Commissioner of Education dismissed §310 appeal naming teachers' association president as a respondent "for lack of jurisdiction"

Plaintiff filed a §310 Education Law petition challenge certain school district hiring practices. The petition named the board of education and the president of the school district's teachers' association as respondents.

With respect to the president of the teachers' association, Dr. Betty A. Rosa, Interim Commissioner of Education, dismissed Plaintiff's §310 appeal for "lack of jurisdiction."

The Commissioner explained that to the extent that Petitioner's requests for relief targeted the actions of an individual serving in his capacity as president of the teachers' association, "[i]t is well settled that union organizations and their representatives are not subject to the jurisdiction of the Commissioner of Education under Education Law §310."

In a footnote to the decision the Commissioner further opined that many of Petitioner's claims would be subject to dismissal on other grounds, including, but not limited to, being untimely and lack of standing to submit an appeal pursuant to Education Law §310.

Click HERE to access the text of the Commissioner's decision.

Sheriffs have the powers accorded police officers under the Criminal Procedure Law but are not mandated to get police officer training [Opinions of the Attorney General 2021-F-1]

The Criminal Procedure Law, granting police officer powers, includes sheriffs in its definition of “police officer,” while the Civil Service Law and General Municipal Law, establishing fitness and training requirements for police officers, exclude sheriffs from their definitions of that term.

In response to a request for a Formal Opinion of the Attorney General, Attorney General Letitia James advised Michael Flaherty, Acting Counsel, Division of Criminal Justice Services [DCJS], that Sheriffs have the powers accorded police officers under the Criminal Procedure Law but are not mandated to get police officer training.

The Attorney General noted that Civil Service Law §58, in defining the term "police officer," excludes a sheriff and under-sheriff, commissioner of police, deputy or assistant commissioner of police, chief of police, deputy or assistant chief of police, or any person having an equivalent title who is appointed or employed to exercise equivalent supervisory authority.

Accordingly, the Attorney General concluded that such officers, including the sheriff, need not meet the age, height, weight, and physical fitness requirements established by DCJS’s Municipal Police Training Council."

The opinion further observes:

"Because a sheriff is deemed a “police officer” by Criminal Procedure Law §1.20(34)(b), he or she is eligible to exercise the powers granted to police officers by the Criminal Procedure Law and the Penal Law.* 

"In summary, while the sheriff is expressly not deemed a “police officer” who needs to satisfy the requirements, including training, of Civil Service Law §58 and General Municipal Law §209-q, he or she must be included in the police officer registry maintained by DCJS and is eligible to exercise the powers granted to police officers by the Criminal Procedure Law and the Penal Law.

"We recognize the anomalous result of a sheriff being a police officer under the Criminal Procedure Law, with the attendant powers, but not being required by General Municipal Law §209-q to receive training as to the exercise of those powers. Indeed, this conclusion differs from the conclusion we have reached with respect to police chiefs in prior opinions, because those police chiefs were not explicitly included in the Criminal Procedure Law’s definition of “police officer.” See Op. Att’y Gen. 2003-1 (village chief of police); Op. Att’y Gen. 85-F12 (municipal police chiefs and commissioners).

"We have been unable to identify the reason for the discrepancy between the powers of a sheriff and the lack of a requirement to obtain training relevant to the use of those powers. We note that many sheriffs will in fact have been trained in previous positions of law enforcement employment. See General Municipal Law §209-q(1)(b) (Municipal Police Training Council certificate valid during continuous service as police officer and for up to 10 years following an interruption of service under certain circumstances).

"The Legislature might wish to consider mandating training for all sheriffs, but absent such legislation, the decision to whether to get training rests with the sheriffs themselves." 

* These powers include possessing an unlicensed firearm, Penal Law §265.20(a)(1)(b); making an arrest without a warrant, Criminal Procedure Law §140.10; using physical or deadly force, if necessary, to effect an arrest or prevent an escape, Criminal Procedure Law §120.80, Penal Law §35.30; executing arrest and search warrants, Criminal Procedure Law §§120.60, 690.25; and stopping and frisking a person in a public place, Criminal Procedure Law §140.50.

Click HERE  to access the full text of the Attorney General's opinion.

 

County's False Alarm Law alleged to violate the due process rights of alarm owners

Federal District court dismissed Plaintiff's law suit against the County defendant upon concluding that the County’s False Alarm Law [1] did not violate the due process rights of County alarm owners; [2] did not effectuate an unlawful taking under the Fifth Amendment; and [3] did not violate New York state law.

The United States Court of Appeals, Second Circuit, affirming the district court's ruling, explained:

1. "The false alarm fines for non-residential alarm owners range from $100 to $500 and are not so high as to have a severe economic impact on a business establishment;

2. "The False Alarm Law does not require alarm owners to disable the alarm or to remove the alarm after a false alarm;

3. "Law enforcement does not stop responding to alarms from a particular establishment if it has responded to a false alarm at that establishment in the past;

4. "The investment-backed expectation—that the alarm system protects its establishment in the event of an emergency—has not been frustrated; and

5. "Because the False Alarm Law aims to preserve law enforcement resources for true emergencies rather than false alarms, the cost associated with false alarm fines would be an expected cost of maintaining an alarm system that calls for law enforcement to respond rather than a departure from the expectations a business would have when investing in such an alarm system."

The text of the Circuit Court's decision is posted on the Internet  HERE 

 

 

Accessing the New York State Workers' Compensation Board's latest information via social media

Did you know the New York State Workers' Compensation Board [WCB] is available on social media? 

For the latest WCB and NY Paid Family Leave news, events, training, and more, access the WCB via the following social media addresses:

FACEBOOK = @NYSWCB

TWITTER = @NYSWorkersComp

INSTAGRAM = @NYSWorkersCompBoard

UTUBE = www.youtube.com/NewYorkStateWorkersCompensationBoard

 

 

Court rules appointing authority's imposing the disciplinary penalty of termination "shocking to one's sense of fairness" under the circumstances

Petitioner in this CPLR Article 78 proceeding challenged the appointing authority's [Town] dismissing her from her position with the Town after she was found guilty of four charges alleging misconduct and insubordination arising from an incident in which Petitioner "took approximately $181 from the Town's petty cash fund."*

At her Civil Service Law §75 disciplinary hearing Petitioner maintained that she intended only to borrow the money and to replenish the fund later. Addressing this representation, the Appellate Division said "it was undisputed that [Petitioner] left a note in the [Town's] petty cash envelope indicating that she owed money to the fund."

The Appellate Division modified the Town's determination "on the law" and annulled that part of the Town's determination finding Petitioner guilty of charges 1 and 2,  finding charges 1 and 2, which charged her respectively with theft and larceny, was not supported by substantial evidence** and vacated the penalty of termination.

The court explained that "A person "commits larceny when, with intent to deprive another of property or to appropriate the same to him[- or her]self or to a third person, he [or she] wrongfully takes, obtains or withholds such property from an owner thereof." Here, said the Appellate Division, it concluded that Petitioner's actions, "particularly the creation and placement of the note" indicating that she "owed money to the fund" are inconsistent with an intent to deprive or appropriate and annulled that part of the Town's finding Petitioner guilty under charges 1 and 2.

However, said the court, with respect to charges 3 and 4, alleging Petitioner had violated certain Town's policies, Petitioner's contention that the charges 3 and 4 are not supported by substantial evidence of insubordination "is not properly before us because it [was] not raised in the petition."

In light of Petitioner's "32 years of service to the Town, her impending retirement, and the absence of grave moral turpitude," the majority of the court, citing the so-called Pell Doctrine,*** concluded that the penalty of termination was "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." 

The matter was then remitted to the Town for imposition of an "appropriate penalty less severe than termination."

* The decision notes that Petitioner contended, and the Town "correctly conceded," imposing a penalty of a six-month suspension without pay would be "illegal."

** Presiding Justice Carni and Justice Curran, dissenting, said that in their view [1] the determination of Petitioner's guilt with respect to charges 1 and 2 was supported by substantial evidence; [2] there was evidence from which a reasonable mind could conclude that Petitioner did not intend to return the funds taken; and [3] the penalty of termination was not "so disproportionate to the offense[s] as to be shocking to one's sense of fairness and thus does not constitute an abuse of discretion as a matter of law."

*** Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Click HERE to access the text of the Appellate Division's ruling.