ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

May 17, 2023

Recent administrative hearing decisions issued by New York State's Commission of Education Dr. Betty A. Rosa

Termination of a teacher during her serving an extension of her probation period pursuant to written agreements.

The teacher claimed the discontinuance of her probation was unconstitutional or unreasonable. In addition, the teacher contended that she had attained "tenure by estoppel".  She sought, among other relief, an order directing New York City Board of Education “to either grant tenure to [her] or to declare that she has received tenure by estoppel.”

The Commissioner opined that the appointing authority may "discontinue the services of a probationary teacher 'at any time and for any reason, unless the teacher establishes that the termination was for a constitutionally impermissible purpose, violative of a statute, or done in bad faith'”. The Commissioner's noted "bad faith” has been defined as  “[d]ishonesty of belief, purpose, or motive”, citing Appeals of Prisinzano, 62 Ed Dept Rep, Decision No. 18,195, citing Black’s Law Dictionary [11th ed. 2019].

Noting that the petitioner has the burden of demonstrating a clear legal right to the relief requested and establishing the facts upon which he or she seeks relief, the Commissioner concluded "Petitioner has not proven that [appointing authority] discontinued her probation in bad faith" and dismissed the teacher's appeal.

Click HERE to access Commissioner Rosa's decision posted on the Internet.

 

Challenges to actions of a Board of Education related to school district expenditures and petitions seeking the removal of the superintendent, assistant superintendent, and the  president of the school board.

The Commissioner dismissed one of the Petitioner's two appeals,* explaining the Petitioner failed to join a necessary party. A necessary party, said the Commissioner, is a person or entity "whose rights would be adversely affected by a determination in favor of a petitioner and must be joined as such."

The Commissioner also denied the Petitioner’s second appeal in which he sought the removal of certain named school district officials.

Noting that "The Commissioner of Education may remove a school officer or member of a board of education from office when it is proven to the satisfaction of the Commissioner that the officer or board member has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule, or regulation of the Board of Regents or the Commissioner," the Commissioner opined that "Petitioner alleges, without proof" that named school district personnel engaged in a “concerted effort to cover up [their] many transgressions” related to the fundraiser." 

As an example, the Commissioner's decision notes Petitioner admitted that he “do[es] not know for certain” that the board president acted improperly, but complains that she “was absolutely no aid in seeking the truth ....” This speculation, said the Commissioner, "does not constitute proof that any respondent violated the Education Law" and denied the Petitioner's application for removal.

In addition, the Commissioner issued individuals named in the removal application certifications pursuant to Education Law §3811(1). Such s certification authorizes a board of education to indemnify "a respondent for costs incurred in defending against a proceeding arising out of the exercise of the respondent’s powers or the performance of the respondent’s duties as a board member or other official listed in §3811 (1)".

* Because the appeals present similar issues of fact and law, they were consolidated for decision [See 8 NYCRR 275.18] 

Click HERE to access Commissioner Rosa's decision posted on the Internet.

May 16, 2023

Absent consideration of a disciplinary hearing officer's report or other factual findings, an appointing authority has no basis to make a disciplinary determination

The Plaintiff in this CPLR Article 78 proceeding was served with disciplinary charges pursuant to §75(2) of the Civil Service Law alleging he "caused himself to receive unauthorized overtime compensation and an unauthorized increase in salary for a pay period."   

Although a §75 disciplinary hearing was conducted before a duly designated hearing officer, the hearing officer failed to issue a report of findings or make a recommendation with respect the disposition of the disciplinary charges filed against Plaintiff by the appointing authority. Notwithstanding this defect in the disciplinary procedure,* the appointing authority terminated Plaintiff's employment effective December 31, 2019.

In response to Plaintiff's challenge to the appointing authority's action, Supreme Court concluded that the Board's determination was not arbitrary and transferred the matter to the Appellate Division.**

The Appellate, noting that it is undisputed that "the hearing officer did not issue a report with findings or recommendations" before the appointing authority made its determination to terminate Plaintiff 's employment, concluded that any action taken by the appointing authority was "unavoidably ... arbitrary", citing Matter of Wiggins v Board of Educ. of City of N.Y., 60 NY2d 385.

Accordingly, the Appellate Division held that "under the circumstances, the [Petitioner] is entitled to be reinstated to his position and to back pay and benefits, even if the proceedings against him eventually lead to the termination of his employment."

The court granted the Plaintiff's Article 78 petition, annulled the determination of the appointing authority, reinstate the Plaintiff to his former position, with full back pay and benefits, and "remitted the matter to the [appointing authority] for a new hearing and a new determination with respect to the charges."

* §75.2 of the Civil Service Law, in pertinent part, provides "In case a deputy or other person is so designated, he shall, for the purpose of such hearing, be vested with all the powers of such officer or body and shall make a record of such hearing which shall, with his recommendations, be referred to such officer or body for review and decision." 

 ** See CPLR §7804(g).

Click HERE to access the Appellate Division's decision posted on the Internet.

 

May 15, 2023

Employee terminated after failing to provide a urine sample for a drug test

The New York City Transit Authority [Respondent] terminated Plaintiff's employment as a bus operator because he failed to provide a urine sample for a drug test. The Plaintiff commenced a proceeding pursuant to CPLR Article 75 in an effort to vacate an arbitration award sustaining the Respondent's terminating Plaintiff's employment. The Supreme Court denied the petition, dismissed the proceeding and Plaintiff appealed.

The Appellate Division's decision noted:

1. The courts have limited power when reviewing an arbitration award, indicated an arbitrator "exceed[s] his [or her] power [within the meaning of the statute] where the ... award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power", citing Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100 AFL-CIO, 6 NY3d 332*;

2. "Even where an arbitrator has made an error of law or fact, courts generally may not disturb the arbitrator's decision", citing Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530; and

3. "A party seeking to overturn an arbitration award bears a heavy burden and must establish a ground for vacatur by clear and convincing evidence."

Observing that Plaintiff failed to establish by clear and convincing evidence that the arbitration award should be vacated, the Appellate Division opined that although the Plaintiff contended on appeal that the arbitration award was irrational, the arbitration award was supported by evidence in the record, and, thus, was not irrational.

The Appellate Division's conclusion: Supreme Court properly denied and dismissed Plaintiff's CPLR Article 75 petition.

* See, also, Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85.

Click HERE to access the Appellate Division decision posted on the Internet.

 

May 14, 2023

Justia lists Employment Law blawgs

Justia's top 14 of its 225 Employment Law blogs as of May 14, 2023, sorted by popularity, are listed below.

In addition, Justia currently lists 3,558 Blawgs in 73 subcategories of practice areas. Click on the URL shown below to access its complete list of practice areas.

 https://blawgsearch.justia.com/blogs

 

Employment Law Blogs

New York Public Personnel Law  National Rank this Week: 11

Working Now and Then National Rank this Week: 19

JOTWELL - The Journal of Things We… National Rank this Week: 38

HR & Benefits Update National Rank this Week: 40

HR Watchdog National Rank this Week: 44

Impact Litigation Journal National Rank this Week: 67

Employer Law Blog National Rank this Week: 70

Whistleblower Protection Blog National Rank this Week: 71

Employment Law Business Guide National Rank this Week: 81

Wage & Hour - Development… National Rank this Week: 97

Bean Kinney & Korman Blog National Rank this Week: 103

Kaufman Dolowich & Voluck, LLP… National Rank this Week: 118

Employee Rights Blog National Rank this Week: 123

Florida Estate Planning Lawyer… National Rank this Week: 128 

 

 

 

May 13, 2023

Selected press releases and agency memoranda recently issued

New York State Sheriffs’ Institute civil school   Fifty-three deputy sheriffs and civilian staff from Sheriff’s offices around the state attended the New York State Sheriffs’ Institute civil school held recently in Albany, New York, including Deputy Jamie Darling and civil staff Jordan Somers, Kate Davis, and Sierra Palmer.   This was the first week in a two week-long day training program offered each year by the Sheriffs’ Institute.

All Sheriff’s offices in New York have civil law enforcement functions, including the service of process, enforcement of judgments and other court orders and mandates. The school provides participants with training in the latest advances in civil law enforcement and a forum to discuss current civil law enforcement issues and share best practices. Oswego County’s Civil Division is staffed by a sergeant, 3 deputies and 6 civilians with roles such as account clerk and senior account clerk.

The Sheriffs’ Institute is a not-for-profit corporation formed in 1979 to advance criminal justice education, prevent juvenile delinquency, and support victims of crime and their families.

NYC civil service exam: Applications open in May, 2023. Published: May. 07, 2023, 9:00 a.m. by Annalise Knudson | aknudson@siadvance.com STATEN ISLAND, N.Y. — The New York City Department of Citywide Administrative Services (DCAS) has released its May application schedule for civil service exams. Open, competitive, computer-based tests are administered throughout each month for various positions. If you meet the basic requirements of the job, you can apply for your exam online at Online Application System (OASys) or at one of the Computer-Based Testing and Application Centers (CTAC).

Niagara County hiring more corrections officers by Robert Creenan | robert.creenan@lockportjournal.com, May 6, 2023 Niagara County is partaking in another round of hiring corrections officers without the need for candidates to take a Civil Service exam. Interested candidates have until May 19 to complete an application, which can be found on the Niagara County website. They then have until June 30 to fill out an online questionnaire covering their training, experience and any other skills.

Press Releases, Memoranda, News items and Bulletins 

Policy Bulletin No. 2023-01 pdf February 2023, Paid Parental Leave. 

Advisory Memoranda No. 2023-02 pdf March 2023, Memoranda of Understanding on Extension of Special Military Benefits and Post-Discharge Benefits through December 31, 2023.

Advisory Memoranda No. 2023-01 pdf February 2023, Special Holiday Waiver Memoranda of Understanding for Security Supervisors Unit (SSpU), Security Services Unit (SSU), and Agency Police Services Unit (APSU).

State Contract and Payment Actions in March | Office of the New York State Comptroller

Union Pressure Aims to Hit Home - Empire Center for Public Policy Empire Center for Public Policy The bill (S6477) was filed last month by Senate Civil Service and Pensions committee chair Robert ... What's behind NY's union membership slide?

New York Enacts New Requirement for Prior Notice of Certain Healthcare Transactions Sidley Austin LLP The law considers management services organizations (MSOs) to be health care ... or plan providing health care services in” the state of New York.

New York State Budget Brings Sweeping Changes to the Home Health Care Industry Littler Mendelson P.C. New York Budget for FY 2023-2024 includes legislation affecting the home ... Temporary Health Care Services Agencies (THCSAs) register with the NY.

New York Enacts New Requirement for Prior Notice of Certain Healthcare Transactions Sidley Austin LLP The law considers management services organizations (MSOs) to be health care ... or plan providing health care services in” the state of New York.

New York Enacts Long Negotiated Budget Bill with Sweeping Implications for Health Care JD Supra On May 2, 2023, legislators approved the $229 billion New York State FY ... The Budget extends and expands various provisions of existing law ...

Genesee County participating in new Pilot Program for upcoming Correction Officer Civil ... Video News Service A new pilot program is being tested by New York State's Civil Service Department. “Now is the time to begin a rewarding career in law enforcement.

State Contract and Payment Actions in March | Office of the New York State Comptroller New York State Comptroller Department of Civil Service. $331.6 million to CaremarkPCS Health LLC to provide pharmacy benefit services for the Empire, Excelsior and Student ...

New York Enacts New Requirement for Prior Notice of Certain Healthcare Transactions Sidley Austin LLP The law considers management services organizations (MSOs) to be health care ... or plan providing health care services in” the state of New York.

New York State Budget Brings Sweeping Changes to the Home Health Care Industry Littler Mendelson P.C. New York Budget for FY 2023-2024 includes legislation affecting the home ... Temporary Health Care Services Agencies (THCSAs) register with the NY ...

Union Pressure Aims to Hit Home - Empire Center for Public Policy Empire Center for Public Policy The bill (S6477) was filed last month by Senate Civil Service and Pensions committee chair Robert ... What's behind NY's union membership slide?

What's News, Breaking: Friday, May 12, 2023 - Brooklyn Eagle BROOKLYN BRIDGE PARK — The New York Road Runners Club is kicking off its ... can be found on the Department of Civil Service's official website, ...

What's News, Breaking: Thursday, May 11, 2023 - Brooklyn Eagle BROWNSVILLE — The Child Center of NY on Thursday, May 11, ... on HELP can be found on the Department of Civil Service's official website, ... 

NYS – Rally For Access to Representation Act Law - NY Carib News A $120 million investment in legal and immigration services ... urging the passage of this legislation, which is a pressing civil rights ...

Civil Service and Pensions Meeting | NY State Senate The New York State Senate S3513. Authorizes Douglas Brenning of the village of New York Mills to take the competitive civil service examination for the position of p..

County considering waiving residency requirement for certain employees - Yahoo News Yahoo News Rob Creenan, Niagara Gazette, Niagara Falls, N.Y. ... New York counties that waived civil service exams this past year for corrections officers, ...

New York Joins Other States with Health Care Transaction Review Laws | Mintz - JDSupra On May 3, 2023, New York joined Connecticut, Delaware, Massachusetts, Nevada, New Jersey, Oregon, Rhode Island, Washington, and California in 

Civil Service and Pensions Meeting | NY State Senate S3513. Authorizes Douglas Brenning of the village of New York Mills to take the competitive civil service examination for the position of p..

 

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Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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