Challenging a hearing officer's determination following a §3020-a disciplinary hearing

Challenging a hearing officer's determination following a §3020-a disciplinary hearing

Appeal of Douglas S. White, Decisions of the Commissioner of Education, Decision No. 17,521

Douglas S. White submitted an Education Law §3020-a hearing officer's decision finding him guilty of 6 of 7 specifications set out in two Charges filed against him by the Roosevelt Union Free School District Board of Education [Roosevelt] and the penalty imposed by the Arbitrator, suspension without pay for 42 school days, to the Appellate Division for judicial review.

The Appellate Division vacated portions of the hearing officer’s findings and remanded the matter to the hearing officer for a review and determination of the penalty to be imposed on White in consideration to the court's decision in the matter.*

The hearing officer, in consideration of the Appellate Division's decision, reduced the penalty to be imposed on White. White thereupon appealed the reduced penalty to the Commissioner of Education, contending, among other things, that the hearing officer erred by imposing a penalty upon on remand. 

Roosevelt challenged White's appeal, contending that it must be dismissed because [1] White failed to make proper service of his appeal; [2] the Commissioner lacked jurisdiction to consider White's appeal; and [3] White's appeal had been untimely filed.

Citing 8 NYCRR 275.8(a), the Commissioner said that the appeal must be dismissed for improper service, explaining that the Commissioner’s regulations requires that [1] the petition be personally served upon each named respondent and [2] if a school district is named as a respondent, service upon the school district is to be made personally by "delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service."

Turning to Roosevelt's claim that the Commissioner "lacked jurisdiction to review the decision of a hearing officer in a §3020-a proceeding," the Commissioner noted that Education Law §3020-a was amended by Chapter 691 of the Laws of 1994 to divest the Commissioner of jurisdiction to review determinations of hearing officers, both final and non-final.

Addressing Roosevelt's argument claiming "untimeliness," the Commissioner said that "[w]eighing the parties’ submissions," she found that Roosevelt had met its burden of proving its affirmative defense that service was improper and that White failed to rebut the evidence provided by Roosevelt with respect to its claim of the lack of proper service.

Finally, the Commissioner noted that the only relief sought by White in this appeal is that "the charges be overturned and expunged from his record and that he be awarded reimbursement for his expenses resulting from the charges, including attorneys’ fees and lost wages." However, explained the Commissioner, "...  even if [White's] appeal had been properly served, it would be dismissed as [the Commissioner of Education has] no jurisdiction over [White's] claims and lack the authority to grant the relief sought."

* See White v Roosevelt Union Free Sch. Dist. Bd. of Educ., 147 AD3d 1071, posted on the Internet at http://www.nycourts.gov/reporter/3dseries/2017/2017_01371.htm

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

http://www.counsel.nysed.gov/Decisions/volume58/d17521

Reinstatement to a position in the classified service following appointment to a position in the unclassified service with the State University of New York

Reinstatement of an individual to a position in the classified service following his or her appointment to a position in the unclassified service with the State University of New York

Question: May an individual with permanent status who resigned from a position in the competitive class of the Classified Service to accept a position with the State University of New York in the Unclassified Service* be reinstated to a position in the competitive class following his or her separation from his or her State University of New York position in the Unclassified Service?

Response: In NYPPL's editor's opinion, the rules applicable in such a situation** are as follows:

1. An employee who resigns from his or her permanent appointment then serving in a position in the competitive class to accept a position with the State University of New York in the Unclassified Service is eligible for reinstatement:

a. With his or her former agency in the same position, or in a similar or lower grade position, except that such a reinstatement cannot be made in the face of [i] a special military list established pursuant to §243.11 of the Military Law;*** or [ii] a preferred list.

b. A different department or agency in the same title and grade, or in a similar or lower grade position, except that such a reinstatement cannot be made in the face of [i] a special military list; [ii] a preferred list; [iii] a "department or agency" promotion list; or [iv] an existing promotion field in that department or agency.

2. For the purposes of reinstatement and similar personnel rights and considerations, service in the classified service is not deemed to be a "break in service" by reason of an intervening unclassified service employment.

* See also, §355-a.10 of the Education Law, "Salary, status, and accumulated leave credits of employees whose employment changes as between the classified and the unclassified service," for additional provisions of law applicable to incumbents of positions in the State University upon the jurisdictional reclassification of his or her position. 

**N.B.  Note 4 NYCRR 5.4, RULES FOR THE CLASSIFIED SERVICE, provides as follows:

A permanent employee who has resigned from his position may be reinstated, without examination, within one year from the date of such resignation in the position from which he resigned, if then vacant, or in any vacant position to which he was eligible for transfer or reassignment. In computing the one-year period within which a person may be reinstated after resignation, the day the resignation takes effect, any time spent in active service in the military or naval forces of the United States or of the State of New York, and any time served in another position in the civil service of the same governmental jurisdiction shall not be counted. In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his former position more than one year after resignation. For the purpose of this section, where an employee on leave of absence resigns, such resignation shall be deemed effective as of the date of the commencement of such leave.

*** Persons not covered by the provisions of §243.11 may be entitled to have their names placed on a "military reemployment list" pursuant to §243.12 of the Military Law.        

Election Workers: Payroll Reporting and Withholding

Election Workers: Payroll Reporting and Withholding 

Source: Internal Revenue Service

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Each election year, state and local government entities hire temporary workers to conduct primary and general elections. Election workers are subject to unique reporting and withholding requirements and may be coveredby a Section 218 Agreement.

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