Requirements to be met when seeking to reopen a prior decision of the Commissioner of Education

The Commissioner of Education dismissed Petitioner's appeal as untimely and outside the jurisdiction of the Commissioner.* Petitioner subsequently asked the Commissioner to reopen her appeal.

Observing that 8 NYCRR 276.8 of the Commissioner’s regulations governs applications to reopen a prior decision, the Commissioner noted that applications to reopen a prior decision are:

1. Granted solely as a matter of discretion exercised by the Commissioner;

2. Will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made; 

3. A reopening may not be used to augment previously undeveloped factual assertions and arguments, advance new legal arguments, or reargue issues presented in a prior appeal;

4. An application to reopen must be made within 30 days of the date of the underlying decision; and

5. An application must be dismissed for improper service. 

The Commissioner explained that service of an application to reopen “shall be made in the manner set forth in section 275.8(b)” of the Commissioner’s Regulations, which provide, in relevant part, that "service ... shall be made by United States mail, by private express delivery service or by personal service; service by mail shall be complete upon deposit of the paper enclosed in a postpaid properly addressed wrapper, in a post office or official depository under the exclusive care and custody of the United States Postal Service." 

Although Petitioner' submitted an affidavit indicating that she had "mailed the application to her own address," Respondent's affidavit stated that it did not receive a copy of the application and Petitioner failed to present any evidence that a copy of the application to reopen had, in fact, been served on the Respondent. 

Accordingly, the Commissioner dismissed Petitioner’s application to reopen the matter.

* See Appeal of Martinez, 59 Ed Dept Rep, Decision No. 17,781.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume59/d17831

Employees found guilty of falsifying official records

The New York City Department of Environmental Protection [DEP] brought disciplinary charges against two sewage treatment workers [Workers], alleging that they neglected their duty by failing to check that a waste sludge pump was working properly and for falsifying agency records.

OATH Administrative Law Judge Noel R. Garcia found that DEP established that the Workers failed to check that the waste sludge pump was in operation, when in fact it was off during their shifts, and each Worker falsely indicated on the “Hypo Log” that the pump was working properly.

ALJ Garcia recommended a 10-day suspension for each Worker.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1415.pdf

Determining an educator's eligibility for unemployment insurance benefits between two successive academic years

Labor Law §590 (10) provides that "[a] professional employed by an educational institution is precluded from receiving unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment." In Matter of Murphy [Copake-Taconic Cent. School Dist.-Commissioner of Labor], 17 AD3d 762, "a reasonable assurance has been interpreted as a representation by the employer that substantially the same economic terms and conditions will continue to apply to the extent that the claimant will receive at least 90% of the earnings received during the first academic period."

The Unemployment Insurance Appeal Board ruled that the claimant in this action [Claimant] was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment. Claimant appealed.

The employer sent Claimant, a per diem substitute teacher, a letter in June informing her that it wished to retain her to teach during the next academic school year. Claimant applied for unemployment insurance benefits between the two academic years and the Department of Labor awarded her benefits upon finding that the employer did not offer her a reasonable assurance of continued employment.

Although an Administrative Law Judge affirmed the Department of Labor's determination, the Unemployment Insurance Appeal Board [Board] reversed this decision, ruling that the employer had provided Claimant with a reasonable assurance of continued employment and thus she was not entitled to receive the unemployment insurance benefits for which she had applied. Claimant appealed the Board's decision.

The Appellate Division sustained the Board's ruling, holding that the employer had clearly expressed its interest in having Claimant return as a per diem substitute teacher for the next academic year in the June letter that it sent to her. The employer indicated that it anticipated that "there will be as much work for Occasional Per Diem Substitute Teachers" during the following school year as was available to Claimant during the current academic year and the economic terms and conditions would be substantially the same next academic year as the academic year then ending and requested that she acknowledge receipt of the letter.

The court opined that the letter, together with the testimony concerning the per diem rate of pay for the following academic year and number of potential work days available, provides substantial evidence supporting the Board's finding that the employer provided claimant with a reasonable assurance of continued employment and said it found no reason to disturb the Board's decision.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2020/2020_02335.htm

Bringing employees absented due to COVID-19 concerns back to the workplace

The COVID-19 pandemic plateauing in many regions has spurred talk of re-opening the economy and bringing employees back to the workplace. Harris Beach is offering a complimentary webinar on Friday, May 8, 2020, from 9:00 - 10:00 a.m., ET, at which its labor and employment attorneys will address legal considerations for doing so safely and effectively, and field related questions submitted by participants.*

* In addition, Harris Beach will take questions in advance if submitted when you register. The webinar will also be recorded for those unable to attend live.

REGISTER HERE

Instructions for participation will be included in your confirmation email after registration.