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Friday, October 24, 2014

An appointing authority may not ignore statutory procedures and thereby deprive public employees of the protection of the statute

An appointing authority may not ignore statutory procedures and thereby deprive public employees of the protection of the statute
Thornton v Saugerties Cent. Sch. Dist., 2014 NY Slip Op 07046, Appellate Division, Third Department

The School District’s [District] data administrator’s [Thornton] position was abolished for budgetary reasons upon the School District’s purchase of data management services from a Board of Cooperative Educational Services (BOCES). The duties of the former District data administrator were assumed by existing staff members of BOCES. When the District denied Thornton’s request to by transferred to BOCES pursuant to Civil Service Law §70(2), she be transferred to BOCES to perform her former duties.

Thornton then commenced an Article 78 proceeding seeking reinstatement to her former position and transfer to BOCES, and reinstatement of her employee benefits.

When Supreme Court dismissed the petition on the merits, finding that Thornton had no clear right to the relief requested because she was not a necessary employee within the meaning of Civil Service Law §70(2), she appealed.

The Appellate Division held that Supreme Court should have addressed the District's motion seeking dismissal of the petition as untimely and, if it was denied, permitted the District to answer before ruling on the merits. The court, accordingly, said that it would statute of limitations defense advanced by the District. 

The CPLR required Thornton to commence her Article 78 action within four months after the District's determination became final and binding upon her. However, to determine when the statute of limitations began to run, the Appellate Division said it must first address whether Civil Service Law §70(2) applies in this instance, explaining that:

1. If it does not apply, this is a common termination of public employment case and, because no administrative hearing is required and the statutory "period runs from the notice of discharge, or the effective DAte of discharge, if later." If §70(2) did not apply in this instance, Thornton’s petition was untimely.

2. If Civil Service Law §70(2) did apply in Thornton's situation, the court characterized the situation, as “more complicated” and the statute of limitations would normally run from the performance of certain obligations by the District.* The District, however, did not believe that §70(2) applied in this situation and did not perform those statutory obligations.

In this instance Civil Service Law §70(2) was triggered "[u]pon the transfer of a function" from the District to BOCES and the District’s decision to move its own data management services to BOCES constituted the "transfer of a function" within the meaning of the statute.

Accordingly, §70(2) required the District and BOCES to comply with a number of procedural steps. including the District's providing BOCES with a list of the names and titles of all District employees who were "substantially engaged in the performance of the function to be transferred” not less than 20 days before any such transfer and, in addition, to publicly post that list along with a copy of the statute. This, explained the court, would provide all District employees time to give written notice of protest to BOCES and the District of their "inclusion in or exclusion from such list" prior to the effective date of the change.

If BOCES received any such protests, it had 10 days within which to review the protest, consult with the District and notify the employee of the determination regarding such protests. That determination would be “a final administrative determination,” whereupon the District would then be required to determine which employees on the list were necessary to be transferred by considering the relevant statutory criteria as well as whether BOCES had sufficient staff to provide the transferred services. Employees not so transferred would have their names placed on a preferred list for the same or similar positions at both the District and BOCES in accordance with §§80 and 80-A of the Civil Service Law.

Noting that when analyzing the statute of limitations question the court must consider the purpose of the statute, in this instance to protect the employment rights of public employees, and the mandatory nature of the statute's procedural requirements. “Ignoring the statutory procedure” said the court, “would deprive public employees of the protection of the statute and reward public employers by giving them the advantage of a shorter statute of limitations for challenges when they fail to perform their statutory obligations. This we cannot countenance.”

Considering the series of events in Thornton’s situation, the Appellate Division concluded that her Article 78 petition was timely and the District's statute of limitations defense must be rejected. In a footnote to its decision the court indicated that “Although the statute of limitations determination is intertwined with the merits of the petition, under the procedural posture of this case, we may consider factual affidavits when addressing the statute of limitations defense even though it might not be proper to consider those affidavits to decide the merits at this time.”

* In addition, the provisions of §§80 and 80-a of the Civil Service Law would be triggered if any employee would be laid off as the result of the abolisement of a position.

The decision is posted on the Internet at:


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Thursday, October 23, 2014

A legal opinion by a municipal attorney is advisory

A legal opinion by a municipal attorney is advisory
Comptroller of the City of New York v Department of Fin. of the City of New York, 2014 NY Slip Op 24309, Supreme Court, New York County

In this special proceeding, the Comptroller of the City of New York [the Comptroller] asked Supreme Court to compel the City’s Department of Finance (DOF) to honor a subpoena served on it by the Comptroller. DOF responded by asking the court to quash the subpoena.

The Comptroller had served DOF with a subpoena seeking documents and testimony in connection with an audit that was being conducted by his office. The subpoena was accompanied by a proposed confidentiality agreement.

DOF told the Comptroller that it would not comply with the subpoena, citing an opinion of the City’s Corporation Counsel, Opinion 10-91, in which the then Corporation Counsel concluded that "the [State’s] tax secrecy laws prevent [the DOF] from producing the subpoenaed documents [involving tax information] and giving testimony with respect thereto."

The Corporation Counsel had opined in Opinion 10-91 that the City Charter, as a local law, could not satisfy the "as otherwise provided by law" exception to tax secrecy, reasoning that the relevant sections of State Law must be construed as a controlling state law and so a local law such as the City Charter could not be a "law" within the meaning of the phrase "as otherwise provided by law."

The court noted that §93(a) of the City Charter authorizes the Comptroller to advise the Mayor and City Council "on the financial condition of the [C]ity or any phase thereof and make such recommendations, comments and criticisms in regard to the operations, fiscal policies and financial transactions of the [C]ity as he or she may deem advisable in the public interest." Also, §93(c) of the Charter, in pertinent part, provides that: the Comptroller “shall be entitled to obtain access to agency records required by law to be kept confidential, other than records which are protected by the privileges for attorney-client communications, attorney work products, or material prepared for litigation, upon a representation by the comptroller that necessary and appropriate steps will be taken to protect the confidentiality of such records.”*

The court granted the Comptroller’s petition, denying DOF’s counterclaim, explaining that while DOF relies on Opinion 10-91 in asserting that it cannot turn over such returns to the Comptroller, that opinion has no precedential value.

Citing Slevin v Siegel, 65 Misc 2d 3, the court said that "[A] legal opinion by a municipal attorney is purely advisory and, right or wrong, it is the opinion of the issuing attorney."** Further, said the court, “To hold the Comptroller ‘bound by all opinions of the Corporation Counsel would . . . be unwise as a matter of public policy [and] would elevate the Corporation Counsel … to a position of supremacy among   officials,’" citing Matter of City of New York (Beame), a New York Supreme Court decision reported in the New York Law Journal dated December 3, 1970.

In support of its ruling, Supreme Court noted the decision handed down in “McCall v Barrios-Paoli, 93 NY2d 99 (1999), a case cited by the Comptroller as supporting the Comptroller's position that he should be permitted to obtain the tax information requested.” The court noted that, as dicta,*** in McCall the Court of Appeals commented "the City concedes that the State Comptroller is authorized to conduct financial audits of City agencies - - a duty similarly assigned by the City Charter to the City Comptroller."

* In addition to the ability to audit city agencies pursuant to §93(c), the Comptroller has the "power to audit and investigate all matters relating to or affecting the finances of the [C]ity, including without limitation the … receipt and expenditure of [C]ity funds . . . and to take the testimony under oath of such persons as the comptroller may deem necessary." [see New York City Charter § 93(b)]. The power to take testimony pursuant to §93(b) includes the power to subpoena documents. [see New York World's Fair 1964-1965 Corp. v Beame, 22 AD2d 611].  

** Similarly, in Matter of Nelson v New York State Civ. Serv. Commn., 46 A.D.2d 132, affd. 63 N.Y.2d 802, the Appellate Division said “In reaching this conclusion, we are not unmindful that an opinion of the Attorney-General is usually accorded great deference but we are not bound by an erroneous interpretation of law.”

*** The term “dicta” is used to describe that part of a judicial opinion that is a comment by the court that does not directly address the specifics of the case being decided but may prove helpful to the reader.

The decision is posted on the Internet at:

Wednesday, October 22, 2014

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system

Employee improperly suspended without pay beyond the period permitted by Civil Service Law §75(3) credited with member service in a public retirement system
Battisti v City of New York, 2014 NY Slip Op 07065, Appellate Division, First Department

Anthony Battisti was found guilty of misconduct after a disciplinary hearing and terminated from his employment with the New York City Police Department [NYPD]. He appealed NYPD’s determination and asked Supreme Court to [1] vacate the disciplinary action and [2] direct that NYPD “credit [him] with certain days withheld from the calculation of his service for pension purposes.”

Supreme Court transferred so much of Battisti’s petition that challenged the disciplinary determination to the Appellate Division and denied that part of Battisti’s petition that sought an order directing that he be credited with “certain days withheld from the calculation of his service for pension purposes.”

With respect to Battisti’s challenge to the disciplinary hearing proceeding, the Appellate Division held that “Substantial evidence supports the findings of the Assistant Deputy Commissioner for Trials that [Battisti] was guilty of the proffered charges,….”*

Addressing Battisti’s claims with respect his entitlement to member service credit in the retirement system, the court noted that in the course of the Battisti’ disciplinary action he was suspended without pay for a total of 99 days.

The initial 30-day suspension followed disciplinary charges that alleged that he had "knowingly associated with …. an individual reasonably believed to have engaged in criminal activity.” A second 69-day suspension without pay followed after the disciplinary charges were amended based on criminal charges filed against him as a result of an arrest in another jurisdiction.

Battisti argued that because Civil Service Law §75(3-a), as well as Administrative Code of City of NY §14-115, cap suspensions without pay of public employees awaiting hearing and determination of disciplinary charges at 30 days, he is entitled to be credited with 69 days of member service credit and thus is eligible for a retirement allowance based on his total member service.

NYPD’s answer on this point indicated that it had issued a check to Battisti reflecting its internal determination that he had been improperly suspended without pay for 39 days and was entitled to compensation for those days. This left just 60 days of suspension without pay. Further, said the Appellate Division, NYPD did not dispute the fact that all days for which a member of NYPD is paid are to be included in the calculation of time for purposes of all benefits, including pension.

The Appellate Division concluded that, assuming arguendo, that the NYPD properly suspended petitioner without pay for two 30-day periods based on distinct offenses resulting in 60 days of suspension without pay, based on NYPD's calculations it appears that Battisti had completed twenty years of creditable service as of the effective date of his termination.

Finding that NYPD had not set forth any legal basis for its subsequent internal determination to treat nine of the 39 days that had been credited to Battisti as suspensions without pay, notwithstanding the limit set by Civil Service Law §75(3-a), the Appellate Division ruled that “[a]bsent such explanation for excluding the nine days from the calculation of creditable service, the determination to deny [Battisti] a pension was arbitrary and capricious in that it was taken "without regard to the facts."

* The court said that Battisti’s “arguments concerning [a witness’s] credibility and motive to lie at the [disciplinary] hearing are beyond the review of this Court,” citing, Berenhaus v Ward, 70 NY2d 436.

The decision is posted on the Internet at:

Tuesday, October 21, 2014

Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days

Terminated employee entitled to pay and benefits for all periods of suspension without pay in excess of 30 days
Alarcon v Board of Educ. of S. Orangetown Cent. School Dist , Appellate Division, Second Judicial Department, 2014 NY Slip Op 06969. [Alarcon II]

In Alarcon I, [Alarcon v Board of Educ. of S. Orangetown Cent. School Dist., 85 AD3d 780], the Appellate Division directed the reopening of the disciplinary hearing after finding that a key witness against Alarcon recanted the testimony he gave at the disciplinary hearing.  

The court explained that the South Orangetown Central School District had adopted the findings and recommendation of the disciplinary hearing officer who found Marco Alarcon guilty of certain charges of misconduct and incompetence, and recommended that Alarcon's be dismissed from his position. However, said that Appellate Division, the hearing officer's recommendation that Alarcon be terminated from service "was largely based upon the testimony of the eyewitness," one Ramon Reyes.

After Reyes testified, but prior to the issuance of the hearing officer's report and recommendation, Reyes had recanted his testimony and, in a sworn affidavit, stated that the testimony he had given at the disciplinary hearing was false and that he gave such false testimony because his supervisor directed him to lie. 

Under the circumstances, the Appellate Division annulled the Board’s determination on the law and remitted the matter for a hearing at which Alarcon was to be given the opportunity to recall Reyes to testify and directed that the Board receive “this newly discovered evidence” and make a new determination.

A second hearing was conducted, after which the Board of Education adopted the findings and recommendation of a hearing officer who had found the Alarcon guilty of certain charges of misconduct and incompetence and recommended that he be dismissed from his position. The Board again imposed the penalty of dismissal and terminated Alarcon’s employment with the School District.

Alarcon challenged the Board’s action, which the Appellate Division addressed in instant appeal, Alarcon II.

In Alarcon II the court sustained the Board’s action and found that contrary to Alarcon’s contention, the challenged determination was:

1. Supported by substantial evidence in the record; and

2. The penalty imposed by the School Board was not so disproportionate to the offenses as to be shocking to one's sense of fairness.

The Appellate Division, however, sustained Alarcon’s claim that he was entitled to back pay and benefits "for any period of suspension in excess of 30 days, including the period commencing with an earlier determination terminating his employment," which was previously annulled by the Appellate Division in Alarcon I, up to the date of the determination by the Appellate Division in Alarcon II, “excluding any delay occasioned by him, and less any unemployment insurance benefits received for that period.”

The court than remitted the matter to the School Board to calculate the amount of “back pay and benefits to which [Alarcon] is entitled, if any, and to pay him that amount.”

Another decision in which “tainted testimony” was the basis for overturning a disciplinary determination is Buric v Safir, 285 A.D.2d 255, leave to appeal dismissed, 98 NY2d 688. This case also involved a claim for back salary and benefits that, under there relevant circumstances, was denied.

The decision in Alarcon I is posted on the Internet at:

The decision in Alcarcon II is posted on the Internet at:

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Monday, October 20, 2014

Appellate Courts differ regarding the State’s reduction of its employer contribution towards health insurance premiums for certain State retirees

Appellate Courts differ regarding the State’s reduction of its employer contribution towards health insurance premiums for certain State retirees
Bransten v State of New York, 117 AD3d 455
Retired Pub. Empls. Assn., Inc. v Cuomo, 2014 NY Slip Op 07044, Appellate Division, Third Department

In course of collective bargaining for Taylor Law agreements for the period 2011-2016, the State and several collective bargaining units representing State employees agreed to reductions in the State's employer contribution towards State employee health insurance premiums to avoid laying off State employees during the life of these several collective bargaining agreements.

As a result, the State's employer contributions towards State employee health insurance premiums were reduced by between 2% and 6% depending upon the State employee's salary grade. The President of the State Civil Service Commission adopted a regulation,* approved by the Director of the Budget, reducing the State’s employer contributions for State employees and for State employee who had retired before the effective date of these new collective bargaining agreements [pre-contract State retirees]. 

The Bransten v State of New York decision

In September 2011 the New York State Department of Civil Service notified sitting judges that the State would reduce its contributions for health insurance premiums by 6% and reduce its contributions to retired judges' health insurance premiums by 2%. 

The Bransten court explained that the reduction in the State’s employer contribution to health insurance premiums occurred in 2011 when the State, faced with a serious budget shortfall, threatened to lay off thousands of workers unless employees in State's several collective bargaining units made wage and benefit concessions that included bearing more of the cost of their health care insurance.

However, the Bransten court said that the judiciary “had no power to negotiate with the State with respect to the decrease,” and they “received no benefit from the no-layoffs promise because their terms of office were either statutorily or constitutionally mandated.” Thus, said the court, “§167.8 uniquely discriminates against judges because it imposes a financial burden on them for which they received no compensatory benefit.”

Accordingly, said the Appellate Division, the State’s motion to dismiss the Bransten action was properly denied by Supreme Court. 

The Retired Public Employees Association, Inc. [RPEA]  v Cuomo decision

The Retired Public Employees Association [RPEA] challenged the State's reduction of the percentage of its employer contribution towards health insurance premiums with respect to “pre-contract” State retirees, contending that:

 [1] Civil Service Law §167.1 sets out the ratio of employer contributions the State was required to make on behalf on these pre-contract State retirees and that provision was not amended to provide for a different ratio;

[2] The State’s effort to set out any different ratio of State's employer contributions made on behalf of  pre-contract State retirees by adopting a regulation, 4 NYCRR 73.3 [b], under color of §167.8, as amended, was a nullity; and

[3] The reason advanced by the State for reducing the State’s employer contributions towards employee health insurance premiums in the course of collective bargaining – to avoid layoffs – was irrelevant insofar as pre-contract State retirees were concerned as pre-contract State retirees are neither employees nor, as retired employees, subject to layoff from employment.

The Appellate Division, Third Department, however, ruled that Civil Service Law §167.8 “plainly and unambiguously" permits modification of the fixed contribution rates for retiree health insurance premiums set forth in Civil Service Law §167(1)(a) by regulation" with respect to employees of the State and the pre-contract State retirees.

The court explained that: “Given the Legislature's expressed intent** to authorize a modification in the state's contribution rate towards retiree health insurance premiums under the circumstances present here, we conclude that [the State’s] actions in effectuating the reduced state contribution rates was both lawful and in compliance with the statute".

It then dismissed RPEA's complaint on the ground that the Complaint "failed to state a cause of action ... except that the John and Mary Does 1-2,000, current and retired Judges and Justices of the Unified Court System of the State of New York are dismissed from this action, without prejudice."***

As to the retired judges represented by RPEA in its action, it would appear that pre-contract State retirees are similarly situated as pre-contract State retirees have no power to negotiate with the State and they received no benefit from the no-layoffs promise because retirees are not employees subject to layoff pursuant to §§80 or 80-A of the Civil Service, which provisions address “Suspension or demotion upon the abolition or reduction of positions..”

* 4 NYCRR 73.3 [b].

** The SPONSORS MEMO in support of Senate S5846, which was enacted into law as Chapter 491 of the Laws of 2011, states that the purpose of the bill was “amend the civil service law and the state finance law, in relation to compensation and other terms and conditions of employment of certain state officers and employees.” With respect amendment to Civil Service Law § 167(8), the Sponsor’s memo stated that the purpose of the amendment is “to provide authority to modify the employer and employee shares of health premium and subscription costs under the New York State Health Insurance Plan [emphasis supplied].”

*** Retired State judges and retired State legislative personnel were among the pre-contract State retirees included in RPEA's action.

The Bransten decision is posted on the Internet at:

The RPEA decision is posted on the Internet at:


Friday, October 17, 2014

Off-duty misconduct

Off-duty misconduct
OATH Index No. 1460/14

A research assistant [RA] was served with charges that alleged he was guilty of off-duty misconduct that resulted in his arrest among other misdeeds.  .

The employer presented certificates of conviction, which proved that RA committed the crimes of assault, resisting arrest, intentional property damage and public intoxication. 

OATH Administrative Law Judge Kevin F. Casey found RA could be disciplined for such off-duty conduct, which fundamentally conflicted with the agency's mission. In determining whether a criminal conviction for off-duty activity constitutes employee misconduct, Judge Casey said that “this tribunal has also looked to whether there is a sufficient nexus between the underlying act and the employee’s position.”*

The ALR also found that RA failed to notify the agency of his arrest and conviction and was absent without leave.

Also in the record was evidence showing that RA violated an order of protection in April 2013 and used disrespectful language in an email to an agency attorney

Judge Casey recommended that the employer terminate RA from employment, which recommendation was adopted by the appointing authority.

* In Tessiero v Bennett, 50 A.D.3d 1368, the Appellate Division sustained the termination of an employee found guilty of off-duty misconduct that brought discredit upon the employer.

The decision is posted on the Internet at:


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Thursday, October 16, 2014

Volunteer ambulance organization is not a “state actor” for the purposes of the Fourteenth Amendment

Volunteer ambulance organization held not a “state actor” for the purposes of the Fourteenth Amendment
Grogan v. Blooming Grove Volunteer Ambulance Corps, USCA, 2nd Circuit, 13-656-cv

The Blooming Grove Volunteer Ambulance Corps [BGVAC], a private volunteer ambulance organization, submitted a motion in federal district court seeking summary judgment dismissing claims brought against it pursuant to 42 U.S.C. §1983 based on allegations that BCVAC had dismissed Lenore Grogan, one of its members, without a hearing.

Grogan alleged that various disciplinary charges levied against her by BGVAC, resulting in her suspension as an officer of BGVAC without a  hearing constituted “state action” and that such action violated her rights under the First and Fourteenth Amendments of the United States Constitution. The district court disagreed and granted BCVAC’s motion and dismissed Grogan’s complaint.

In her appeal to the Second Circuit Grogan contended that BGVAC was a “state actor” for the purposes of the Fourteenth Amendment as it had contracts with a municipality to provide emergency medical services. Accordingly, Grogan contended, BGVAC had violated her Constitutional rights when it issued disciplinary charges against her and then suspended her from the organization without a proper hearing.
Grogan claimed that BGVAC’s conduct amounts to state action because: (1) the services BGVAC provides — emergency medical care and general ambulance services — are “traditionally exclusive public functions” that the State has delegated to BGVAC; and (2) the extensive State regulation and oversight under which BGVAC operates, coupled with BGVAC’s performance of a “municipally assumed” statutory function, so “entwines” BGVAC with the State that its actions are fairly attributable to the State.

The Circuit Court disagreed, sustaining the District Court’s determination that BGVAC’s conduct did not constitute state action.

The court explained that “Because the United States Constitution regulates only the Government, not private parties,” Grogan, who alleges that her “constitutional rights have been violated must first establish that the challenged conduct constitutes ‘state action.” To demonstrate state action, said the court, a plaintiff must establish both that the alleged constitutional deprivation was caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the State or by a person for whom the State is responsible, and that the party charged with the deprivation is a person who may fairly be said to be a state actor.’”

In this instance, said the court, there are two elements to consider:  

1. Has Grogan satisfied the “public function” test by demonstrating that there a “close nexus” between the challenged action and the State by showing that the private entity has exercised powers that are traditionally the exclusive prerogative of the State; and

2. Is the private entity so entwined with governmental policies, or is government entwined in the management or control of the private entity.

The court said that the statute authorizing the municipality to contract with BGVAC, New York Town Law §198(10-f), imposes no duty, obligation, or responsibility on New York towns to provide emergency medical services. Instead, the statute is entirely permissive, declaring that “the town board may . . . provide an emergency medical service, a general ambulance service, or a combination of such services . . . and to that end may . . . [c]ontract with one or more . . . organizations” to provide such services.”

Because the New York statutory scheme does not place an affirmative responsibility on towns or municipalities to provide ambulance services, those services cannot be considered “public functions.”

The Circuit Court futher explained that “even if we were to assume that the provision of emergency medical care and ambulance services constitutes state action under the public function theory (which we do not), that conclusion would be of no assistance to Grogan because the gravamen of her claims deals not with the performance of those ambulance services but instead with BGVAC’s employment decision to charge and suspend her.”

Concluding that Grogan” failed to demonstrate a sufficiently close nexus between the State or Town governmental entities and the disciplinary actions taken against her,” BGVAC’s actions cannot be fairly attributed to the State or the Town and, as a result, BGVAC cannot be held liable under  §1983,” the judgment of the District Court was affirmed.

The decision is posted on the Internet at:

Wednesday, October 15, 2014

Withdrawal of a resignation

Withdrawal of a resignation
2014 NY Slip Op 06883, Appellate Division, First Department

From time to time a former New York City Department of Education educator who was tenured in the position is reemployed in his or her former position. Does such a reemployment automatically result in the employee attaining tenure? 

The Appellate Division ruled that if a former tenured employee fails to comply with the regulations of the Chancellor of the New York City Department of Education governing the “withdrawal of a resignation and restoration to tenure,” the former employee’s tenure is not ipso facto* restored.

Rejecting a former New York City Principal’s contention that his tenure was constructively restored to him upon his reemployment by the New York Department of Education, the Appellate Division affirmed Supreme Court dismissal of his petition seeking a court order directing the Chancellor to reinstate him to his former position with tenure.

In a footnote to the decision, the Appellate Division said that “neither side has explained why petitioner could not still be restored to tenure if he now followed the procedures set out in the Chancellor's regulations.”

The relevant regulations appear to be Regulation C-205, subdivisions (28) and (29).

C-205(28) [Withdrawal of Resignation Generally] provides, in pertinent part, that “upon written request, a pedagogical employee who has resigned may, at the discretion of the Executive Director of the Division of Human Resources, be permitted to withdraw such resignation….”

C-205(29) [Withdrawal of Resignation within Five Years] addresses the reinstatement of former non-supervisory tenured staff and provides, in pertinent part, that in the event "a non-supervisory educator is reinstated more than five years after the effective date of his or her resignation," he or she will be required to serve a two-year probationary period.

With respect to employees subject to the Rules for the Classified Service promulgated by the New York State Civil Service Commission, 4 NYCRR 5.3(c) provides that “A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

That said, 4 NYCRR 5.4, Reinstatement following resignation, provides, in pertinent part that a permanent employee who has resigned from his or her position may be reinstated without examination within one year of the effective date of the resignation in the position from which he or she resigned, if then vacant.

4 NYCRR 5.4 further provides that “In an exceptional case, the commission may, for good cause shown and where the interests of the government would be served, waive the provisions of this section to permit the reinstatement of a person to his [or her] former position more than one year after resignation.”

Many local Civil Service Commissions have adopted similar rules.

* In other words, the individual does not attain tenure as a direct consequence of his or her reemployment.

The decision is posted on the Internet at: 

Tuesday, October 14, 2014

Appealing administrative decisions

Appealing administrative decisions
Modlin v Kelly, 2014 NY Slip Op 06866, Appellate Division, First Department

Typically a disappointed individual challenges an administrative decision by bringing an Article 78 action.  

In reviewing an administrative determination that was made without a hearing the issue is whether the action taken had a "rational basis" and was not "arbitrary and capricious" An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts." If the determination has a rational basis, it will be sustained, even if a different result would not be unreasonable. Ward v City of Long Beach, [20 NY3d 1042. .

In contrast, if the matter was determined after an administrative hearing, should the petition before Supreme Court raise a question of whether an administrative determination was supported by substantial evidence the proceeding is to be transferred from the Supreme Court to the Appellate Division to address that issue [See §7804[g] of the Civil Practice Law and Rules.]

Where the challenged determination was judicial or quasi-judicial in nature and made on the basis of a hearing at which evidence was taken pursuant to direction by law an aggrieved party is entitled to have a court test the legal sufficiency of the evidence relied upon by the agency by simply requesting that it do so.

Further, there is essentially nothing to be “proved” in the course of the appeal as all evidence has already been adduced at the administrative hearing and findings made based on such evidence. Accordingly, the challenging party’s task is not to prove transactions or occurrences, but rather to present legal argument on the substantial evidence issue.

What constitutes substantial evidence? In Robert Martin v Board of Trustees, 34 AD3d 580, the Appellate Division commented that "Substantial evidence has been defined as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact." Further, said the court, “it is the function of the administrative agency or the Hearing Officer, not the reviewing court, to weigh the evidence or assess the credibility of witnesses and determine which testimony to accept and which to reject," citing Sahni v New York City Bd. of Educ., 240 AD2d 751.

In Modlin the court pointed out that Supreme Court "improperly transferred” the matter to the Appellate Division because the determination challenged “was not made pursuant to an administrative hearing.” The court then addressed the merits of the appeal “in the interest of judicial economy,” citing DeMonico v Kelly, 49 AD3d 265.

The decision is posted on the Internet at:

Friday, October 10, 2014

Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appeal

Ignorance of the appeal process does not provide a sufficient basis to excuse a delay in commencing a timely appeal
Decisions of the Commissioner of Education, Decision No.16,671

A certified public school administrator [Probationer] was appointed by the School District as a probationary Special Education School Improvement Specialist.  Probationer’s three-year probationary appointment was to expire on November 22, 2013. By letter dated November 19, 2013, Probationer was notified that the School Superintendent was recommending the board discontinue her probationary appointment as of January 19, 2014. At the same time Probationer was offered a one-year extension of her probationary term, which she subsequently declined.

Ultimately Probationer was advised by letter dated December 17, 2013, that her employment was terminated effective January 19, 2014. 

In her appeal to the Commissioner challenging her termination Probationer alleged that she had fulfilled her job responsibilities, had positive evaluations and no disciplinary actions had been taken against her.* She also claimed that she had been recommended for tenure by two supervisors. In view if this, Probationer asked that the Commissioner issue an order directing her reinstatement to her former position with tenure and “back pay or monetary rewards.”

Contending that Probationer had not been denied any statutory or constitutional rights and that she fails to demonstrate a clear right to the relief requested, the School District argued that Probationer’s appeal was untimely and must be dismissed.

Addressing the procedural issue of timeliness, the Commissioner noted that an appeal to the Commissioner must be commenced “within 30 days from the making of the decision or the performance of the act complained of, unless any delay is excused by the Commissioner for good cause shown.”

Here the record did not indicate when Probationer actually received the letter advising her that her employment was to be terminated. In such case, explained the Commissioner, the date of receipt is calculated by affording the usual five days for mailing, excluding Sundays and holidays. In Probationer case, said the Commissioner, even allowing the usual five days for mailing, her appeal was not commenced within 30 days of the December 17, 2013 letter notifying her of her termination.

Probationer had attempted to explain her delay in commencing the appeal in a letter to the State Education Department’s Office of Counsel indicating that she had written to the State Education Department in May 2014 and received a response in June 2014 advising her that she could appeal the school district’s decision to the Commissioner without an attorney.  Petitioner said that she was previously unaware that she could appeal “without an attorney.” 

However, said the Commissioner, “Even if I accept [Probationer’s] letter … she offers no satisfactory explanation of why a delay of more than six months in commencing the appeal should be excused.”  Further, observed the Commissioner, “It is well-settled that, except in unusual circumstances, ignorance of the appeal process does not afford a sufficient basis to excuse a delay in commencing an appeal.”

The Commissioner said that he found “no unusual circumstances in this case” and dismissed Probationer’s appeal on the ground that it was untimely.

* The Commissioner's decision states that Probationer “does not allege that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription,” citing Appeal of Rubinstein, 45 Ed Dept Rep 299, Decision No. 15,329. As the Court of Appeals said in Duncan v Kelly, 9 N.Y.3d 102, a probationary employee may be discharged for "almost any reason, or for no reason at all" as long as the decision is not made "in bad faith or for an improper or impermissible reason."

The decision is posted on the Internet at:
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