New York Public Personnel Law

Appointing authority's decision to terminate an employee for “serious misconduct” found appropriate under the circumstances

noreply@blogger.com (The Public Employment Law Press) — Tue, 21 May 2013 14:00:00 +0000

Appointing authority's decision to terminate an employee for “serious misconduct” found appropriate under the circumstances

2013 NY Slip Op 03560, Appellate Division, First Department

A New York City police officer was served with disciplinary charges alleging that [1] he left a loaded firearm unsecured in his backpack on a desk in a library and subsequently made an unauthorized call to a witness in an investigation that followed concerning the incident and [2] made vulgar statements and exposed his genitals to an arrestee while on duty in the precinct.

New York City’s Police Commissioner determined that the officer was guilty of serious acts misconduct and terminated his employment.

The Appellate Division* sustained the Commissioner’s decision noting that the officer had admitted the allegations with respect to the firearm incident and that there was substantial evidence to support the hearing officers determination with respect to the precinct incident.

As to the Commissioner’s decision to terminate the police officer, citing Kelly v Safir, 96 NY2d 32, the Appellate Division said that “The penalty imposed does not shock the conscience since [the Commissioner] is accountable to the public for the integrity of the Department."

* Supreme Court transferred the CPLR Article 78 petition filed with it by the police officer to the Appellate Division in accordance with CPLR §7803.4.with respect to the issue of whether substantial evidence supported the administrative determination made as a result of a hearing held at which evidence was taken.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03560.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

There is a constitutional right to be present during the testimony of the complaining child absent some compelling reason to bar the employee from the hearing while the child is testifying

noreply@blogger.com (The Public Employment Law Press) — Tue, 21 May 2013 11:00:00 +0000

There is a constitutional right to be present during the testimony of the complaining child absent some compelling reason to bar the employee from the hearing while the child is testifying

2013 NY Slip Op 03432, Appellate Division, First Department

A teacher appealed the Supreme Court’s denial of her petition to vacate the adverse disciplinary arbitrator’s award and its granting the employer’s motion to confirm the award.

The critical issue before the Appellate Division: was the teacher denied administrative due process when she was not permitted to be present during the testimony of the “complaining witness,” a student?

The Appellate Division unanimously reversed the Supreme Court’s ruling “on the law” and remanded the matter to the hearing officer with instruction that the hearing officer take testimony from the child complaining witness in the presence of the teacher.

The Appellate Division, citing Matter of Daniel Aaron D., 49 NY2d 788, explained that the teacher's exclusion from the administrative hearing “during the testimony of the only eyewitness to her alleged hitting of a student — the student himself — violated her constitutional right to confront the witnesses against her.”

The court said that nothing in the record indicated that there was a “compelling competing interest” that warranted the teacher’s being excluded from that portion of the hearing and the record was silent as to the basis for the teacher’s exclusion.

Further, the Appellate Division noted that there was no finding that teacher's presence would cause trauma to the student or substantially interfere with his ability to testify.

With respect to another argument advanced by the teacher -- in addition to her constitutional right she had an absolute right to confront witnesses under Education Law §3020-a – the Appellate Division ruled that “she waived that argument by failing to object on the record to her exclusion from the hearing, but had she so objected the argument would have been rejected as the Appellate Division observed that “In any event, there is no such absolute right under §3020-a.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_03432.htm

Statewide program to reward highest performing teachers and help improve classroom performance announced by Governor Cuomo

noreply@blogger.com (The Public Employment Law Press) — Tue, 21 May 2013 00:05:00 +0000

Statewide program to reward highest performing teachers and help improve classroom performance announced by Governor Cuomo
Source: Office of the Governor

Governor Andrew M. Cuomo predicted that New York State’s Master Teacher Program for Teachers will encourage “the best and brightest to stay in education and mentor other teachers.”

Recruiting and retaining quality educators in mathematics and science was among the recommendations made by the new NY Education Reform Commission in its Preliminary Action Plan presented to the Governor in January.

The NYS Master Teacher Program was formed with a partnership between the State University of New York and Jim Simons’ Math for America Program. High-performing secondary science and mathematics (STEM) teachers who make a commitment to mentor other teachers will receive $15,000 annually over four years.

An initial group of 250 STEM teachers will be selected from Mid-Hudson, North Country, Central New York and Western New York in Fall 2013; the program will launch in the remaining 6 regions in Spring 2014. The SUNY campuses hosting the first four groups of master teachers include SUNY Plattsburgh, Buffalo State, SUNY New Paltz and SUNY Cortland.

The NYS Master Teacher Program will be managed by SUNY with technical assistance provided throughout the first phase of implementation by Math for America, a successful program currently operating in New York City and other major cities. The Master Teacher program will be based at and hosted by higher education institutions in each of the 10 regional economic development regions.

Selected master teachers will engage in peer mentoring, attend and create intensive content-oriented development opportunities throughout the academic year. Master teachers will also work closely with pre-service and early career fellows to develop future world-class educators.

Eligible teachers must be ranked “highly effective,” have a minimum of 4 years teaching experience, hold a NYS teaching certification and have their primary teaching responsibilities be in the areas of math and science in grades six through twelve.

Applications will be available on July 1^st and due by August 1^st. The first round of Master Teachers will be announced on September 1^st.

Audits reports issued by New York State Comptroller Thomas P. DiNapoli

noreply@blogger.com (The Public Employment Law Press) — Mon, 20 May 2013 19:30:00 +0000

Audits reports issued by New York State Comptroller Thomas P. DiNapoli

New York State Comptroller Thomas P. DiNapoli announced today the following audits have been issued:

Department of Health, Excessive Medicaid Payments for Services to Recipients Receiving Medicare Benefits (Follow-Up) (2012-F-29)
An initial audit report, issued in September 2010, examined whether DOH was correctly paying claims for services to Medicaid recipients who also had health insurance through Medicare. Auditors identified about $600 million in Medicaid payments that could have been avoided had DOH taken more comprehensive and proactive steps to administer Medicaid reimbursements for services provided to dual eligible individuals. In the audit just released, auditors found DOH and Office of the Medicaid Inspector General officials have made progress in correcting the problems identified in the initial report. All three prior audit recommendations have been partially implemented.

New York State Thruway Authority, Inspecting Highway Bridges and Repairing Defects (2012-S-33)
NYSTA is responsible for inspecting its bridges and repairing any defects found during inspections. If a serious (“red flag”) structural defect is identified during an inspection, NYSTA must notify the New York State Department of Transportation (DOT) within one week. NYSTA has six weeks to take appropriate action. In addition, NYSTA must provide DOT with the written determinations from bridge inspections within 60 days. Auditors found the authority repairs defects identified during inspections. However, highway bridges were not always inspected timely and DOT was not always notified of red flags within one week, as required.

Rochester-Genesee Regional Transportation Authority, Real Estate Portfolio (2012-S-90)
The Rochester-Genesee Regional Transportation Authority provides public transportation services in Monroe, Genesee, Livingston, Orleans, Wayne, Wyoming and Seneca counties. State law requires each authority to maintain adequate inventory controls for its property and report annually on all property held. It also requires authorities to determine which property shall be disposed of and transfer or dispose of such property as promptly as possible. Auditors found the authority has accounted for all of its property holdings and established a value for them. However, it owns two properties that have been identified as excess holdings for more than 14 years. Additionally, the authority did not accurately report its property holdings during the three years ended March 31, 2012.

Department of Environmental Conservation, Pollution Testing on Exhaust Emissions from Heavy Duty Diesel Vehicles (Follow-Up) (2013-F-3)
The initial audit report, issued in March 2010, examined whether DEC adequately fulfilled its testing program responsibilities for exhaust emissions. Auditors found DEC generally fulfilled its responsibilities but could improve by maintaining critical performance data and coordinating with DMV and DOT to ensure such data was maintained for all aspects of the program. Auditors also questioned whether DEC's coverage of inspection facilities was adequate. In a follow-up report, auditors found DEC officials have made progress addressing the issues identified in the initial report. Of the 12 prior audit recommendations four were implemented, five were partially implemented, and three were not implemented.

State University of New York, Fuller Road Management Corp., College of Nanoscale Science and Engineering - Network Security Controls (2012-S-28)
The college has a number of business relationships with both public and private organizations. As part of these relationships, the college facilitates the management and processing of financial, legal, research, and numerous other types of data. The New York Office of Cyber Security’s Information Security Policy defines a set of minimum security requirements that are considered best practices for all state entities, including SUNY campuses. Auditors found that in addition to the security measures established by the university, the college has implemented its own controls that protect the security of systems and data.

Department of Agriculture and Markets, Disposal of Electronic Devices (2012-S-70)
State policy requires all state agencies to establish formal procedures to address the risk that personal, private or sensitive information may be improperly disclosed. One way information can be compromised is through disposal of electronic devices. Auditors found that 15 of the 132 electronic devices readied for surplus by the agency still contained data, even though the department had certified that all memory devices had been removed. One of the hard drives contained personal, private and sensitive information related to an employee. The printer hard drive and cameras also contained retrievable data, and the cell phones had not been programmed back to their original manufacturer settings.

Capital District Transportation Authority, Real Estate Portfolio (2012-S-91)
The authority’s primary responsibility is the management of the capital region’s bus services. State law requires the authority to report its real property holdings, listings of properties purchased or sold and its sale/lease procedures annually. The authority has a real estate portfolio that consists of nine properties/facilities. In connection with this portfolio, the authority reported that it has entered into 23 leases that generate about $808,000 annually. Auditors found the authority’s annual report for 2011-2012 omitted three properties. In addition, the three properties were not disclosed on the authority website and the report that was available on the website was not dated. The authority also could not document that it achieved fair market value for the properties.

Department of Transportation, Collection of Lease and Permit Revenues (2012-S-6)
DOT has land that it does not use continuously. Interested parties can pay a fee for a permit to use such land temporarily. Auditors found DOT is not effectively collecting all unpaid lease and permit fees. As of May 2012, DOT was owed $6 million in lease and permit revenues, including $2.4 million between two and six years past due and another $1.4 million at least six years past due. In total, 195 permits were more than 30 days past due. Of 45 sampled permits which had outstanding balances, no action was taken on eight. These eight permits had a total of $417,000 outstanding at the time of the audit.

Statewide Travel Audits
As part of a statewide initiative to determine whether the use of travel money by selected government employees was appropriate, auditors looked at travel expenses for the highest-cost travelers in the state for the following state entity:

State University of New York, College at Plattsburgh - Selected Employee Travel Expenses (2012-S-141)
Auditors examined the travel costs of two college employees with $194,805 in travel costs. Most of the expenses examined were appropriate. However, one faculty member charged the College for $708 in expenses that were not related to official business and used his travel card for $177 of other inappropriate expenses.

For other recent audits, including those on travel, go to: http://www.osc.state.ny.us/audits/auditDateList.htm

An appointing authority’s threatening to take adverse personnel action against an employee that it has a legal right to undertake does not constitute duress

noreply@blogger.com (The Public Employment Law Press) — Mon, 20 May 2013 11:00:00 +0000

An appointing authority’s threatening to take adverse personnel action against an employee that it has a legal right to undertake does not constitute duress

2013 NY Slip Op 03252, Appellate Division, Fourth Department

Supreme Court determined that the resignation of a tenured teacher [Educator] formerly employed by the school district, "was involuntarily submitted as a result of fraud, coercion and duress" and directed Educator’s reinstatement with back pay and benefits.”

The school district appealed and the Appellate Division reversed the Supreme Court’s decision, indicating that further consideration and evaluation of Educator’s allegations of duress by the Supreme Court was required.

Citing Gould v Board of Educ. of Sewanhaka Cent. High Sch. Dist., 81 NY2d 446, the Appellate Division said that as a general rule "A resignation under coercion or duress is not a voluntary act and may be nullified."

In contrast, the Appellate Division, citing Rychlick v Coughlin, 99 AD2d 863, affd. 63 NY2d 643, explained that "it has consistently been held that a threat to do that which one has the legal right to do does not constitute duress."

Stated in the alternative, as the Court of Appeals held in Abramovich v Board of Educ. of Cent. Sch. Dist. No. 1 of Towns of Brookhaven & Smithtown, 46 NY2d 450, motion to reargue denied 46 NY2d 1076, cert denied 444 US 845, "[a] person's resignation may not be considered to be obtained under duress unless the employer threatened to take action which it had no right to take.”

Further, said the Appellate Division, under "appropriate circumstances . . . a tenured teacher may, as part of a stipulation in settlement of a disciplinary proceeding brought against him [or her], waive his or her continued right to the protections afforded by §3020-a of the Education Law" provided that such a settlement is “voluntarily and knowingly made” in contrast to having been made "lightly, inadvertently, inadvisedly or improvidently….”

The Appellate Division ruled that under the circumstances Supreme Court should conducted a trial "to resolve the factual issue raised by the pleadings and affidavits concerning [Educator’s] allegations of duress and to make appropriate findings of fact before proceeding any further" and remanded the case to Supreme Court for that purpose.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03252.htm

State Comptroller reports a returned 10.38 % on for the State’s pension fund Investments in FY 2013, currently valued at an all time high of $160 billion

noreply@blogger.com (The Public Employment Law Press) — Sun, 19 May 2013 11:00:00 +0000

State Comptroller reports a returned 10.38 % on for the State’s pension fund Investments in FY 2013, currently valued at an all time high of $160 billion

On May 13, 2013 New York State’s Comptroller Thomas P. DiNapoli announced that the New York State Common Retirement Fund (Fund) was valued at an estimated $160.4 billion and earned an estimated 10.38 percent rate of return on its investments for the fiscal year ending March 31, 2013.

“The New York State Common Retirement Fund has reached a milestone,” DiNapoli said. “The Fund ended the fiscal year at an estimated $160.4 billion, an all-time high, and it remains well-positioned for growth as the financial markets continue to gain strength. Fiscal year 2014-2015 will be the final year that employer contribution rates will reflect the market loss of 2008-2009.”

Returns for the Fund’s asset classes were:

Domestic Equities returned 14.48 percent (at 36 percent of the Fund’s total investments)
Fixed Income returned 4.87 percent (28.2 percent)
Non-US Equities returned 9.47 percent (14.1 percent)
Private Equity returned 11.75 percent (8.6 percent)
Real Estate returned 11.08 percent (6.8 percent)
Global Equities returned 13.88 percent (2.9 percent)
Absolute Return Strategies returned 7.95 percent (3.2 percent)
Opportunistic Alternatives returned 7.89 percent (0.2 percent)

The Fund is the third-largest public pension fund in the country and remains one of the nation’s best-managed and best-funded pension plans. In February, Funston Advisory Services completed an independent review of the Fund that found it is well-run, operates with an industry-leading level of transparency and invests effectively on behalf of its members.

The New York State and Local Retirement System provides benefits to over one million state and local government employees, retirees and beneficiaries. Over the last 20 years, 82 percent of the cost of benefits have been funded from investment returns.

Click here for prior year returns.

NYPPL's Decision of the Week for the Week ending May 18, 2013 - Allegations of unlawful racial discrimination

noreply@blogger.com (The Public Employment Law Press) — Sat, 18 May 2013 11:22:00 +0000

NYPPL's Decision of the Week
For the Week Ending May 18, 2013

Allegations of unlawful racial discrimination

This action was brought by the United States Department of Justice pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seg. and alleged that hiring of New York City firefighters was tainted by unlawful racial discrimination and that the New York City Fire Department’s employment procedures for screening and selecting entry-level firefighters had an unjustified disparate impact on black and Hispanic applicants.

The principal issues in this appeal were [1] whether summary judgment was properly entered against the City on a claim of intentional discrimination, [2] whether claims against the City’s Mayor and former Fire Commissioner were properly dismissed, [3] whether an injunction, based both on the finding of intentional discrimination and an unchallenged finding of disparate impact in entry-level examinations, is too broad, and [4] whether, in the event of a remand, the case, or some portion of it, should be reassigned to another district judge.

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2011

Heard: June 26, 2012 Decided: May 14, 2013

Docket No. 11-5113-cv(L), 12-491-cv(XAP)

- - - - - - - - - - - - - - - - - - - - -

UNITED STATES OF AMERICA, Plaintiff-Appellee, THE VULCAN SOCIETY, INC., MARCUS HAYWOOD, CANDIDO NUNEZ, ROGER GREGG, Intervenors-Plaintiffs-Appellees-Cross-Appellants

CITY OF NEW YORK, MICHAEL BLOOMBERG MAYOR, and NICHOLAS SCOPPETTA, NEW YORK FIRE COMMISSIONER, in their individual and official capacities, Defendants-Appellants-Cross-Appellees, NEW YORK CITY DEPARTMENT OF CITYWIDE ADMINISTRATIVE SERVICE, NEW YORK CITY FIRE DEPARTMENT, Defendants.

Before: NEWMAN, WINTER, and POOLER, Circuit Judges

Appeal by the City of New York, Mayor Michael Bloomberg, and former Fire Commissioner Nicholas Scoppetta from the December 8, 2011, order of the United States District Court for the Eastern District of New York (Nicholas G. Garaufis, District Judge), issuing an injunction against the City with respect to the hiring of entry-level firefighters, and a cross-appeal by the Intervenors from the February 1, 2012, partial final judgment dismissing federal and state law claims against Mayor Bloomberg and former Fire Commissioner Scoppetta.

The City’s appeal also seeks review of the January 13, 2010, order granting the Intervenors summary judgment on their disparate treatment claim, which alleged intentional discrimination, and, on the appeal from the injunction, seeks reassignment of the case to a different district judge.

Summary judgment on the disparate treatment claim against the City is vacated; dismissal of the federal claims against Mayor Bloomberg is affirmed; dismissal of the state law claims against Mayor Bloomberg and Commissioner Scoppetta is affirmed; dismissal of the federal law claims against Commissioner Scoppetta is vacated; the injunction is modified, and, as modified, is affirmed; and the bench trial on the liability phase of the discriminatory treatment claim against the City is reassigned to a different district judge.

Affirmed in part, vacated in part, and remanded.

[Judge Pooler dissents in part with a separate opinion.]

The full text of the majority’s 59-page opinion, together with the 23-page dissenting opinion of Judge Pooler, is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/155a2259-8686-4d25-b6fc-6a56bd4db3e0/2/doc/11-5113_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/155a2259-8686-4d25-b6fc-6a56bd4db3e0/2/hilite/

The provisions in a collective bargaining agreement that are otherwise controlling may be waived if the waiver is “knowing and voluntarily” made

noreply@blogger.com (The Public Employment Law Press) — Fri, 17 May 2013 11:00:00 +0000

The provisions in a collective bargaining agreement that are otherwise controlling may be waived if the waiver is “knowing and voluntarily” made

2013 NY Slip Op 03251, Appellate Division, Fourth Department

In September 2006 an individual [Educator] was hired as a probationary teacher by the school district. At the end of the three-year probationary period, Educator was notified that he would not be recommended for tenure by the Superintendent. In lieu of termination, however, the school district, the Educator and the Teacher Association entered into a Juul agreement,* which extended the probationary period for one year.

In Juul the court held that agreements to extend probationary periods are valid and enforceable when found to be a "knowing and voluntary waiver of the protections afforded by the Education Law."

When the agreement ended, the parties entered into a second Juul agreement that extended Educator's probationary period for a fifth year and in exchange for this extension the Teacher Association "waive[d] any right it may have to pursue a grievance under the collective bargaining agreement [CBA]” relative to the deferral of the Superintendent's tenure recommendation, [or] the termination of [Educator’s] employment."

As the end of his fifth probationary year approached, Educator was informed by the Superintendent that he would not be recommended for tenure and that Educator’s appointment as a probationary teacher with the school district would end on a specified date.

The Association filed a grievance on behalf of Educator contesting his termination under various provisions of the CBA. The school district denied the grievance and the Association served a demand for arbitration.

The school district filed a petition in Supreme Court seeking a permanent stay of the arbitration. The court, agreeing with the school district that a valid agreement to arbitrate this particular dispute no longer existed, granted the school district’s petition.

The Appellate Division affirmed the lower court’s ruling.

The court explained that there was not dispute that the arbitration of the claim with respect to the subject matter at issue is authorized under the Taylor Law. Here, however, in accordance with the applicable two-step inquiry to be made by the courts in such situations, it must next be determined whether "such authority was in fact exercised and whether the parties did agree by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration"

It was also undisputed that, absent the second Juul agreement, Educator’s termination would be subject to the grievance and arbitration procedures contained in the CBA. Rejecting the Association’s argument to the contrary, the Appellate Division concluded that the second Juul agreement “clearly manifested an intent to exclude the subject matter of [Educator’s] termination, including the just cause, teacher improvement and code of ethics grounds advanced by the Association, from the provisions of the CBA relating to grievances and arbitration.”

Similarly, an employee of the State as the employer in the Classified Service faced with termination for not satisfactorily completing his or her probationary period may be offered the opportunity to serve a second probationary position in accordance with the provision of 4 NYCRR 4.5 [b] [5] [ii]). Many local civil service commissions have adopted a similar rule.

However this provision requires that the extended probationary term to be served in a different assignment.

This last point is illustrated by the decision in Civil Serv. Employees Ass'n, Inc., Local No. 1000, AFSCME AFL-CIO, Oxford Veterans' Home Local No. 305 v. Venugopalan, 228 A.D.2d 767. In Venugopalan a cook appointed to the position of chief cook and who was required to serve a probationary appointment of from 26 to 52 weeks. When the employee’s 52 week probationary period ended it was determined that his probationary period would be extended for an additional 12 to 24 weeks rather than reinstate him to the cook position.

The court ruled that this second probationary period was “unauthorized” as there was no change in the individual’s “assignment” and thus his appointment as Chief Cook “ripened into a permanent appointment upon his retention in the position beyond the 52-week period of probation.”

* Juul v Board of Educ. of Hempstead School Dist. No.1, Hempstead, 76 AD2d 837, affd 55 NY2d 648

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03251.htm

An employee’s satisfying the employer’s residency requirement is critical to his or her continuation in employment

noreply@blogger.com (The Public Employment Law Press) — Thu, 16 May 2013 11:00:00 +0000

An employee’s satisfying the employer’s residency requirement is critical to his or her continuation in employment
2013 NY Slip Op 03230, Appellate Division, Fourth Department

The City of Niagara Falls’ Local Law No. 7 requires City employees to establish and maintain residency within the City throughout the term of their employment. "Residency" for the purposes of this action was defined as "the actual principal place of residence of an individual, where he or she normally sleeps; normally maintains personal and household effects; the place listed as an address on voter registration; and the place listed as his or her address for driver's license and motor vehicle registration, if any."*

The City determined that one of its employees [Petitioner] principally resided outside the City in the Town of Niagara. Concluding that Petitioner did not comply with its residency policy, the City terminated her employment.

Petitioner challenged the City’s decision. Supreme Court granted her petition and directed the City to reinstate her to her former position. The Appellate Division disagreed with the Supreme Court’s ruling and vacated its decision.

The Appellate Division found that the evidence relied upon by the City was sufficient to establish that Petitioner's "actual principal place of residence" was in the Town of Niagara [Niagara] and thus outside the city limits of the City of Niagara Falls.

The evidence presented to the City included an investigative report indicating that Petitioner resided at the Niagara residence, the address of the Niagara residence was listed on Petitioner's joint tax return with her husband, Petitioner's signature appeared on a recent mortgage application for the Niagara residence, Petitioner's husband and children resided at the Niagara residence and Petitioner’s children attend school in the Niagara-Wheatfield School District.

In addition, said the Appellate Division, “a surveillance company observed Petitioner on multiple occasions driving to work from the Niagara residence early in the morning and driving from work to the Niagara residence at the end of the work day, "whereupon she would retrieve the mail and park in the garage."

Petitioner had testified that she resided at a City address and that the City address was listed on various documents, including her voter registration records and her driver's license. Notwithstanding such testimony, the Appellate Division concluded that such "evidence was not so overwhelming as to support the [Supreme] court's determination granting [her] petition."

Citing Beck-Nichols v Bianco, 20 N.Y.3d 540,** a case involving a school district employee’s failure to comply with the district’s residence requirement, the Appellate Division said that under the "extremely deferential standard" of review applicable in Petitioner’s case, it concluded that the City's determination that Petitioner principally resides outside the City is not “without foundation in fact,” and thus the City had "rationally concluded that [Petitioner] did not comply with the residency policy."

The court then reversed Supreme Court's decision "on the law" and the dismissed the City's former employee’s petition.

* The Appellate Division noted that this “definition [of residence] is akin to, if not synonymous with, the legal concept of ‘domicile,’ i.e., ‘living in [a] locality with intent to make it a fixed and permanent home.’”

** NYPPL’s summary of Beck-Nichols is posted on the Internet at: http://publicpersonnellaw.blogspot.com/2013/02/court-of-appeals-holds-that-residency.html

The City of Niagara Falls decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03230.htm

Where there is broad arbitration clause in the collective bargaining agreement, the arbitrator rather than the court is to determine if the subject of the dispute is arbitrable

noreply@blogger.com (The Public Employment Law Press) — Wed, 15 May 2013 11:00:00 +0000

Where there is broad arbitration clause in the collective bargaining agreement, the arbitrator rather than the court is to determine if the subject of the dispute is arbitrable

Ontario County v County Sheriff's Unit 7850-01, CSEA, Local 1000, AFSCME, AFL-CIO), 2013 NY Slip Op 03204, Appellate Division, Fourth Department

The Collective Bargaining Agreement [CBA] between Ontario County and the Ontario County Sheriff's Unit 7850-01 provided that disputes over the meaning or application of the CBA were initially required to be submitted through the contract's grievance process. In the event the employee was "not satisfied" with the result obtained through that process, the Unit could submit the matter to arbitration .

The Ontario County Sheriff's Unit 7850-01 [Unit] filed grievances on behalf of two correction officers whose request for a shift exchange was denied. Contending that the denial "[v]iolated or [i]nvolved" the clause in the CBA that addressed "time exchanged between employees," the Unit informed County of its intent to seek arbitration.

The County thereupon filed a petition in Supreme Court pursuant to CPLR Article 75 to stay arbitration and the Unit "cross-moved" to compel arbitration.

Supreme Court denied the County’s petition and granted the Unit’s cross motion.

The Appellate Division affirmed the Supreme Court’s ruling, noting that “A grievance may be submitted to arbitration only where the parties agree to arbitrate that kind of dispute, and where it is lawful for them to do so." In this instance,” said the court, “the parties do not challenge the lawfulness of arbitrating the instant dispute and, instead, [the County contends] that there is no valid agreement to arbitrate the grievances at issue inasmuch as the CBA did not contemplate shift exchanges."

The Appellate Division rejected the County’s argument, explaining that in determining whether the parties agreed to arbitrate the dispute at issue a court’s review “is limited to the language of the grievance and the demand for arbitration, as well as to the reasonable inferences that may be drawn therefrom"

In this instance, said the court, there is “a broad arbitration clause and a reasonable relationship between the subject matter of the dispute and the general subject matter of the parties.” Accordingly, the court decided that the was arbitrable and it was left to the arbitrator to make “a more exacting interpretation of the precise scope of the substantive provisions of the [CBA], and whether the subject matter of the dispute fits within them.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03204.htm

Governor Cuomo's financial restructuring proposal to assist distressed local governments

noreply@blogger.com (The Public Employment Law Press) — Tue, 14 May 2013 19:32:00 +0000

Governor Cuomo's financial restructuring proposal to assist distressed local governments

On May 14, 2013, Governor Andrew M. Cuomo issued a proposal to create a Financial Restructuring Board to help distressed local governments manage their finances. The proposal includes an alternative binding arbitration process that municipalities and unions could voluntarily opt for to resolve contract issues in an expedited procedure.

In the words of the Governor: "Growing retirement costs, declining populations, decreasing property values, and the recent fiscal crisis have all contributed to the difficult financial issues facing localities today …The Financial Restructuring Board will bring together state and local officials to help localities make tough decisions and solve this crisis now instead of kicking the can down the road."

More money is not the solution to help local governments solve their fiscal issues said the Governor. “The State's existing Aid and Incentives for Municipalities (AIM) program does not reflect local government need or performance, and already constitutes a large percentage of the budgets of New York's largest cities (outside of NYC)”

The proposal to help fiscally distressed municipalities includes the following elements:

Financial Restructuring Board: The Board would include the State Budget Director, Secretary of State, Attorney General, Comptroller, and one private sector restructuring professional. The Budget Director would establish standards to determine which local governments qualify as fiscally distressed. Fiscally distressed local governments would be able to request the assistance of the Board, and work together to identify a specific restructuring plan.

Implementing Restructuring Plan: The 2013-14 Budget includes up to $80 million to assist local governments with reorganization plans. Recommendations of the Board would be binding upon any municipality that accepts funding. The Board may require development of multi-year financial plans, functional consolidation, mergers, shared services, fewer elected officials, and other measures.

The Board would also serve as a binding arbitration panel: The Board would provide an alternative to the binding arbitration process for police, fire, or deputy sheriff unions if municipalities and unions agree. The Board would render an arbitration ruling within 9 months.

Employee terminated following a disciplinary hearing after receiving counseling memoranda regarding serious and specific deficiencies in her job performance

noreply@blogger.com (The Public Employment Law Press) — Tue, 14 May 2013 14:30:00 +0000

Employee terminated following a disciplinary hearing after receiving counseling memoranda regarding serious and specific deficiencies in her job performance

Kuznia v Adams, 2013 NY Slip Op 03369, Appellate Division, Third Department

An individual [Petitioner] commenced her employment with the County Probation Department in 1979 and in 2004 was named as the Department's deputy director. When the Department’s director retired, Petitioner “effectively was in charge of the Department” until a new director was named in August 2010.

Although prior to serving as the Department's deputy director Petitioner had consistently received positive performance evaluations,* in March 2010 the County Administrator sent Petitioner a "letter of counseling" raising a number of concerns regarding her leadership, supervisory and time-management skills. Petitioner was encouraged to "immediately make every effort to improve [her] management skills" and was warned that her failure to do so could result in a loss of her employment.

In October 2010, Petitioner received a second counseling notification — this time in the form of a memorandum from the newly appointed director. The director noted, among other things, Petitioner's failure to timely submit various state-mandated reports and surveys to the Department's oversight agency.

Subsequently it was found that there were significant past deficiencies and omissions in the operation of the Department during Petitioner's tenure as deputy director and was served with disciplinary charges in March 2011 pursuant to Civil Service Law §75 alleging various acts of misconduct. The Hearing Officer sustained the bulk of the charges and specifications filed against Petitioner and recommended Petitioner's "dismissal from service [as] the only viable solution."

The County Administrator adopted the Hearing Officer's findings and recommendation and terminated Petitioner’s employment. Petitioner appealed, challenging the County Administrator’s decision and asked the court to direct her reinstatement as deputy director of the Department with back pay.

The Appellate Division affirmed the County Administrator’s determination, explaining that "[T]he standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence in the record as a whole.”

The Appellate Division noted that [1] Credibility determinations solely within the province of the Hearing Officer and that it may neither substitute its own judgment for that of the Hearing Officer nor weigh the evidence presented and [2] a finding of incompetence only requires evidence of some dereliction or neglect of duty.

As to the issue of penalty, the Appellate Division said that it was “well settled” that it would set aside the penalty imposed "only if it is so disproportionate as to be shocking to one's sense of fairness."

Despite the Appellate Division's considering Petitioner's many years of service and her prior positive performance evaluations, the court said that it did not find the penalty of termination to be shocking to its sense of fairness, explaining that in this instance “the record reflects that although Petitioner twice was warned regarding serious and specific deficiencies in her job performance, she continued to exercise poor professional judgment with respect to, among other things, the management, training and supervision of [Department personnel].

Further said the court, “The record … illustrates that Petitioner's neglect of her duties — particularly with respect to her failure to implement certain policies and/or comply with mandated reporting requirements — not only created what [Department’s director] aptly described as ‘a huge public safety issue,’ but also exposed the County to liability.”

* According to the decision, written performance evaluations of the Petitioner ceased after 2004 because the then County Administrator “preferred to personally conduct yearly evaluations in his office.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03369.htm

Internet search engine focused on job opportunities

noreply@blogger.com (The Public Employment Law Press) — Tue, 14 May 2013 11:30:00 +0000

Internet search engine focused on job opportunities

On the Internet at: www.careerjet.com

Careerjet is a free employment opportunity search engine available to job seekers and offers users the ability to access jobs opportunities published on some 69,000 web sites. Careerjet indexes job descriptions from a large number of sources "around the web." The Careerjet's job search engine network encompasses over 90 countries, featuring separate interfaces that are translated into 28 languages.

Job seekers can search across these resources for positions in which they may be interested and once found, click on the link provided to get transferred to the original advertisement for specific information about the position[s] available.

Searching can be done using locations and other keywords such as "Attorney, Detroit" or "Human Resources Director, Los Angeles."

As examples, the two Careerjet posting shown below were dated May 13, 2013:

Staff Attorney [RFP-17]

ACLU

Staff Attorney, Equality Center Voting Rights Program [CE-04] American Civil Liberties Union Foundation Legal Department, New York. The American Civil Liberties Union Foundation (ACLU), with now more than 500,000 members, was founded in 1920....

Director of Human Resources

City of Richmond

Job Title: Director of Human Resources Closing Date/Time: Continuous Salary: $153,875.00 Annually Job Type:Full-Time Location:City Hall, 900 East Broad Street, Richmond, Virginia .....

Professions and employment areas currently listed by Careerjet include:

Accounting - Auditing
Aerospace - Defence
Agriculture - Forestry - Fishing
Apparel - Fashion - Textile
Architecture - Building - Construction
Arts - Design - Entertainment
Automotive - Motor Vehicles
Banking - Financial Services
Charities - Not for profit
Consultancy
Customer Service - Call Centers
Education - Training
Electronics - Robotics
Engineering
Food Processing

Health Care
Human Resources
Information Technology - Telecoms
Insurance
Law Enforcement - Security
Legal - Tax
Management - Executive
Manufacturing - Maintenance
Maritime - Shipbuilding - Boating
Marketing - Public Relations
Media - Advertising
Oil - Gas - Mining
Personal Care
Public Sector
Publishing - Printing

Purchasing
Quality Assurance
Real Estate
Restaurants - Food Service
Retail - Wholesale
Sales
Science - Research - Development
Secretarial - PAs - Administration
Social Care
Sports - Leisure - Recreation
Steels - Metals
Tourism - Travel - Hospitality
Translations
Transportation - Logistics
Wood - Paper - Furniture

Users may also post their resume and, in addition, create "job alerts" on Careerjet.

The State Commission on Public Integrity’s investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a Notice of Reasonable Cause.

noreply@blogger.com (The Public Employment Law Press) — Mon, 13 May 2013 11:00:00 +0000

The State Commission on Public Integrity’s investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a Notice of Reasonable Cause.

O'Connor v Ginsberg, 2013 NY Slip Op 03363, Appellate Division, Third Department

In 2009, the Commission on Public Integrity notified the then President and Chief Executive Officer of the State University of New York Research Foundation [CEO] that it had received information indicating that he may have violated Public Officers Law §74 (3) (d), (f) and (h). The information received by the Commission alleged that he had secured employment for an individual "for which she was not qualified and for which she did little or no work," and had given her privileges that he did not confer on the other Research Foundation employees.*

During the course of its investigation the Commission made several attempts to secure the CEO’s sworn testimony concerning these allegations on a voluntary basis. These efforts were unsuccessful and the Commission issued a subpoena requiring the CEO to appear before it. This resulted in the parties entering into an agreement whereby “in exchange for the Commission's withdrawal of the subpoena, [the CEO] would appear voluntarily for a sworn interview on a date certain. The agreement also provided that the CEO would be given an opportunity to provide an unsworn statement or explanation concerning the matters under investigation.

After the CEO failed to appear on the date scheduled the Commission issued a Notice of Reasonable Cause (hereinafter NORC)** alleging that the CEO had knowingly and intentionally violated Public Officers Law §74 (3) (d), (f) and (h). The CEO’s attorney notified the Commission that the subpoena that accompanied the NORC requiring the CEO to provide testimony “informed the Commission that the subpoena was ineffective and, thus, [the CEO] would not be appearing to give testimony.”

The CEO then sought a court order “directing [the Commission] to commence an administrative hearing on the NORC on a fixed date and to appoint an independent hearing officer to preside over the hearing.” The Commission opposed the CEO’s petition and asked the court for an order compelling the CEO to comply with its subpoena.

Supreme Court dismissed the CEO’s petition, finding that he had failed to demonstrate a clear legal right to the relief sought. The court also denied Commission’s motion, concluding that the Commission's power to issue a subpoena was limited to the investigatory period preceding the issuance of the NORC. ***

The Appellate Division expressed a different view, stating that the Commission's interpretation of its regulation**** was consistent with the overall purpose and spirit of Executive Law §94, which is to "strengthen the public's trust and confidence in government through fair and just adjudicatory procedures that afford all parties due process protection and fair and just resolution of all matters."

Accordingly, said the court, its investigatory powers were not truncated upon its issuing a NORC.

The Appellate Division pointed out that “[f]ollowing the issuance of a NORC, the Commission could become aware of other potential witnesses or additional information relevant to the possible violations. Thus, construing the regulation to permit the Commission to continue its investigation, despite having issued a NORC, would best serve the underlying purposes of the statute.”

Further, interpreting the regulation as “precluding investigation into new evidence, based solely on the fact that a NORC had been issued, would clearly impede the truth seeking function of the Commission.”

The Appellate Division concluded that the Commission's investigatory powers, including its power to issue a subpoena, do not terminate upon the issuance of a NORC.

Observing that the CEO “has continually resisted efforts by the Commission to secure his testimony,” the Appellate Division opined “the Commission should not be hamstrung by [the CEO’s] tactics …. To do so would abridge the Commission's statutory power to conduct an investigation and subpoena witnesses and ultimately impede its truth seeking function.”

* Subsequently the Commission issued a second letter in January 2010, which superceded and replaced the first letter, clarifying that the alleged misconduct related to acts occurring after April 25, 2007, the effective date of legislation that deemed the Research Foundation to be a "state agency" subject to the provisions of the State Code of Ethics set forth in Public Officers Law §74.

** See Executive Law §94 former [12] [b].

*** Supreme Court agreed with the Commission and dismissed the CEO’s petition. The CEO did appeal that ruling by Supreme Court but subsequently elected not to pursue it.

**** The Appellate Division pointed out that the interpretation given to a regulation by the agency which promulgated it and is responsible for its administration is entitled to deference and should be upheld if not irrational or unreasonable, citing Transitional Services v NYS Office of Mental Hygiene, 13 NY3d 801.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03363.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

noreply@blogger.com (The Public Employment Law Press) — Sun, 12 May 2013 17:00:00 +0000

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending May 12, 2013 [Click on text highlighted in bold to access the full report]

DiNapoli: IDA Performance Improves, But Concerns Remain

New York’s Industrial Development Agencies (IDAs) supported nearly 4,500 projects and provided $560 million in net tax exemptions in 2011, increasing estimated job gains by almost 36,000 from the previous year, according to a report issued Tuesday by State Comptroller Thomas P. DiNapoli. DiNapoli’s sixth annual report examining the performance of the state’s IDAs found improved reporting of data but recommended that IDAs do more to objectively weigh incentives against economic benefits to communities and evaluate projects receiving tax and other breaks.

State Pension Fund Invests $568,000 In Fieldlens

New York State Comptroller Thomas P. DiNapoli announced a $568,000 investment in FieldLens, creator of a mobile and web application designed for the construction industry. The investment was made through High Peaks Venture Partners, SoftBank Capital and Contour Venture Partners. The New York State Common Retirement Fund is an investor in these funds through its In–State Private Equity Program.

DiNapoli: Empire Continuing to Overpay for Special Medical Items

New York State health insurance provider Empire BlueCross BlueShield overpaid hospitals by nearly $490,000 for special medical items such as implants, drugs and blood, including more than $77,000 to just one hospital, over a six month period, according to an audit of the New York State Health Insurance Program released Thursday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits:

the Village of Arcade;

the Town of Ballston;

the Town of Eastchester;

the Halfmoon–Waterford Fire District No. 1;

the Village of Herrings;

the Village of Lewiston;

the Village/Town of Mount Kisco;

the Town of Northampton; and,

the Town of North East.

Decision of the Week - Applying the provisions of Civil Service Law §§71, 72 and 73

noreply@blogger.com (The Public Employment Law Press) — Sat, 11 May 2013 11:00:00 +0000

NYPPL's Decision of the Week for the Week ending May 11, 2013

Applying the provisions of Civil Service Law §§71, 72 and 73

Allen v City of New York, 2013 NY Slip Op 50717(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

This decision could serve as a model explanation of the critical elements to be considered and addressed in applying the provisions of Civil Service Law §§71, 72 and 73. It is set out in its entirety below.

Supreme Court, New York County

In the Matter of the Application of Lionel Allen, Petitioner,

against

The City of New York and the New York City Department of Environmental Protection, Respondents.

102624/12

ATTORNEY FOR THE PLAINTIFF :
Firm: MARY J. O'CONNELL [General Counsel, DC-37]

ATTORNEY FOR THE RESPONDENTS

Firm: CORPORATION COUNSEL – City of New York

Alexander W. Hunter Jr., J.

The application by petitioner for an order pursuant to Article 78 of the CPLR, declaring that respondents improperly terminated petitioner pursuant to Civil Service Law §73 and failed to satisfy due process requirements for termination pursuant to Civil Service Law §71, and in the alternative, failed to satisfy due process requirements for termination pursuant to Civil Service Law §73, is granted.

As a preliminary matter, it must be noted that the Workmen's Compensation Law was enacted in 1914 as such, but the title was changed to the Workers' Compensation Law in 1978 to acknowledge the significant presence of women in the work force.

Petitioner was employed by the New York City Department of Environmental Protection ("DEP") from on or about May 13, 1989 until his termination on January 6, 2012. Petitioner worked for the DEP in the Bureau of Water Supply with the title of Watershed Maintainer. Petitioner was originally terminated under Civil Service Law §73, which was addressed in the first motion sequence of the instant proceeding. However, after the commencement of the instant proceeding, the DEP rescinded its termination of petitioner pursuant to Civil Service Law §73 and terminated him pursuant to Civil Service Law §71 by letter dated December 14, 2012. The effective date of petitioner's termination remained January 6, 2012. Thereafter, motion sequence one was withdrawn and this court so ordered a stipulation allowing the instant amended petition to be filed in order to address petitioner's termination under Civil Service Law §71.

On February 3, 2010, petitioner slipped and fell while working to deice the grounds outside the Kensico Reservoir laboratory, which resulted in injuries to his right shoulder and knees. Petitioner promptly informed his supervisor at the DEP of the accident and submitted a workers' compensation claim. Petitioner consulted his primary care physician within several days of the accident and then in March 2010 he went to see Dr. Adam Soyer ("Dr. Soyer"), an orthopedic surgeon. Although petitioner initially returned to work, he took off numerous days between March 2010 and August 2010 due to a delay in the processing of his workers' compensation authorizations for diagnostic tests and treatment. Petitioner communicated to his supervisors that the cause of his increased use of leave time was attributed to his occupational injuries. Petitioner ultimately received authorizations for an MRI and a shoulder surgery with postoperative physical therapy in September 2010 and October 2010, respectively. A second shoulder surgery was later authorized and performed on or about August 3, 2012.

By letter dated September 29, 2010, petitioner informed the DEP that he was unable to return to work due to his shoulder injury and requested workers' compensation leave as he had exhausted his sick and annual leave by that time. Petitioner attached a note from Dr. Soyer, dated September 22, 2010, recommending that petitioner remain out of work from September 27, 2010 through November 1, 2010. An undated addendum to the September 29 letter stated that petitioner's request for workers' compensation leave had been changed in accordance with a second note from Dr. Soyer, dated October 25, 2010, which recommended that petitioner remain out of work pending authorization of the shoulder surgery.

The DEP granted petitioner leave for various periods of times from September 30, 2010 through November 1, 2010. However, as a matter of policy, the DEP does not accept doctors' notes indicating an indefinite period of leave. The DEP subsequently marked petitioner "absent without leave" for every work week from November 29, 2010 through December 30, 2011. By letter dated April 18, 2011, the DEP informed petitioner that he was required to provide continued proof of disability on a monthly basis. In addition, the DEP informed petitioner that he was required to provide information regarding his medical condition and when he would be able to return to work by April 29, 2011, or the DEP would consider petitioner absent without leave and take appropriate action.

By letter dated July 27, 2011, the DEP preferred charges against petitioner in accordance with Civil Service Law §75 and scheduled an informal conference. Civil Service Law §75 provides for removal for incompetency or misconduct shown after a hearing. Petitioner did not appear at the informal conference. The DEP did not pursue this method of termination and the charges preferred against petitioner were never filed with the Office of Administrative Trials and Hearings.

By letter dated December 5, 2011, the DEP gave petitioner a notice of intended action under Civil Service Law §73. Civil Service Law §73 provides that an employee may be terminated when he is continuously absent from his position for one year or more due to a disability, "other than a disability resulting from occupational injury or disease as defined in the workmen's compensation law...."* Petitioner did not respond to this letter.

By letter dated January 6, 2012, the DEP gave petitioner a notice of termination pursuant to Civil Service Law §73, which stated that petitioner's employment with the DEP was thereby terminated because of his absence from work since November 8, 2010 due to a non-work related disability.

In January 2012, petitioner's attorney contacted the DEP to demand that it rescind petitioner's termination pursuant to Civil Service Law §73 because petitioner's absences from work were caused by an occupational injury. Petitioner would have been more properly terminated under Civil Service Law §71, which provides for reinstatement after an employee has been separated from service due to a disability caused by an occupational injury as defined in the workmen's compensation law and further entitles the employee to a leave of absence for at least one year.

In an email sent from the DEP's counsel to petitioner's counsel dated January 18, 2012, the DEP explained that it had proceeded with a non-disciplinary termination under Civil Service Law §73 in order to give petitioner the ability to be reinstated to his position after presenting medical documentation showing his fitness to return to work, which would not have been an option if petitioner was terminated under Civil Service Law §75 based on abandonment of his job. In addition, petitioner retained the same rights to reinstatement under Civil Service Law §71 and Civil Service Law §73.

After a lengthy appeal, the Workers' Compensation Board issued a notice of decision on April 12, 2012, directing petitioner's employer or insurance carrier to pay workers' compensation benefits for various past periods from December 2010 and to continue payments.

A non-probationary public employee possesses a constitutional property interest in his employment. See, Cleveland Bd. of Educ. v. Loudermill, 470 US 532 (1985); Faillace v. Port Auth. of NY & N.J., 130 AD2d 34 (1st Dept 1987). "In the context of termination from civil service employment under Civil Service Law §73, due process requires notice and some opportunity to respond.'" Matter of Hurwitz v. Perales, 81 NY2d 182, 185 (1993), citing Matter of Prue v. Hunt, 78 NY2d 364, 369 (1991). The due process requirements under Civil Service Law §71 should be at least as strict as those provided under Civil Service Law §73 as the former "affords greater procedural protections and opportunities for reinstatement." Matter of Allen v. Howe, 84 NY2d 665, 673 (1994).

This court finds that due process requires notice and some opportunity to respond before an employee is terminated from civil service employment under Civil Service Law §71.

There is no dispute that petitioner was improperly terminated under Civil Service Law §73 because his absences were due to a disability resulting from an occupational injury as defined in the workmen's compensation law. The DEP was admittedly aware all along that petitioner's injuries were occupational. The DEP belatedly realized its error and retroactively terminated petitioner under Civil Service Law §71. The DEP should not be rewarded for confusing an employee by continually changing its basis for termination from one section to another. Regardless, petitioner was improperly terminated because the DEP did not provide petitioner with a notice of intended action under Civil Service Law §71. Petitioner had no opportunity to respond to the specific charges leveled against him, which led to his termination.

The parties remaining contentions are without merit.

Accordingly, it is hereby,

ADJUDGED that the application by petitioner for an order, pursuant to Article 78 of the CPLR, declaring that respondents improperly terminated petitioner pursuant to Civil Service Law §73 and failed to satisfy due process requirements for termination pursuant to Civil Service Law §71, is granted with costs and disbursements to petitioner; and it is further

ADJUDGED and DECLARED that respondents' termination of petitioner was in violation of its duties under New York City Rules and Regulations, New York State Civil Service Law, and the New York State and United States Constitutions; and it is further

ADJUDGED that the final determination of respondent DEP, dated January 6, 2012, terminating petitioner as a Watershed Maintainer, is vacated and annulled and petitioner is reinstated to said position with any and all benefits to which he was lawfully entitled from January 6, 2012, the date of termination.

Dated: May 2, 2013

ENTER:

________________________

J.S.C.

* NYPPL Comment: Although the employee must be absent on leave pursuant to §72 continuously for period of one year or longer to trigger the appointing authority’s ability to elect to terminate the individual pursuant to §73, the appointing authority may, as an exercise of discretion, terminate an employee absent on §71 Worker’s Compensation Leave after he or she has been absent on such leave due to the same injury or disease for an “accumulative period” of one year or longer. However, neither §71 nor §72 requires the termination of the employee after he or she has been absent for the requisite minimum period of such a leave.

Educator disciplined after posting comments on an Internet social media website

noreply@blogger.com (The Public Employment Law Press) — Fri, 10 May 2013 11:00:00 +0000

Educator disciplined after posting comments on an Internet social media website

Supreme Court granted an educator’s petition to set aside the hearing officer's determination that led to the termination of her employment with the New York City Department of Education following a disciplinary hearing “to the extent of remanding the matter for the imposition of a lesser penalty.” The Appellate Division affirmed the lower court’s ruling.

According to the decision, the educator had posted comments on a social media website on the Internet alluding to a tragedy involving an unknown student at a different school. Although the court said that the comments “were clearly inappropriate,” it explained that the educator’s purpose was to “vent her frustration only to her online friends after a difficult day with her own students.”

Initially the educator denied the incident but she subsequently admitted to making the comments at the disciplinary hearing. She also acknowledged that the comments were inappropriate and offensive and repeatedly expressed remorse at having posted them.

The Hearing Officer found that the educator had engaged in a plan with her friend to mislead investigators right after the allegations surfaced. However, the Appellate Division said that Supreme Court “reasonably concluded that the educator’s actions were taken out of fear of losing her livelihood rather than as part of a premeditated plan.”

Under the circumstances, and in consideration of the educator’s not having ever before been the subject of a disciplinary action during her 15-year career and her avowing that she would never engage in a similar act again, the Appellate Division agreed with the Supreme Court’s finding that the penalty of termination was “shocking to one's sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03272.htm

Application seeking the removal of the school superintendent found fatally defective because it failed to contain the language required by the Commissioner’s regulations

noreply@blogger.com (The Public Employment Law Press) — Thu, 09 May 2013 11:00:00 +0000

Application seeking the removal of the school superintendent found fatally defective because it failed to contain the language required by the Commissioner’s regulations*
Decisions of the Commissioner of Education, Decision No. 16,479

Linda Wallace, alleging that school superintendent Randy Richards made “inaccurate, misleading and designed to intimidate voters” in connection with the adoption of a school budget, asked the Commissioner to remove Dr. Richards from his position.

The Commissioner dismissed Wallace’s application for technical reasons, explaining that Wallace's application for Dr. Richards’ removal must be denied because the notice of petition was defective.

Here the Commissioner’s regulations require that the notice accompanying a removal application specifically advise the school officer that an application is being made for his or her removal from office (see 8 NYCRR §277.1 [b]). Here, however, Wallace failed to give such notice and, instead, used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.

The Commissioner said that “A notice of petition which fails to contain the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondent.

Notwithstanding the dismissal of Wallace’s application on procedural grounds the Commissioner noted that had Wallace’s the application not been denied on procedural grounds, it would be denied on the merits.

A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer 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 Commissioner of Education.

Further, in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The record indicates that Dr. Richards “adequately explained the basis for his statements regarding the impact of a contingency budget in relation to current levels of district funding. Although Wallace may disagree with Dr. Richard’s approach, she has not demonstrated that [Dr. Richard’s] action was motivated by a wrongful purpose."

To the extent that Wallace sought a determination as to whether Dr. Richards’ actions were in the best interest of the district, the Commissioner said this aspect of the appeal must be dismissed as it is well established that the Commissioner “does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310.”

Turning to a “final” administrative matter, the Commissioner noted that Dr. Richards had requested that the Commissioner issue a certificate of good faith pursuant to Education Law §3811(1) to him. Such certification is solely for the purpose of authorizing the board to indemnify Dr. Richards for legal fees and expenses incurred in defending a proceeding arising out of the exercise of his powers or performance of duties as a school district officer.

It is appropriate to issue such certification unless it is established on the record that the requesting officer acted in bad faith. In view of the fact that Wallace’s application was dismissed on procedural grounds and there was no finding that Dr. Richards acted in bad faith, the Commissioner certified that “solely for the purpose of Education Law §3811 [Dr. Richard] appears to have acted in good faith.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16479.pdf

* See, also, Application of Stacia Kroniser, Decisions of the Commissioner of Education, Decision No. 16,469, posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/documents/d16469.pdf and the Appeal of Stacia Kroniser, Decisions of the Commissioner of Education, Decision No. 16,470, posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16470.pdf

Strange Bedfellows – How the Commissioner’s Edict on “Quiet Agreements” Aligned Teachers’ Unions and School Districts

noreply@blogger.com (The Public Employment Law Press) — Wed, 08 May 2013 11:00:00 +0000

Strange Bedfellows – How the Commissioner’s Edict on “Quiet Agreements” Aligned Teachers’ Unions and School Districts by Edward A. Trevvett, Esq.

"The New York State Education Department has managed to create quite a hullabaloo with its April 26, 2013* memo to school district and BOCES superintendents declaring void all “quiet agreements” between districts and their teachers’ unions that mitigate the use of this year’s student assessments in teachers’ APPR growth scores, particularly when the resulting teacher rating is “ineffective.” At the heart of the matter are the new Common Core student assessments that began this year, which in turn reflect on teachers’ APPR scores and performance ratings. The Common Core Standards, which have the laudable goal of making our children better prepared for college and careers, concomitantly dramatically increases the rigor of student assessments. Teachers unions and school districts expect that student assessment scores based on the new Common Core Standards will be significantly lower, at least for the first couple of years. That has led to some districts and unions to negotiate what the Commissioner of Education calls “quiet agreements” outside the APPR plans they jointly submitted to SED. The agreements set forth how the student assessments will be mitigated as a factor in a teacher’s APPR rating for the first year of the new APPR implementation. In one such “quiet agreement” entered into between the Buffalo City School District and its teachers union on January 15, 2013, the District promised not to use the first year of an ineffective rating to base the needed two years of consecutive ineffective evaluations as grounds to bring formal disciplinary charges against a tenured teacher for termination.

"That agreement between the Buffalo City School District and its teachers apparently rankled SED and resulted in its April 26 memo which states in part:

"As part of the signed certification in each APPR plan, each superintendent (or BOCES District Superintendent) and the presidents of the district’s or BOCES’ board of education and teachers’ and administrators’ union acknowledged that such plan is the sole plan for the APPR of all classroom teachers and principals in the district or BOCES. With respect to all approved APPR plans, the Department considers void any other signed agreements between and among those parties to the extent that such agreements conflict with the approved APPR plan and the requirements of Education Law § 3012-c and Subpart 30-2 of the Rules of the Board of Regents (“regulations”), and does not recognize any such agreements as part of any approved APPR plan. School districts and BOCES must implement the terms of their approved APPR plans consistent with the requirements of Education Law § 3012-c and the regulations. (emphasis added)

"In response to SED’s April 26 memo, the New York State United Teachers (NYSUT) union wrote a scathing letter to SED Commissioner John King on April 30, 2013, repudiating SED’s position that it has the authority to void agreements negotiated under the Taylor Law. In that letter, NYSUT President Richard C. Iannuzzi states:

"I am writing concerning Dr. Rafal-Baer’s April 26 memorandum to school and district superintendents.

"While SED has the authority to approve APPR plans, it has no authority, beyond that limited power, to void or to pass on the legality of any agreement negotiated under the Taylor Law. Further, SED has no authority to issue a general pronouncement about the validity of Taylor Law agreements it has not reviewed and has no legal authority to review. Accordingly, we have advised each of our locals that we will take every appropriate measure to enforce any Taylor Law agreement negotiated in good faith with its Board of Education. If a dispute arises over the legality of any such agreement, the issue will be decided by PERB or the courts, not by SED. (emphasis added)

"Dr. Rafal-Baer’s memo is an unfortunate continuation of SED’s repeated attempts to undermine Education Law 3012-c’s collective bargaining provisions. NYSUT continues to support the proper implementation of the law, but will not allow the rights of educators to be abused or the voice of educators to be silenced by SED’s attempts to take away their collective bargaining rights.

"SED’s April 26 memo has created what some would view as strange bedfellows in that many, if not most, School Superintendent and BOCES District Superintendents would wholeheartedly agree with NYSUT on this issue. Insofar as SED’s memo is concerned, the key word in its pronouncement that “the Department considers void any other signed agreements between and among those parties to the extent that such agreements conflict with the approved APPR plan . . . .” is CONFLICT. In order to meet their statutory and regulatory requirements to the Commissioner, school districts and BOCES need only confirm that the provisions of their APPR plan are being implemented as set forth and as approved by SED in accordance with Education Law Section 3012-c and Subpart 30-2 of the Commissioner's Regulations. Any side agreement on when a district or BOCES will or will not pursue disciplinary action under the new amended Section 3020-a provisions are separate and apart from the APPR plan. The agreements are really about Education Law Section 3020-a(3)(c)((i-a) and not 3012-c. Under the Section 3020-a amendments, it remains in a district’s discretion, not that of SED, to file disciplinary charges at the local level to terminate a teacher.

"In a press release also issued on April 30, the Commissioner appeared to somewhat minimize the Department’s definitive position set forth in its April 26 memo. In that press release the Commissioner indicated that while he expected “… roughly the same percentage of teachers to be identified in each performance category (Ineffective, Developing, Effective, Highly Effective) this year as last year. We have asked districts to be thoughtful in their use of the data from this first year of Common Core assessments when evaluating teacher performance and we have every confidence that they will be.” The Commissioner has failed to define or even hint at his interpretation of “thoughtful” in this high stakes context. (emphasis added)

"In a postscript to the Buffalo City School District’s “quiet agreement” with its union, The Buffalo News reported that with a $50 million state aide gun to its head, the Superintendent of the Buffalo City School District issued a written statement informing the teachers union that “The state Education Department has determined that the memorandum of understanding dated Jan. 15, 2013, between the Buffalo City School District and the Buffalo Teachers Federation is void.” Her written statement further clarifies that “The district will proceed in accordance with the department’s determination.”

"In response, the union issued its own statement saying, “As far as we’re concerned, the agreement that we reached stands, and we will take whatever action is necessary to enforce that agreement, because it was fair.” BTF President Philip Rumore further stated, “If there has to be a battle, so be it.”

"With these ongoing threats of legal challenges over testing, data and teacher evaluations as set forth by the Commissioner and quickly followed by the Teachers’ Unions – Let the Games Begin!"

====================

* NYPPL notes that on April 26, 2013 Governor Andrew M. Cuomo issued the following statement:

"The State Education Department is correct in refusing to recognize any side deals between the Buffalo's teachers union and the school district. The suggested collusion was a borderline legal and ethical fraud on our students and the Buffalo superintendent was right to affirm that no side deals will be recognized. We promised the students’ performance - they deserve it and they will have it."

Educator must serve at least 40% of his or her workday in the tenure area in which he or she claims greater seniority than others in that tenure area for the purposes of layoff

noreply@blogger.com (The Public Employment Law Press) — Tue, 07 May 2013 13:00:00 +0000

Educator must serve at least 40% of his or her workday in the tenure area in which he or she claims greater seniority than others in that tenure area for the purposes of layoff

Decisions or the Commissioner of Education, Decision 16,480

The school board granted Teacher tenure in the special education tenure area, About two years later the school board adopted a resolution abolishing two special education positions in the special education tenure area and notified Teacher that, as he was one of the least senior persons in the special education tenure area, his services were being discontinued at the end of the school year and that he would be placed on a “preferred eligibility list.”

Teacher, claiming that he was improperly terminated in violation of Education Law §§2510 and 3013 and that he was more senior than five other teachers in the special education tenure area, filed an appeal with the Commissioner seeking an annulment of the district’s determination terminating his services and reinstatement as a full-time teacher of special education, with back pay and benefits.

The school district argued that Teacher [1] failed to meet his burden of demonstrating that he was not one of the least senior teachers in the special education tenure area and [2] that he is not entitled to seniority in the special education tenure area because he did not spend at least 40% of his workday teaching in the special education tenure area.

The Commissioner said that Education Law §3013(2) provides that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure [area] of the position abolished shall be discontinued.” Further, 8 NYCRR 30-1.1(f) [Rules of the Board of Regents] defines seniority as follows: “Seniority means length of service in a designated tenure area ....”

The significant issue in Teacher’s appeal was whether Teacher was one of the two least senior teachers in the special education tenure area. Noting that “In general, seniority may be accrued in a given tenure area only if the service of the educator in such area constitutes 40% or more of the total time spent in the performance of instructional duties (8 NYCRR §30-1.1 [f] and [g])" the Commissioner ruled that Teacher "has not established that the work he performed was in the tenure area of special education."

Although Teacher did hold permanent certification in special education and was granted tenure in the special education tenure area, the record showed that Teacher never devoted at least 40% of his work time to instruction in special education. Rather, said the Commissioner, the record showed that Teacher’s assignment comprised one special education resource room class and alternative education classes in English, mathematics, social studies and global history.

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief. As Teacher failed to submit any lesson plans or any other evidence to demonstrate that he spent more than 40% of his time in the special education tenure area during any of relevant school years, the Commissioner found that Teacher “never served in the special education tenure area.”

Nor, said the Commissioner, does the prohibition contained in 8 NYCRR §30-1.9 against assigning a professional educator to devote a substantial portion of his or her time in a tenure area other than that in which he or she has acquired tenure without his or her consent apply to these facts as from the “inception of his employment by the Board Teacher never devoted a substantial portion of his time within the special education tenure area and therefore was not a professional educator entitled to the protection of 8 NYCRR §30-1.9."

The Commissioner said that he was “constrained to dismiss this appeal,” and noted that when Teacher commenced his employment with the district the board lacked the authority to offer him a tenured position as a special education teacher. He then took this opportunity to “remind [the] board of the need to follow all pertinent provisions of the Civil Service Law, Education Law §3014 and Part 30 of Rules of the Board of Regents.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/documents/d16480.pdf

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

=========================

The positions of town board member and building administrator for the local housing authority held incompatible under the circumstances

noreply@blogger.com (The Public Employment Law Press) — Tue, 07 May 2013 11:00:00 +0000

The positions of town board member and building administrator for the local housing authority held incompatible under the circumstances

Informal Opinion of the Attorney General 2013-2

A town board member was hired as a building administrator by the housing authority board members and is currently is holding both positions. The town attorney asked the Attorney General for his views concerning this appointment.

Noting that the town board is vested with the power to appoint and to removal members of the housing authority board member, the Attorney General concluded that the positions of town board member and building administrator for the Authority were incompatible.

The Attorney General explained that the tenure of the members of the housing authority board depends on the determination of the town board. Accordingly, the housing authority board may be unable to impartially supervise its employee who also serves on the town board and thus wields a portion of the town board's appointment and removal power with respect to the housing authority board. Further, opined the Attorney General, “At the least, service as both a member of the town board and housing authority employee will create the appearance of impropriety, which should be avoided to maintain public confidence in the integrity of government.”

Additionally, the Attorney General said that the recusal of the housing authority employee from town board discussion and appointment or removal of housing authority board members would not remedy the incompatibility of the positions. When considering the appointing or removing a housing authority board member who takes part in determining the salary and the terms and conditions of their town board colleague's employment, the impartiality of the remaining town board members would not be free from doubt.

In this instance the housing authority board, which hires the Authority's employees, determines their qualifications and duties, and fixes their compensation, subject to the approval of the town board, results in the housing authority board members exercising these powers over the building administrator who also serves as town board member.

The opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-2_pw.pdf

Employer held liable for employee’s failure to call for assistance when asked to do so by police officers

noreply@blogger.com (The Public Employment Law Press) — Mon, 06 May 2013 11:00:00 +0000

Employer held liable for employee’s failure to call for assistance when asked to do so by police officers

Filippo v New York City Tr. Auth., 2013 NY Slip Op 03025, Appellate Division, First Department
Jannet Velez v 2013 NY Slip Op 03025, Appellate Division, First Department

Two police officers were injured in a subway station as the result of an individual’s resisting arrest. The criminal act leading to the arrest was committed in the street in the presence of the police officers who chased the perpetrator into the subway station.

Upon entering the station the police officers, who were in plainclothes, displayed their shields and asked the station agent to “call for backup” support. The station agent was inside a locked token booth that was equipped with an Emergency Booth Communication System (EBCS) that would have enabled him to summon help by pressing a button or stepping on a pedal.

Both police offers were injured when the perpetrator put up “a fierce and protracted struggle to resist arrest.” The station agent, however, watched the struggle from his token booth and did not activate the EBCS or make any other attempt to summon help.

The police officers sued the Transit Authority on the theory is that station agent’s failure to call for help constituted negligence which was a proximate cause of their injuries. Although Supreme Court granted the Transit Authority's motion for summary judgment, finding that the station agent was under no duty to call for any assistance, the Appellate Division reversed the lower court’s ruling.

The court explained that Public Authorities Law §1212(3) imposes liability upon the Transit Authority for the negligence of its employees in the operation of the subway system and is held to a duty of ordinary care under the particular circumstances of each case.

In Crosland v New York City Tr. Auth. 68 NY2d 165, the Court of Appeals held that the Transit Authority could be held liable for the negligent failure of its employees to summon aid as they watched a gang of thugs fatally assault a passenger. The Appellate Division said that the trial court’s holding that Crosland had no application in this instance because the plaintiffs were police officers was incorrect.

Noting that General Obligations Law §11-106 gives police officers as well as firefighters, who are injured in the line of duty, “a distinct right of action against tortfeasors that cause such injuries,” the Appellate Division said that the police officer’s lawsuit was not barred by their status as police officers and the Transit Authority's liability was established at trial.

In addition, the court rejected the Transit Authority argument that the evidence did not establish that a timely response on station agent’s part would have prevented the police officer from being injured as “this argument was raised for the first time on appeal” but indicated that if it were properly before the court it “would find it unavailing.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03025.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapol

noreply@blogger.com (The Public Employment Law Press) — Sat, 04 May 2013 16:32:00 +0000

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week ending May 4, 2013 [Click on text highlighted in bold to access the full report]

Entergy Shareholders To Take Up DiNapoli Proposal On Nuclear Power Safety

New York State Comptroller Thomas P. DiNapoli Friday raised concerns with the storage of nuclear fuel at Entergy Inc.’s annual shareholder meeting in Little Rock, Ark. DiNapoli’s shareholder proposal calls for the company to implement a policy to minimize the amount of nuclear waste it stores in spent fuel pools and transfer that waste into dry cask storage.

DiNapoli: State Overtime Costs on the Rise

Overtime earnings at state agencies rose nearly 11 percent in 2012 to $529 million, escalating a trend that began in 2009, according to a report released Tuesday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: State Ends Fiscal Year in Solid Position But Challenges Remain

Despite unexpected costs from Superstorm Sandy and a weaker than expected economy, New York State ended state fiscal year 2012–13 in a stable cash position compared to recent years, according to an end of the year report released Monday by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: St. Lawrence County Needs Long–Range Financial Plan

St. Lawrence County is coping with cash flow difficulties and a sharp decline in surplus funds, according to an audit issued Thursday by State Comptroller Thomas P. DiNapoli. The audit notes that the county’s weakening fiscal health has resulted in program cuts, tax increases and a potential operating deficit.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Wednesday announced his office completed the following audits:

the Village of Dresden;

the Village of Hempstead;

the Village of Middleburgh;

the Town of Newfield;

the Town of Pulteney; and

the Village of Whitney Point.

Comptroller DiNapoli School Releases Audits

the Campbell–Savona Central School District; and,

the Maine Endwell Central School District.

Governor Como appoints Catherine Scott to serve as the State’s Inspector General

noreply@blogger.com (The Public Employment Law Press) — Fri, 03 May 2013 17:02:00 +0000

Governor Como appoints Catherine Scott to serve as the State’s Inspector General

On May 2, 2013 Governor Andrew M. Cuomo announced that he has appointed Catherine Leahy Scott to serve as the Inspector General of New York State. Ms. Scott has been serving as the Acting Inspector General since February 2013.

While Ms. Scott served as Acting Inspector General, the New York State Inspector General’s Office has had numerous significant investigations, findings and reports, including:

• The investigation of a state employee for stealing nearly one million dollars in federal government funds that were intended to be used by New York State to provide rent subsidies for low income families. This investigation resulted in the federal prosecution and conviction of this state employee.

• The investigation of improper lab practices in the Monroe County Public Safety Laboratory, which involved the destruction of key evidence in criminal cases in that region.

• An investigation which led to the indictment of the director of a Bronx not-for-profit corporation for bribery. The Inspector General’s investigation revealed the director received thousands of dollars in home improvements from contractors with whom his not-for-profit was doing state business, and who received government-funded renovation contracts intended to assist low and middle income residents.

• An investigation that found mismanagement, faulty procurement practices and security lapses at the New York State Fair. The investigation resulted in sweeping changes at the State Fair.

• In 2013 Ms. Scott trained the heads of all Executive branch agencies and authorities, as well as their chief counsels and ethics officers. Her statewide presentations provided uniform standards to the Executive branch, including codes of conduct and best practices to ensure integrity and the efficient operation of state government.

Teacher terminated after rejection constructive criticism of her ineffective teaching methods

noreply@blogger.com (The Public Employment Law Press) — Fri, 03 May 2013 11:00:00 +0000

Teacher terminated after rejection constructive criticism of her ineffective teaching methods

A tenured New York City teacher challenged her termination following a disciplinary arbitration hearing. Supreme Court dismissed her Article 75 petition and confirmed the New York City’s cross motion to confirm the arbitration award.

The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The decision notes that “Adequate evidence in the record supported the Hearing Officer's determination” that the teacher was guilty of multiple specifications charging her with failure to follow procedures and carry out normal duties, and incompetent and inefficient service during three school years.

Further, said the court, evidence in the record showed that the teacher was either unwilling or unable to implement suggestions and constructive criticism of her ineffective teaching methods.

Quoting the Pell Doctrine [Pell v Board of Education, 34 NY2d 222], the Appellate Division said that under the circumstances the penalty of termination “does not shock our sense of fairness.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_03035.htm