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][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][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).

Alcoholism as a defense in a disciplinary action

Alcoholism as a defense in a disciplinary action

OATH Index No. 0005/18

A New York City correction officer admitted that he brought alcohol onto his post, drank it through his tour of duty and falsely reported in the Department’s logbook that he conducted his required tours of the inmates. The correction officer, however, argued that he should not be fired because he was an alcoholic and that this condition caused his misconduct.

OATH Administrative Law Judge Susan J. Pogoda found that the correction officer did not show that his misconduct was caused by a disability and recommended termination of correction officer’s employment. Judge Pogoda's recommendation was adopted by the appointing authority and the correction officer was dismissed from his position.

As to alcoholism as a defense in a disciplinary action, in Murolo v Safir, Appellate Division, 246 A.D.2d 653, leave to appeal denied, 91 N.Y.2d 813, David Murolo challenged his disciplinary dismissal by contending his misconduct was caused by an alcohol abuse problem that he had since overcome. He claimed that his firing violated the Human Rights Law, citing In McEniry v Landi, 84 NY2d 554.

In McEniry the Court of Appeals had held that alcoholism qualifies as a disability within the meaning of the State’s Human Rights Law [see §292.21, Executive Law].

Although a Supreme Court justice accepted Murolo’s argument and remanded the case to the Commissioner for the imposition of a lesser penalty, the Appellate Division disagreed and reinstated the Commissioner’s original determination terminating Murolo from his position. The Appellate Division distinguishing the situation in McEniry from Murolo’s. 

The court explained that in Murolo the disciplinary hearing officer found that Murolo called in a false alarm and while his fellow firefighters were responding to the false alarm, Murolo took $223 of “communal money” from the station house. The hearing officer determined that Murolo's status as a recovering alcoholic did not shield him from discipline for misconduct and recommended his termination. The Commissioner adopted the hearing officer’s recommendation.

In contrast, in McEniry the issue was whether alcoholism prevented the individual from satisfactorily performing the duties of his or her position.

In McEniry the Court of Appeals held that if an individual establishes a prima facie case that his or her discharged was based on his or her alcoholism, the burden shifts to the employer to show either that (1) the employee was not disabled by alcoholism, (2) there was an alcoholism disability but no reasonable accommodation was possible or (3) there an alcoholism disability but termination was for other reasons than behavior stemming from alcoholism.

The OATH Index No. 0005/18 decision is posted on the Internet as:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-2417.pdf

New York City police officer who filed fabricated complaints with the New York City Civilian Complaint Review Board dismissed from the department

New York City police officer who filed fabricated complaints with the New York City Civilian Complaint Review Board dismissed from the department

Artiles v Kelly, 2018 NY Slip Op 01435, Appellate Division, First Department

Wilkyn Artileswas terminated from his position as a New York City police officer after he was found guilty of impersonating four individuals to file false complaints with the New York City Civilian Complaint Review Board [CCRB], and making a false report of police corruption to the police department's Internal Affairs Bureau [IAB].

The Appellate Division found that substantial evidence supported the administrative disciplinary determination dismissing Artiles, which included he following findings:

1. The fabricated complaints filed with the CCRB were sent from an IP address corresponding to Artils' home, at a time when he was off-duty;

2. The IAB's report indicated that the claims Artiles had filed were unsubstantiated as the alleged victim denied the allegations.

The hearing officer's determination was also in accord with due process, having been made after a seven-day hearing, at which [Artiles] was represented by counsel and had the opportunity to present evidence and cross-examine witnesses, and at which 17 witnesses testified and 28 exhibits were introduced.

In the course of the disciplinary proceeding Artils complained that "one box of evidence was lost and could not be produced" and that a proposed witness, who had moved to another state, refused to testify despite being served with a subpoena. The Appellate Division, however, determined that the missing evidence related to a prior IAB investigation that was not the basis for the decision terminating Artils and "was relevant only insofar as it gave [Artils] a motive to make the false complaints." In addition, said the court, Artils' motive was corroborated by his own testimony, and by the testimony of several other police officers. The Appellate Division concluded that Artils' rights to due process had not been violated by the omission of this evidence.

Ruling that the penalty of dismissal is not disproportionate to Artils' "serious misconduct so as to shock the conscience," the court observed that "[i]n matters of police discipline, [courts] must accord great leeway to the Commissioner's determinations concerning appropriate punishment, because [the Commissioner] ... is accountable to the public for the integrity of the Department."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01435.htm

Paid Leave available to public officers and employees undertaking screening for cancer

Paid Leave available to public officers and employees undertaking screening for cancer 

Statutory authority: New York State Civil Service Law §159-b

Effective March 18, 2018, §159-b of the New York State Civil Service Law, which provides public officers and employees of the State and its political subdivisions with excused leave to undertake a screening for cancer,* has been amended to read as follows:

§159-b of the New York State Civil Service Law, which provides public officers and employees of the State and its political subdivisions with excused leave to undertake a screening for cancer,* has been amended to read as follows:

"1. Every public officer,** employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system shall be entitled to absent himself or herself and shall be deemed to have a paid leave of absence from his or her duties or service as such public officer or employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district, or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system for a sufficient period of time, not to exceed four hours on an annual basis, to undertake a screening for cancer.

"2. The entire period of the leave of absence granted pursuant to this section shall be excused leave and shall not be charged against any other leave such public officer, employee of this state, employee of any county, employee of any community college, employee of any public authority, employee of any public benefit corporation, employee of any board of cooperative educational services (BOCES), employee of any vocational education and extension board, or a school district enumerated in section one of chapter five hundred sixty-six of the laws of nineteen hundred sixty-seven, employee of any municipality, employee of any school district or any employee of a participating employer in the New York state and local employees' retirement system or any employee of a participating employer in the New York state teachers' retirement system is otherwise entitled to."

* N.B. §159-c, Excused leave to undertake a screening for prostate cancer, is repealed effective March 18, 2018

** Although not every public employee is a public officer, every public officer is a public employee.

Union official removed from elected and appointed positions after being found guilty of "disloyalty to the organization" by a disciplinary hearing officer

Union official removed from elected and appointed positions after being found guilty of "disloyalty to the organization" by a disciplinary hearing officer

Abbitt v Carrube, 2018 NY Slip Op 01394, Appellate Division, First Department

Supreme Court denied Serena Abbit'spetition to annul the Subway Surface Supervisors Association [SSSA] decision sustaining the recommendation of SSSA's trial committee that Abbitt be removed from her elected position as Section Vice President. The court then dismissed the proceeding and granted SSSA's motion to dismiss Abbitt's libel claims.

The Appellate Division affirmed the Supreme Court's decision, explaining that SSSA's removal of Abbitt from her elected position was "consistent with its constitution and is rational and not arbitrary and capricious.

The court said that Abbitt persistent using her personal business cards, her personal email address, and her personal cell phone number notwithstanding directions to use those provided by SSSA, constituted a disregard of SSSA's direction and disloyalty to the organization.

The Appellate Division also noted the Abbitt [1] was provided with the requisite notice of the charges and an opportunity to be heard; [2] fully participated in the hearing, at which she was represented by counsel; and [3] at which hearing the charges were clarified. Abbitt, said the court, failed to identify anything in SSSA's constitution that supports her contention that she is entitled to the same due process protections with respect to her appointed position.

As to Abbitt's claim of libel,  the Appellate Division held the such claim against SSSA was correctly dismissed "since absolute immunity from liability for libel attaches to [a] the trial committee's charges initiating the quasi-judicial proceedings against her and [b] to the hearing officer's decision.

As to Abbitt's libel claim against SSSA's president, Michael Carrube, this claim was correctly dismissed as the alleged libelous statement that Abbitt "violated the chain of command," was at least substantially true and Carrube's description of Abbitt's behavior as "unethical" and "detrimental to the members [of SSSA]" was an expression of pure opinion and "supported by a factual predicate."

The Appellate Division then ruled that libel claim against the New York City Transit Authority [NYCTA] Senior Vice President of Labor Relations Johnson based on statements in an email to Carrube about the nature of the relationship between NYCTA's Office of Labor Relations and SSSA and the need for "mutual cooperation" and "respect" between them in which the Senior Vice President use of words such as "inappropriate," "disrespect," and "intimidation" to characterize Abbitt's conduct was also an expression  opinion regarding her performance and its effect on SSSA's relationship with NYCTA, and, considering the context of the entire email, including its tone and purpose, is not actionable.

Finally, the Appellate Division held that the only factual statement in Senior Vice President's  email challenged by Abbitt was made to someone "with a common interest in the subject matter" and was therefore protected by a qualified privilege and Abbitt's allegation of malice on the Senior Vice President's part "is conclusory and therefore insufficient to overcome the privilege."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01394.htm