Procedural error results in the dismissal of an appeal to the Commissioner of Education

§310 of the Education Law provides for an aggrieved party filing an appeal or petition challenging an act or omission with the Commissioner of Education and the Commissioner is "authorized and required to examine and decide" issues involving, but not limited to, an act or omission at a school district meeting; by a district superintendent and other officers, and official act or decision of any officer, school authorities, or meetings concerning any other matter addressed by the Education Law.

In this appeal, a school superintendent [Petitioner] asked the Commissioner of Education to remove the president and member of the board [President] from the School Board. The Commissioner dismissed the Petitioner's appeal, explaining appeal must be rejected and the application denied because Petitioner's application failed to include proper notice to the President as required by §277.1(b) of the Commissioner’s regulations,* citing Appeal of Cea, 58 Ed Dept Rep, Decision No. 17,482 among other Decisions of the Commissioner of Education.

The notice of petition serves to alert a party to the fact that he or she is the subject of removal proceedings and a notice of petition that fails to contain the required language is fatally defective and does not secure jurisdiction over the respondent.

* See 8 NYCRR Part 877, Practice on application for removal of school officers.

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

http://www.counsel.nysed.gov/Decisions/volume59/d17803

Agency's alleged failure to process an employee's contract grievance does not state a claim that the union breached its duty of fair representation

PERB's ruled that petitioner [Employee] in this CPLR Article 78 action failed to state a claim of improper practices against his employer [Agency] and his employee organization [Union] based on his allegation that the Agency "did not process his grievances quickly enough." The Employee appealed but the Appellate Division unanimously affirmed PERB's determination.

Citing Civil Service Bar Association, Local 237 v City of New York, 64 NY2d 188, the Appellate Division explained that PERB had rationally found that Employee failed to allege facts that would show that his Union had engaged in arbitrary, discriminatory or bad faith conduct, which is necessary to state a claim that the Union had breached its duty of fair representation within the meaning of Article 14 or the Civil Service Law, typically referred to as the Taylor Law.

Noting that Employee had acknowledged that a Union representative had sent an email to the Agency seeking to schedule three of Employee's grievances for a "Step II hearing" with respect to Employee's primary complaint that the Agency "did not process his grievances quickly enough," the court opined that such an allegation "does not present a basis for finding that [the Union] breached its duty of fair representation." As the Employee failed to show that the Union had breached its duty of fair representation, he was precluded from litigating directly against the Agency for any alleged improper employer practice within the meaning of Civil Service Law §209-a(1).

Further, said the court, PERB "rationally concluded that [Employee's] charge failed to allege facts that would show that [the Agency] refused to process his grievances on the basis of improper motivation or discrimination. Indeed, the Appellate Division observed that "construed liberally in [Employee's] favor, the allegations in the charge are conclusory and fail to establish that PERB acted arbitrarily and capriciously in dismissing the charge."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00065.htm

A retired member is required to repay pension benefits mistakenly paid to him by the New York State Employees Retirement System

The Petitioner in this CPLR Article 78 action began working as an engineer for the New York Power Authority in March 1980. In order increased the pension benefits payable to him by the New York State and Local Retirement System [NYSERS] upon retirement, in January 2001 Petitioner submitted an application to NYSERS in an effort to purchase "military service credit" based on his service as a Naval Reserve Officer from June 1966 until April 1969, during which period he served on merchant ships recommissioned to transport supplies to support the Vietnam war effort pursuant to a Naval Training and Service Agreement. Following such service Petitioner joined a naval reserve unit and was honorably discharged in February 1979.

Although his application was initially denied, NYSERS subsequently advised Petitioner that his application had been approved.* Petitioner retired in January 2003 and began receiving NYSERS pension benefits that included the value of the approved military service credit.

In October 2017, however, NYSERS advised Petitioner that it had made an error in granting him military service credit toward his pension benefits. Specifically, he was informed that his service aboard the merchant marine ships did not qualify as military duty within the meaning of the State's Military Law §243 and, consequently, military service credit was not available to him.

In addition, Petitioner was told that [1] his pension benefits would be reduced; [2] his payment of $5,088.10 for the member service credit he purchased would be refunded to him with interest; and [3] he was required to repay NYSERS the amount of the overpayment of benefits that he had already received.

Petitioner sought administrative review and, following a hearing, the Hearing Officer sustained NYSERS' determination. The Comptroller adopted the Hearing Officer's decision and thereupon Petitioner commenced this CPLR article 78 proceeding challenging the Comptroller's decision.

The Appellate Division sustained the Comptroller's decision, explaining:

1. A member of NYSERS, upon application, "may obtain a total not to exceed three years of service credit for up to three years of military duty, as defined in New York State's Military Law §243 if the member was honorably discharged from the military; and

2. §243(1)(b) of the Military Law provides, in relevant part, that military duty includes "service in the merchant marine which shall consist of service as an officer or member of the crew on or in connection with a vessel . . . owned by, chartered to, or operated by or for the account or use of the government of the United States . . . and who served satisfactorily as a crew member during the period of armed conflict [December 17, 1941]to August 15, 1945] aboard merchant vessels."**

Clearly, said the court, "Petitioner's service in the merchant marine from 1966 to 1969 did not fall within the time parameters set forth in the statute." Further, the court opined that Petitioner failed to establish that his service aboard merchant vessels constituted active military duty as a Naval Reserve officer. Citing Matter of McMorrow v Hevesi, 6 AD3d 925, the Appellate Division said that it has only recognized "active duty, which excludes temporary and intermittent . . . service in any reserve . . . force,"  for purposes of claiming member service credit pursuant to Retirement and Social Security Law §1000 and Military Law §243(1)(b).***

Noting that there was evidence in the record that could lead to a different result, the Appellate Division opined that "because substantial evidence supports the Comptroller's determination that [Petitioner] was not entitled to military credit under the governing statutes, [it would] not disturb it."

Addressing Petitioner argument that he was erroneously directed to repay the pension benefits mistakenly paid to him, the court said that the Comptroller "had no choice but to seek recoupment of such benefits, as the Comptroller has a duty to correct errors in order to ensure the integrity of the public retirement system", citing Matter of Mowry v DiNapoli, 111 AD3d 1117. Further, said the Appellate Division, the Comptroller "is not estopped from doing so because of errors committed by [NYSERS] officials."

* In exchange for a nonrefundable payment of $5,088.10, Petitioner was awarded 1.53 years of additional member service credit toward his pension benefits.

** §85 of the Civil Service Law defines "qualifying" military service" for the purposes of eligibility for additional credit allowed veterans in competitive examinations and preference in retention upon the abolition of positions in the public service. [See, also, §85.7(5).]

*** Petitioner conceded that he did not qualify for veteran's benefits as a result of his service on merchant ships during the period June 1966 through April 1969.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_00198.htm

Effective date of permanent appointment to a position in the classified service

In an appeal challenging the termination of an employee before the completion of his probationary period, the Appellate Division  noted  that the appointing authority had determined that at the time of the employee's termination there were 25 days remaining in his probationary period and that because he had not yet been "permanently appointed to the position, he was not entitled to a pretermination hearing under Civil Service Law §75 or the applicable collective bargaining agreement."

It would have been more accurate had the appointing authority indicated that there were 25 days remaining in the employee's probationary period and that although he had completed his minimum period of probation, he had not yet attained tenure in the position and thus the employee, although appointed to the position as a permanent employee, was not entitled to a Civil Service Law §75 pretermination hearing or an equivalent disciplinary procedure set out in the controlling collective bargaining agreement.

As a general rule, an individual appointed to a position on a permanent basis has such status on the effective date of the "permanent appointment" but does not attain tenure in the position until:

[1] he satisfactorily completes his maximum period of probation; or

[2] by estoppel, acquisition, default, or otherwise by operation of law; or

[3] 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 ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he 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 the position in contrast to the date on which an appointee "attains tenure" in the position 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 decision is posted on the Internet at:

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