Failure to "join" a necessary party in filing an appeal with the Commissioner of Education a fatal omission

An individual and, or, an entity whose rights would be adversely affected by a determination in favor of a petitioner is a necessary party in filing an appeal with the Commissioner of Education pursuant to §310 of the Education Law and must be named in the petition as such. 

Dismissing this appeal seeking the termination of the superintendent of the school district, Commissioner of Education Betty A. Rosa noted that the petitioner's had failed to notify a necessary party of the filing of the appeal, the superintendent. The Commissioner explained that were the petitioner to prevail, superintendent's right "would be adversely affected" and thus the superintendent "is a necessary party and must be joined as such."

Citing Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331, and other decisions by the Commissioner, Dr. Rosa further explained that such "joinder" requires that the necessary party be clearly named in the caption of the appeal and served with a copy of the notice of petition and [the] petition".

As the petitioner failed to serve the superintendent with the copy of the petition and the superintendent’s contractual rights would be adversely affected by a determination in petitioner’s favor, the Commissioner ruled the petitioner's appeal "must be dismissed."

Click HEREto access the Commissioner's decision posted on the Internet. 

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.  Click to Read a FREE excerpt (requires Adobe Reader).  

 

Employee's request that his employer provide for his defense and indemnification in a civil action denied as the underlying act was beyond the scope of his employment

In this appeal to Commissioner of Education Betty A. Rosa, a former teacher [Educator] contended that the Board of Education of his former employer, a school district, should have granted his request for defense and indemnification with respect to a civil action initiated by a former student alleging, among other things, that Educator had sexually assaulted her while she was a student at the school district’s high school. 

Addressing the merits Educator's argument, the Commissioner Rosa said that Education Law §3811 identifies the circumstances under which a school district is required to defend and indemnify “member[s] of the teaching or supervisory staff” in civil “actions or proceedings.” Defense and indemnification, opined the Dr. Rosa, is only available if the alleged conduct arose out of the “exercise of [a teacher's] powers or the performance of [his or her] duties,” a phrase equivalent to the term “scope of employment.”

Citing N.X. v Cabrini Med. Ctr., 97 NY2d 247 and other decisions, the Commissioner noted that New York State's Court of Appeals has unambiguously held that sexual assault perpetrated by an employee is a “clear departure from the scope of employment, having been committed for wholly personal motives”. Thus, opined Commissioner Rosa, the Board of Education "appropriately denied [Educator's] request that the school district defend him against allegations of sexual assault."

The Commissioner also noted that "[t]he record does not reveal whether [the Board of Education had] adopted the protections of Public Officers Law §18" but concluding that this would not affect the outcome of this appeal as Public Officers Law §18(3)(a) imposes an identical “scope of employment” requirement, citing Matter of Dreyer v City of Saratoga Springs, 43 AD3d 586.

Click HEREto access the Commissioner's decision. 

 

Challenging the results of a school board election

In this appeal to the Commissioner of Education the Board of Education of the Monticello Central School District sought an order annulling the results its 2022 school district election to fill three "open seats" on the school board because the margin of victory for two of the three seats "was less than the total number of affidavit ballots", which valid affidavit ballots had not been included in the tally.

In the words of the Commissioner, to invalidate the results of a school district election, the petitioner, in this instance the Monticello Central School District's Board of Education, must either: "[1] establish not only that irregularities occurred but also that any irregularities actually affected the outcome of the election or were so pervasive that they vitiated the electoral process; or [2] demonstrate a clear and convincing picture of informality to the point of laxity in adherence to the Education Law."

Concluding that the School Board failed to satisfy its burden "of demonstrating a clear legal right to the relief requested and establishing the facts upon which [it] seeks relief," the Commissioner dismissed the School Board's appeal.

Click the URL set out below to access the full text of the Commissioner's decision. 

http://www.counsel.nysed.gov/Decisions/volume62/d18167

  

Audits and reports issued by the New York State Comptroller during the week ending August 12, 2022

New York State Comptroller Thomas P. DiNapoli issued the following during the week ending August 12, 2022

Click on the text highlighted in color to access the complete audit report.

BOCES and School Districts

Clinton-Essex-Warren-Washington Board of Cooperative Education Services (BOCES) – Employee Benefit Plan Forfeited Funds (2022M-31) BOCES officials did not ensure the administrator returned forfeited funds from the health flexible spending arrangement (FSA), dependent care assistance program (DCAP) and health reimbursement arrangement (HRA) in a timely manner. As of Dec. 31, 2021, the administrator had not returned $83,068 (97%) in forfeited funds from the FSA, DCAP and HRA for the 2014-15 through 2020-21 plan years to BOCES. As a result, all forfeited funds were not annually available for BOCES’ use. Officials were not aware of the unreturned funds until auditors notified them in January 2022. BOCES lacked adequate procedures to ensure the administrator returned all forfeited funds from the FSA, DCAP and HRA in a timely manner.

East Rochester Union Free School District – Procurement (Monroe County)  District officials did not always procure goods and services in accordance with board policies and applicable statutory requirements. Of the $1.88 million in purchases tested from 25 vendors, district officials did not adequately document that they properly sought required competition for 18 purchases. The board and district officials did not develop adequate written purchasing policies and regulations and the board did not annually review the policies as required.

Kenmore-Town of Tonawanda Union Free School District – Change Orders (Erie County) The board and district officials did not properly manage project change orders. The board and district officials did not aggregate 31 change orders, totaling over $860,000 that were for the same or similar types of material or service. As a result, auditors question whether the change orders may have been split to avoid having to seek competitive bids for the additional work. Officials also did not properly approve 296 change orders totaling $3.9 million or comply with the district’s procurement policies and regulations.

Kenmore-Town of Tonawanda Union Free School District – Electronic Records and Reports (Erie County) District officials did not properly maintain electronic records (e-records) in accordance with applicable legal and regulatory requirements. The board and district officials did not ensure that e-records were preserved in their original format, intact, in a directory or filing system to maintain the records’ integrity, as required. They also did not adopt an adequate written policy that addressed the creation, maintenance, and storage of e-records, as required. Without a secure e-record storage system in place, there is a risk that unauthorized changes or modifications could be made without detection.

Lancaster Central School District – Financial Management (Erie County) The board and district officials did not properly manage fund balance and reserve funds. The board and district officials did not implement our prior audit’s recommendations to improve their budgeting practices and transparency with taxpayers. Officials overestimated budgetary appropriations by an annual average of $13 million (13%) and appropriated, on average, $2.8 million of fund balance that was not used. Reserves were not used in accordance with adopted budgets and were overfunded in two reserves by approximately $3.3 million. These practices resulted in real property tax levies that were higher than necessary.

 

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