The authority of an administrative agency to promulgate rules and regulations

The State University of New York Board of Trustees' Charter School Committee [SUNY/CSC], asserting that an independent licensure process was necessary to alleviate a teacher shortage at certain Charter School,  promulgated Regulations* that purported to establish an independent licensure process from that established by State Education Department and State Board of Regents [SED].

SED subsequently initiated a CPLR Article 78 action [Petitioner Proceeding 1] seeking to, among other things, a court order annulling the SUNY/CSC's regulations, contending that the Committee lacked such authority under Education Law §355(2-a), conflicted with Education Law article 56 [the Charter Schools Act] and other provisions of the Education Law, violated the separation of powers doctrine and were not promulgated in accordance with the State Administrative Procedure Act [SAPA].

In addition, a second Article 78 action was commenced by the New York State United Teachers [NYSUT], the United Federation of Teachers, Local 2 [UFT], the National Association for the Advancement of Colored People, New York State Conference [NAACP] and two teachers and a parent [Petitioner Proceeding 2].

Supreme Court granted the amended petitions/complaints, vacated the Regulations and enjoined their implementation. The court found, among other things, that the Education Department and the Commissioner have standing to bring the Article 78 action, that Education Law §355(2-a) does not authorize SUNY/CSC to promulgate regulations that alter minimum teacher certification requirements, and that the regulations were not promulgated in accordance with SAPA. SUNY/CSC [Respondents] appealed the Supreme Court's rulings.

Addressing the standing of SED to initiate the action in Proceeding 1, the Appellate Division, citing Matter of Graziano v County of Albany, 3 NY3d 475, observed that governmental entities have the capacity to sue only when it is based upon a "concrete statutory predicate ... expressly granted in enabling legislation or it may be inferred from review of the entity's statutory functions or responsibilities." The court then opined that "[p]ursuant to the Education Law, the Commissioner is required to "enforce all general and special laws relating to the educational system of the state and execute all educational policies determined upon by the [B]oard of [R]egents" (Education Law § 305 [1])" and "Education Law §308 provides that the Commissioner has the power and the duty 'to cause to be instituted such proceedings or processes as may be necessary to properly enforce and give effect to any provision in [the Education Law] or in any other general or special law pertaining to the school system of the state or any part thereof or to any school district or city.'"

Thus, the court concluded that the Commissioner, as the chief executive officer of the Education Department and the Board of Regents, has both express and implied capacity to bring Petitioner Proceeding No. 1.

In addition, however, to establish standing, a petitioner must show that it "ha[s] something truly at stake in a genuine controversy" by establishing "both an injury-in-fact and that the asserted injury is within the zone of interests sought to be protected by the statute alleged to have been violated."  Petitioner  Proceeding 1, asserting that [1] the Commissioner has exclusive statutory authority to promulgate regulations governing the certification of public school teachers, to certify qualified individuals to teach in public schools, and to register teacher preparation programs in this state, [2] the Regulations promulgated by SUNY/CSC conflict with Education Law §§2854(3)(a-1) and 3602-ee, which require teachers employed in charter schools and charter school pre-kindergarten programs to be certified according to the same requirements that apply to other public school teachers, with certain limited exceptions, and [3] the Commissioner averred by affidavit that the Regulations promulgated by SUNY/CSC "usurp the Commissioner's authority, contravene the purposes and policies of the Charter Schools Act and Education Law §3004 and will injure Petitioners in proceeding No. 1 and the students whose education they are charged with protecting by permitting unqualified persons to teach in SUNY-authorized charter schools.

The Appellate Division held that these allegations were sufficient to establish that the claimed injuries fall within the zone of interests sought to be protected by the Education Law and that the Commissioner has suffered "direct harm," consisting of "injury that is . . . different from that of the public at large."

In contrast, with respect to the Petitioners Proceeding 2, the Appellate Division ruled that none of the employee organizations, the NAACP, the teachers or the parents alleged facts that would support a claim for standing with respect to Petitioner Proceeding 2 or advanced only "tenuous and ephemeral" claims insufficient to constitute injury in fact. In the words of the court, "on this record, none of these [parties] show[ed] that at least one of [their] members would have standing to sue," and we need not examine the other elements of organizational standing." Accordingly, said the court, "the amended petition/complaint in Proceeding No. 2 should have been dismissed."

Turning to the merits of Respondents' arguments in Proceeding No. 1, the Appellate Division explained that it is a basic principle of administrative law that an administrative agency has only "those powers expressly conferred by its authorizing statute, as well as those required by necessary implication." Noting that the Education Law does not define the word "operation" in the sense relied upon by Respondents, the court concluded that "[i]n the absence of a statutory definition, we construe words of ordinary import with their usual and commonly understood meaning" and in context, is " performance of a practical work or of something involving the practical application of principles or processes"**. This definition, opined the Appellate Division, with its emphasis on practical function, does not support Respondents' interpretation based on its argument that the operation or "practical work" of a charter school clearly includes the hiring and supervision of teachers "as such tasks are not the same as establishing requirements for the certification of teachers, which other public schools do not perform, and which involves policy determinations beyond a school's ordinary management and functioning."

Commenting that the Charter Schools Act consistently uses the word "operation" to refer to the practical administration, management and supervision of individual charter schools, the Appellate Division concluded that the inclusion of the word "operation" in Education Law §355(2-a) does not authorize the Committee to promulgate regulations pertaining to teacher licensure and certification.

In addition, the court found that the Regulations were in conflict with provisions of the Education Law that authorize the Commissioner to prescribe regulations governing the certification of teachers and that require most teachers in charter schools and pre-kindergartens to be certified in the same manner as other public school teachers.

Considering the guidelines first established in Boreali v Axelrod, 71 NY2d 1, the Appellate Division said it agreed with Supreme Court that the regulations "constituted a product of improper legislative policymaking by an administrative agency" and the Respondents in Proceeding 1 had violated SAPA by making "substantial revision[s]" in the proposed regulations before their adoption without a notice of revised rulemaking and an opportunity for additional public comment.

* 8 NYCRR 700

** (Merriam-Webster Online Dictionary, [https://www.merriam-webster.com/dictionary/operation])

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07458.htm

Improving Accessibility and Availability of Government Services

Government Technology recently analyzed state portals to determine the "digital maturity" of their processes for professional licensing, driver’s licensing, Medicaid applications, state disability benefits, and their child welfare system. The goal was to assess how accessible these services are and to what degree they have been digitized.

On Nov. 12 at 11am PT/2pm ET, Government Technology's panel of analysts and experts will discuss these findings, focusing on the state of digital maturity when it comes to key government processes and what agencies can do to improve the experience for citizens and staff.

Topics that will be considered include:

What states are leading the way when it comes to digital transactions and interactions – and what they are doing to stand out

The technologies and solutions available to make transactions more digital and mobile-enabled

How to get started on the digital maturity journey and what areas bring the biggest return on investment

You can register at no cost here!

If can not participate in this webinar on November 12, Government Technology suggests you  Register anyway to receive updates for access to the on-demand recording.

An administrative tribunal's consideration of all relevant evidence is critical to a court's finding that its decision was based on substantial evidence

Although the Appellate Division opined that it "is unquestionably within the province of the Comptroller to evaluate conflicting medical opinions and credit one expert over another," the court explained that the medical opinion relied on must be based upon, among other things, a review of all the relevant medical records.

Finding that in this instance there is not indications that the Retirement System's medical expert reviewed certain medical evidence submitted to the System, the Appellate Division said it agreed with the claimant for accident disability retirement benefits [Claimant] that there is no basis upon which to conclude that the System's medical expert's opinion would have remained unchanged in light of the certain findings that objectively supported the Claimant's medical expert's diagnosis.

As the Comptroller relied upon an expert opinion "that was not founded upon a review of all the relevant medical records," the Appellate Division concluded that substantial evidence does not support the Comptroller's determination that Claimant was not permanently disabled and annulled the Comptroller's determination and remitted the matter to the Comptroller "for further proceedings not inconsistent with this Court's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07473.htm

Award recipients named at the 5th Annual Local Government Innovation Conference

On October 22, 2019 New York State Secretary of State Rossana Rosado announced award recipients at the Department of State’s fifth annual Local Government Innovation Conference, including the Cities of Schenectady, Amsterdam and Gloversville; Essex County; Wyoming County and its partner local governments; and the Tug Hill Commission.

The New York State’s Division of Local Government Services is NY’s premier source of training and technical assistance to local governments. 

The State of New York is committed to strengthening state and local partnerships and works fervently to foster collaborative solutions to local challenges through the Local Government Efficiency, Training, and Community Development and Sustainability program initiatives. 

Learn more about the Division’s work by clicking here.

Law amends special accidental death benefit available to the survivors of police officers and firefighters killed in the line of duty

On October 22, 2019 Governor Andrew M. Cuomo signed legislation (Senate 3168-A/Assembly 4079-B) increasing special accidental death benefits [SADB] for "a widow or widower" and children of police officers and firefighters killed in the line of duty.

The new law, which takes effect immediately, increases cost of living benefits by 3 percent for a deceased's spouse or the deceased's children under the age of 18 or, if a student, under the age of 23 and certain "other eligible" individuals.

These bills also amend the General Municipal Law and the Retirement and Social Security Law by providing for the addition of 3 percent of the salary of the qualified deceased member used in the computation of the special accidental death benefit in cases where the date of death was before 2019.

In addition, these bills affect the SADB payable to eligible survivors of qualified deceased members of the:

New York CityEmployees' Retirement System (NYCERS);

New York CityPolice Pension Fund (POLICE); or

New York CityFire Pension Fund (FIRE)

and who were employed by one of the following employers in certain positions:

New York City Police Department - Uniformed Position;

New York CityFire Department - Uniformed Position;

New York City Department of Sanitation - Uniformed Position;

New York CityHousing Authority - Uniformed Position;

New York CityTransit Authority - Uniformed Position;

New York City Department of Correction - Uniformed Position;

New York City - Uniformed Position as Emergency Medical Technician (EMT);

New York CityHealth and Hospitals Corporation - Uniformed Position as EMT; or

The Triborough Bridgeand Tunnel Authority - Bridge and Tunnel Position.

======================

The Disability Benefits Handbook for fire, police and other public sector personnel

Focusing retirement for disability pursuant to NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured "on-the-job" and "off-the-job."

For more information click on http://booklocker.com/books/3916.html

Requesting authorization to treat the chronic pain that a Workers' Compensation benefits recipient was experiencing from his work-related injuries with medical marihuana

The Workers' Compensation Board among other things, sustained the employer's workers' compensation carrier's denial of a claimant's treating physician's "MG-2 Form" requesting a variance to permit treating his work-related injuries with medical marihuana.

A Workers' Compensation Law Judge [WCLJ] subsequently approved the variance request for causally-related medical marihuana treatment following a hearing and submission of additional medical evidence from claimant's treating medical provider which included a medical report in which the medical provider summarized claimant's pain management regimen and reviewed the various "beneficial effects of the medical mari[h]uana" that claimant had received.

The provider reported, among other things, that Claimant's sleep has improved and pain was reduced "since using medical marihuana," that medical marihuana "allowed him to participate more with his wife and children" and that he "[e]motionally feels much improved" as a result of using medical marihuana. The treating medical provider also noted that claimant was experiencing a "[f]inancial burden with continuing an optimal dose of the medical THC."*

The Workers' Compensation Board's reverse and vacated the WCLJ's decision, finding that "it could not approve a variance for treatment already rendered. Claimant appealed the Board's decision.

The Appellate Division, citing 12 NYCRR 324.3 [a], explained that a variance is a treating medical provider's request for authorization of medical care that varies from the Medical Treatment Guidelines, and, generally, the burden of proof to establish that a variance "is appropriate for the claimant and medically necessary shall rest on the [t]reating [m]edical [p]rovider requesting the variance," noting that 12 NYCRR 324.3 [a] [1] provides that "[a] variance must be requested and granted by the carrier, [the] Special Fund, the Board or order of the [Board] Chair before medical care that varies from the Medical Treatment Guidelines is provided to the claimant and a request for a variance will not be considered if the medical care has already been provided."

However, said the Appellate Division, in its view, although the Board properly denied the variance request for medical care, that applied only to the extent such care had already been provided. In contrast, the court opined that in "an instance such as here, however, where the claimant has a chronic pain condition necessitating ongoing treatment, the Board should have addressed the merits of claimant's variance request for prospective medical marihuana treatment."

The Appellate Division then remitted the matter to the Board "for consideration in the first instance of claimant's variance request for prospective treatment."

* Tetrahydrocannabinol [THC] binds with the cannabinoid 1 [CB1] receptors in the brain and produces a high or sense of euphoria. In contrast, Cannabidiol [CBD] binds very weakly, if at all, to CB1 receptors is reported to be able to interfere with the binding of THC and dampen its psychoactive effects.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07470.htm

Confusing permanent appointment with attaining tenure in the position

In Matter of Civil Serv. Employees Assn., Local 1000, AFSCME AFL-CIO v New York State Off. of Children & Family Servs., 174 AD3d 1206 [CSEA] and, similarly, in Ayers v City of Mount Vernon, Appellate Division, Second Department, 2019 NY Slip Op 07230 [Ayers], it appears that there some misunderstanding or misapplication of the words of art "permanent appointment" and "tenure" in determining the employment  status of a public employee while he or she is serving a probationary period.

In CSEA, the court states: "Respondent determined that, at the time of the termination, Sansky had 25 days remaining in his probationary period and that, because he had not yet been permanently appointed to the position of Cadet Leader 1, he was not entitled to a pretermination hearing under Civil Service Law §75 or the applicable collective bargaining agreement" [emphasis supplied].

In Ayers, the "Notice of Appointment" reported in the decision indicated that the plaintiff, Andrea L. Ayers, would serve a six-month probationary period, after which she would be appointed to her position permanently [emphasis supplied].

However, in both situations as described in these decisions the "appointment status" of the individual was that of a "permanent employee" but the individual had not attained a "tenured" appointment status in the position. This is significant with respect to the appointee's right to "notice and hearing" as a condition precedent to termination for cause and for other purposes set out in law.

As a general rule, an individual appointed to a position on a permanent basis attains such status on the effective date of such "appointment" but [1] does not attain tenure in the position until he or she satisfactorily completes his or her maximum period of probation or [2] attains tenure by estoppel, acquisition, default, or otherwise by operation of law or [3] attains tenure as the result of the appointing authority's lawfully truncating the individual's maximum period of probation. In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

York v McGuire, 63 NY2d 760, sets out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his or her ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he or she has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Further, the distinction between a date of "permanent appointment" in contrast to the date on which an appointee "attains tenure" is illustrated in other provisions of the Civil Service Law such as §80.1 [layoff] where, in pertinent part, it provides that ... incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.

The CSEA decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05744.htm

The Ayers decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07230.htm