Dist., 96 N.Y.2d 271, to the same effect.

Strand's appointment to the position of lieutenant effective January 3, 2016, however,  raises a different issue.

If, as he contends, the City's Police Citizens Advisory Board's  [PCAB] vote to rescind his appointment was invalid, and Strand was otherwise eligible for permanent appointment to the position of lieutenant from the appropriate eligible list for Lieutenant, his appointment to the vacancy matured on January 3 as it appears that no valid substitute appointment to the position was made prior to January 3 by the appointing authority, nor was the appointment cancelled or withdrawn by the new mayor, Steve Noble.

Assuming, but not deciding, that such is the case, Strand was permanently appointed to the position of lieutenant subject to his satisfactory completion of any required probationary period effective January 3. If, on the other hand, Strand's appointment was initially made as a contingent permanent appointment, as a provisional appointment or as a temporary appointment by the former mayor, Shayne Gallo, Strand's appointment and  continuation in the lieutenant position would be controlled by the relevant provision or provisions of the Civil Service Law.

* Strand and two other officers, Brian Robertson and Anthony Burkert, were the only three officers on a certification of eligibles for appointment to the lieutenant position. However, although the appears to be a mandatory eligible list for appointment to the vacant lieutenant position, the appointing authority is not mandated to fill such a vacancy but only required to make an appointment to the vacancy from the eligible list if the position is to be filled absent other lawful appointment opportunities  for the appointing authority to appoint an eligible individual to the vacancy.

** Petitioners also alleged that they had been subjected unlawful discrimination within the meaning of Labor Law §201-d "for politically supporting Gallo."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_09214.htm