Employees’ requests to switch from the State University’s Optional Retirement Program to the New York State and Local Employees’ Retirement System rejected

Employees’ requests to switch from the State University’s Optional Retirement Program to the New York State and Local Employees’ Retirement System rejected

2015 NY Slip Op 03216, Appellate Division, Third Department

The State Comptroller denied requests submitted by four employees employed by SUNY’s Stony Brook University Medical Center [SBUMC] currently enrolled in the State University’s Optional Retirement Program [ORP] seeking to be enrolled in the New York State and Local Employees' Retirement System [NYSLERS] retroactive to  their respective initial dates  of employment by SBUMC.

Upon learning that they had been eligible for enrollment in NYSLERS when they were initially appointed by SBUMC, the four individuals applied for enrollment in NYSLERS but their applications were denied. Following an administrative hearing the employees’ enrollment applications were again denied by a Hearing Officer. The Comptroller subsequently adopted the Hearing Officer's determinations and the employees appealed in an effort to have the Comptroller’s decision annulled.

The Appellate Division noted that Education Law §393(1)(a), in relevant part, provides that employees eligible to enroll in ORP "shall elect" to join either NYSLERS [sic] or ORP.*The court said in the event an employee fails to make an election, he or she "shall be deemed to have elected membership in NYSLERS [sic]," (See Education Law §393[1][b]).** Upon enrollment in ORP, an employee becomes "ineligible for membership" in NYSLERS (See Education Law §393[2]).

The court ruled that the Comptroller's determinations should be upheld because they were supported by substantial evidence. Further, said the Appellate Division, “Courts will not disturb the Comptroller's application and interpretation of relevant statutes unless it is irrational or contrary to the plain language of the statutes.”

According to the decision, the record before the Comptroller indicated that:

1. Two of the employees each testified that they met with a human resources representative of SBUMC who informed them that they could not enroll in NYSLERS, so they filled out forms electing ORP.

2. A third employee said that she received the same information, but did not check the box for ORP on the retirement program election form. Although she alleges that someone else must have checked the box, the individual acknowledged that she completed and signed a separate application to enroll in ORP.

3. The fourth employee  testified that he never enrolled in a retirement program and the enrollment form produced by SBUMC was forged. Despite this alleged forgery and not having enrolled in a retirement program, this individual was aware that he had a pension plan, which was ORP, and did not object or raise any questions about it for 25 years after his employment began.

The Comptroller determined, “through a reasonable application of these facts and the relevant statutes,” that the four employees were ineligible for enrollment in NYSLERS because they were enrolled in ORP. The employees, in contrast, had contended that they did not "elect" to join ORP "as opposed to NYSLERS — inasmuch as an election implies a voluntary choice, which was impossible here because they were misinformed and told that they had no options — so they should be deemed members of NYSLERS pursuant to Education Law §393(1)(b)."

The Appellate Division held that “As Education Law §393 does not define 'elect,'*** and it is reasonable to interpret that word to include the filing of an enrollment form for one particular retirement program regardless of the applicant's knowledge of other options, we will not disturb the Comptroller's interpretation.”

Finally, the court observed that the Comptroller is not estopped from denying enrollment in NYSLERS, as required by statute, after the employees  enrolled in ORP due to erroneous advice supplied by the individuals’ employer, citing Retirement and Social Security Law §45.

The Appellate Division then confirmed the Comptroller’s determinations and dismissed the petitions filed by the employees.

* §393(1)(g) of the Education Law provides that “No election by an eligible employee of the optional retirement program shall be effective unless it shall be accompanied by an appropriate application, where required, for the issuance of a contract or contracts under the program.” Another element to be considered is set out in §393(5)(d) which provides that “Anything in this subdivision five notwithstanding, service as an eligible employee for which a contribution is made to the optional retirement program shall neither entitle any eligible employee to join or rejoin the New York state teachers' retirement system nor be creditable in such system.”

** Presumably the four employees were ineligible to enroll in the New York State Teachers’ Retirement System at the time they were appointed by SBUMC as §393(1)(b) provides, in pertinent part, “In the event an eligible employee fails to make an election as provided in paragraph (a) of this subdivision, he [or she] shall be deemed to have elected membership in the New York state teachers' retirement system, or such public retirement system in this state in which his [or her] membership may be otherwise required in accordance with law….”

*** See “Retirement Program Election Form,” on Page 16 of the State University of New York’s handbook entitled Retirement Plans for New Faculty and Staff. 

The handbook is posted on the Internet at:

http://www.suny.edu/media/suny/content-assets/documents/benefits/retirement-systems/Retirement-Programs-Jan-2015.pdf

The Appellate Division’s decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03216.htm

Summaries of recent disciplinary decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

Summaries of recent disciplinary decisions posted on the Internet by the New York CityOffice of Administrative Trials and Hearings [OATH]

Source: NYC Office of Administrative Trials and Hearings

Click on text highlighted in color to access the text of the decision.

Correction officer may not engaged in undue familiarity with an inmate

OATH Administrative Law Judge Kara J. Miller found that a correction officer had engaged in undue familiarity with an inmate by failing to notify the Department that her husband had been arrested and incarcerated on Rikers Island, by taking telephone calls from him on her post phone and cell phone while on duty, and by disclosing Department business to him during the calls. The officer also threatened and assaulted a woman who she believed was having an affair with her husband after he was released from jail. Termination of employment recommended.   Dep't of Correction v. Harris, OATH Index No. 2383/14

Removal of an individual’s name from a published OATH decision

OATH Administrative Law Judge Faye Lewis denied a correction officer's motion to remove his name from a published OATH decision. Reports and recommendations issued by OATH, an independent tribunal, are not "under the control" of the Department of Correction and thus do not fall within the confidentiality provisions of section 50-a of the Civil Rights Law.   Dep't of Correction v. Victor, OATH Index No. 388/15.

 Employee’s being provoked a mitigating factor in imposing disciplinary penalty

OATH Administrative Law Judge Kara J. Miller recommended dismissal of charges that a sewage treatment worker had left his assigned work location, threw a clipboard at a co-worker and neglected his duties. She sustained a charge that he had used threatening language towards the co-worker, but found he was provoked and recommended a reprimand as the penalty. ALJ Miller recommended dismissal of all charges brought against a second sewage treatment alleged to have challenged a co-worker to a fight and to have cursed the co-worker.   Dep't of Environmental Protection v. Butcher, OATH Index Nos. 297/15 & 299/15

Including inappropriate language in official correspondence

OATH Administrative Law Judge Faye Lewis found that a case worker had sent official correspondence to a client that contained insulting language and was insubordinate and discourteous to a supervisor by failing to complete an assignment and instead ripping up a document in protest, in view of co-workers.   Human Resources Admin. v. Lovell, OATH Index No. 2477/14 

Seeking indemnification for legal expenses pursuant to Public Officers Law §18

Seeking indemnification for legal expenses pursuant to Public Officers Law §18

Paul W. Mossman as Commissioner of Social Services of Columbia County v County of Columbia (Two Proceeding), 2015 NY Slip Op 03005, Appellate Division, Third Department

In Proceeding No. 1 pursuant to CPLR Article 78 Commissioner Mossman [Mossman], among other things, sought a court order annulling the County’s determination that he was not entitled to a legal defense pursuant to Public Officers Law §18 “in connection with a certain grand jury proceeding.”

In Proceeding No. 2 pursuant to CPLR Article 78 Mossman sought a court order directing the County “to provide such a legal defense in connection with a subsequent grand jury proceeding.”

In March 2013 the Columbia County District Attorney issued a subpoena demanding that Mossman appear before a grand jury with various documents related to the official actions of Columbia County Department of Social Services employees. Mossman thereafter sought to retain outside counsel and requested that the County indemnify him pursuant to Public Officers Law §18 and Columbia County Code §36-1. The County denied Mossman’s request stating that those provisions of law did not apply to "potential criminal matters."

Mossman challenged the County’s decision and a Supreme Court granted his petition in a December 2013 judgment.

In March 2014 the Columbia County District Attorney served a similar subpoena on Mossman and the County again denied Mossman request to be indemnified for his legal expenses. Mossman initiated an second CPLR Article 78 proceeding and Supreme Court, relying upon its rationale in Proceeding No. 1, issued a judgment in April 2014 granting Mossman‘s petition.

The County appealed both the December 2013 and April 2014 Supreme Court judgments. The Appellate Division, however, affirmed both Supreme Court rulings, explaining:

1. The County had adopted Public Officers Law §18, and was thus obliged to "provide for the defense of [an] employee in any civil action or proceeding, state or federal, arising out of any alleged act or omission which occurred or allegedly occurred while the employee was acting within the scope of his [or her] public employment or duties," citing Public Officers Law §18[3][a]). 

2.      As “a conflict of interest” prevented the Columbia County Attorney from representing Mossman, Mossman was entitled to representation "by private counsel of his choice."

  

3.      Mossman satisfied the notice requirements of Public Officers Law §18 and is an employee of the County, and the subpoenas clearly stem from actions undertaken in the course of his public duties.

The Appellate Division rejected the County’s argument that the grand jury proceeding did not constitute a "civil action or proceeding" for the purposes of Public Officers Law §18 as the County “failed to demonstrate" what was the objective of the grand jury proceeding and admitted that the District Attorney had not made his "intentions [known] in relation to the potential for criminal charges." The court also noted that although grand juries may indict a person for a criminal offense “they are also empowered to make presentments as to noncriminal misconduct or neglect by public officers and employees."*

The court said that because there was no indication that criminal charges are actually being contemplated, Supreme Court properly "reject[ed] [the County’s] claim that because the [g]rand [j]ury proceeding[s] could have resulted in criminal charges against [Mossman ], the proceeding[s] [were] not civil in nature" and that any other holding “would defeat the clear intent of the statute, which insulates public employees from litigation expenses arising out of their employment."**

* The Appellate Division said that the subpoenas served on Mossman sought information regarding "all of [Mossman] employees and subordinates." Contrary to the County’s contention, the Appellate Division said that the statutory power to report on the noncriminal misconduct of any public servant bears no connection to the separate constitutional right of a grand jury to investigate and indict public officers.

** Public Officers Law §19.2, which applies to employees of the State as the employer, provides, in pertinent part, "it shall be the duty of the   state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of an employee in his  or  her  defense  of  a  criminal   proceeding in  a  state  or  federal court arising out of any act which   occurred while such employee was acting within the scope of  his  public   employment  or  duties  upon  his acquittal or upon the dismissal of the criminal charges against him or reasonable attorneys' fees  incurred  in   connection  with an appearance before a grand jury which returns no true   bill against the employee where such appearance was required as a result of any act which occurred while such  employee  was  acting within  the   scope  of  his public employment or duties unless such appearance occurs   in the normal course  of  the  public employment  or  duties  of  such   employee.

The decision is posted on the Internet at: 

http://www.nycourts.gov/reporter/3dseries/2015/2015_03005.htm

Asking an administrative body to reconsider its earlier decision does not revive an expired statute of limitation without a fresh examination of the matter based on newly presented evidence

Asking an administrative body to reconsider its earlier decision does not revive an expired statute of limitation without a fresh examination of the matter based on newly presented evidence

The Board of Education denied a teacher’s request for family health insurance benefits in May 2008, explaining that she was not eligible for coverage under the terms of the relevant collective bargaining agreement.

In May 2012, the teacher submitted another request for family health insurance benefits. This request was, again, denied by the School District in August 2012. In November 2012 the teacher commenced a CPLR Article 78 proceeding challenging the School District’s decision.

In its answer to the teacher's petition the School District contended that the proceeding was untimely, arguing that the second request for family health insurance benefits did not renew or revive the statute of limitations. Supreme Court disagreed, holding that the teacher’s Article 78 petition was timely and the School District appealed.

The Appellate Division, contrary to the Supreme Court's determination, ruled that the School District was correct.

The court explained that as a general rule, a proceeding pursuant to CPLR Article 78 must be commenced within four months after the determination to be reviewed becomes final and binding on the petitioner and that the initial determination controls "unless the agency conducts a fresh and complete examination of the matter based on newly presented evidence.” The Appellate Division concluded that the August 2012 determination did not serve to revive the limitations period, as the School District adhered to its initial determination without a fresh examination based on newly presented evidence.

Accordingly, the Appellate Division ruled that “this proceeding is barred by the four-month statute of limitations set forth in CPLR 217(1).”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02977.htm

New York State Comptroller Thomas P. DiNapoli proposes legislation to assist State and local governments pay for retiree health care premiums

New York State Comptroller Thomas P. DiNapoli proposes legislation to assist State and local governments pay for retiree health care premiums

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli today announced legislation to create an optional investment pool to help the state and local governments fund retiree health insurance and other post employment benefits (OPEB). DiNapoli estimates the unfunded OPEB liability of New York state to be $68.2 billion and an additional $68.3 billion for local governments outside of New York City that have reported data.

When a public employee retires, the individual is often eligible for benefits including a pension and health insurance. While pension costs are pre-funded and invested to help pay for these future benefits, most governments, including New York state, do not set aside funds for retiree health insurance and instead fund it on a “pay-as-you-go” basis or out of pocket. The funding mechanism DiNapoli is proposing would give public employers another option to help fund these benefits for present day employees.

“New York is behind the eight ball on this issue. More than thirty states have already put rules in place that allow public employers to set aside money today to pay for these benefits,” DiNapoli said. “The numbers are daunting, but there is a real cost to doing nothing and leaving the bill for future generations of taxpayers to cover. The legislation would establish the legal structure for creating trusts that the state and local governments could use to start saving the funds needed to pay for these benefits. The responsible, good government thing to do is to start preparing for the future and plugging the hole before we reach a crisis moment.”

In state fiscal year (SFY) 2013-14, the state’s total unfunded OPEB liability is estimated at $54.3 billion for state agencies and $13.9 billion for the State University of New York (SUNY). Together, New York state and SUNY paid $1.5 billion for retiree health insurance in SFY 2013-14, which is half of what is needed to fully fund the OPEB liability. Costs for retiree health insurance are expected to grow as the workforce ages, people live longer and health care costs continue to increase. Current estimates project at least 6 percent annual increases for health insurance premiums – which means OPEB costs will double within 12 years.

If the state were to begin making regular annual contributions to a trust and earn a return on investments, it would potentially save billions of dollars in future OPEB cash payments.

The unfunded OPEB liability for the 837 of 2,293 local governments that reported it to DiNapoli’s office totaled $68.3 billion.

Moody’s Investors Service estimates the total national unfunded liability at $530 billion for states alone. New York is second to California in highest total OPEB liability, but it lags other states in starting to address this problem. Thirty-three states already have funding mechanisms to set aside funds to pay for OPEB costs.

DiNapoli’s proposal (Assembly 5525/Abbate) would:

1. Authorize the creation of irrevocable OPEB trusts, not part of the New York State Common Retirement Fund, so that New York state and its local governments can, at their option, help fund their OPEB liabilities;

2. Establish an OPEB investment fund in the sole custody of the State Comptroller for the investment of OPEB assets of the state and participating eligible local governments;

3. Designate the president of the Civil Service Commission as the trustee of the state’s OPEB trust and the governing boards as trustee for local governments; and

4. Allow school districts to transfer excess reserve balances to an OPEB trust once it is established.

Under DiNapoli’s proposal, there is no limit on how much or how little a government can deposit into the trust.

New York City, which has already begun funding its $89.5 Billion OPEB liabilities would be grandfathered in under its own statute. In 2006, the city established the Retiree Health Benefits Trust (RHBT), which currently has a balance of $2.4 billion. New York City Councilman Daniel Garodnick has proposed a City Charter amendment that would require the city to put at least 5 percent of its annual retiree health insurance expenses into a reserve fund under certain circumstances.

Since 2004, the Governmental Accounting Standards Board (GASB) has required state and some local governments to report their OPEB liabilities on their financial statements as obligations accrued during an employee’s entire period of service.

In 2015, GASB is finalizing additional accounting and financial reporting requirements, which will standardize how local governments report their OPEB liabilities.

DiNapoli notes that governments with no plan to deal with their large OPEB liabilities could see their bond ratings suffer and borrowing costs increase down the road.

Information concerning the proposed legislation is posted on the Internet at:

Memo

Bill Text

Status

An entity claiming that it is not subject to the State’s Freedom of Information Law has the burden to provide documentary evidence that conclusively establishes such a defense as a matter of law

An entity claiming that it is not subject to the State’s Freedom of Information Law has the burden to provide documentary evidence that conclusively establishes such a defense as a matter of law

Nassau Community Coll. Fedn. of Teachers, Local 3150 v Nassau Community Coll., 2015 NY Slip Op 02972, Appellate Division, Second Department

The Nassau County Community College Foundation [Foundation] denied Nassau Community College Federation of Teachers, Local 3150’s [Local 3150] request for certain information pursuant to the Freedom of Information Law [FOIL], Public Officers Law, Article 6. Foundation contended that it “is not a governmental agency and, therefore, is not subject to FOIL”.

In response to Local 3150’s Article 78 petition, Foundation moved to dismiss the petition insofar as it was  asserted against it. Supreme Court granted Foundation's motion but the Appellate Division reversed the lower court’s ruling and reinstated Local 3050’s petition insofar as asserted against the Foundation.

What is an “agency?” The Appellate Division said that an "agency" is "any state or municipal department, board, bureau, division, commission, committee, public authority, public corporation, council, office or other governmental entity performing a governmental or proprietary function for the state or any one or more municipalities thereof, except the judiciary or the state legislature," citing Public Officers Law §86[3].

The court then noted that Nassau Community College [College] is a public college, chartered under Education Law Article 126, sponsored and partially funded by Nassau County, and Foundation is a not-for-profit corporation created in 1979 to support the College's mission.

The Appellate Division explained that FOIL "was enacted to promote open government and public accountability and imposes a broad duty on government to make its records available to the public" and all "public agencies" are subject to FOIL,” citing Perez v City University of New York, 5 NY3d 522.

As to Foundation’s motion to dismiss Local 3150’s petition with respect to it, the Appellate Division said that Foundation had the burden to provide documentary evidence that "utterly refute[d] [Local 3150’s] factual allegations, conclusively establishing a defense as a matter of law.

Foundation failed to meet this burden, said the court, as it did not establish that it lacks the attributes of a public entity. Accordingly, Foundation was deemed a public agency and Supreme Court should have denied Foundation’s motion to dismiss Local 3150’s petition insofar as asserted against it.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02972.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 11, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending April 11, 2015

Click on text highlighted in color to access the full report

Audits of political subdivisions of the State recently audited:

 Town of Blooming Grove,

 Village of Cayuga Heights,

 Greenville Fire District #1,

 Hauppauge Fire District,

 Village of Holley,

 Town of Olean Fire Company No. 1 and the

 Plattsburgh Public Library.

Buffalo City Schools employee found to be simultaneously working in a second job

A Buffalo City School District technician pleaded guilty Thursday in Erie County Court after admitting he worked for a second school district at the same time before his scam was discovered by State Comptroller Thomas P. DiNapoli’s office.

http://www.osc.state.ny.us/press/releases/apr15/040915a.htm?utm_source=weeklynews20150412&utm_medium=email&utm_campaign=040915arelease

Comptroller finds almost 700 public authorities operate with little oversight and transparency About 675 local authorities operate in New York state and provide a host of important services to citizens. However, the 639 authorities operating outside of New York City employ more than 4,300 employees, report approximately $1.5 billion in spending and $18 billion in outstanding debt, and operate with little oversight.

http://www.osc.state.ny.us/press/releases/apr15/040915.htm?utm_source=weeklynews20150412&utm_medium=email&utm_campaign=040915release

New appointments to Governor Cuomo’s administration

New appointments to Governor Cuomo’s administration

Source: Office of the Governor

Governor Andrew M. Cuomo recently announced the following eight appointments to his administration.

Matthew Driscoll will be nominated to serve as Commissioner of the Department of Transportation. Mr. Driscoll previously served as President and CEO of the New York State Environmental Facilities Corporation, where he implemented new business models which have resulted in record-setting investments in New York State’s clean water infrastructure. Mr. Driscoll has also held a number of cabinet positions in Governor Cuomo’s administration, including Co-Chair of the New York State Storm Recovery Task Force, member of the Strategic Implementation Assessment Team to assist in the progress of the Regional Economic Development Council, and board member of the Financial Restructuring Board, which delivers targeted restructuring solutions to assist New York municipalities under fiscal stress. Prior to these roles, Mr. Driscoll was twice elected mayor of the City of Syracuse. As Mayor, Mr. Driscoll’s action plan for energy conservation, sustainability initiatives and environmental protection efforts earned Syracuse national recognition. He also instituted a performance-based accountability program for city government, called SyraStat, which saved millions of dollars for city taxpayers. Mr. Driscoll’s nomination will require Senate confirmation.

Ron Thaniel has been appointed Deputy Secretary for Transportation. Mr. Thaniel has nearly two decades of transportation experience at federal, state, local and international levels on investments needed to rebuild and modernize transportation infrastructure. He previously served as Founder and Principal of Thaniel Government Relations LLC, a transportation consulting firm. Prior to that, Mr. Thaniel was Executive Director of the National Association of City Transportation Officials in New York, where he advised city transportation commissioners on the federal reauthorization for highway and transit programs. Mr. Thaniel served as Assistant Executive Director for The United States Conference of Mayors in Washington, D.C. from 2002 to 2007 and again from 2008 to 2011, where he led transportation policy and represented mayors before Congress and federal agencies and before international organizations and governments. Mr. Thaniel was also Director of Government Affairs – Northeast United States for Amtrak and was transportation aide to former Minneapolis Mayor Sharon Sayles Belton. Featured by Governing Magazine as “The Man Behind U.S. Transportation’s Future,” Mr. Thaniel has served on executive committees of numerous national transportation organizations, and is a member of the Washington, D.C. transportation think tank Eno Center for Transportation Policy. Mr. Thaniel has a B.A. from Morgan State University and an M.P.A. from Hamline University.

Karen Rae has been appointed Senior Advisor for Innovative Project Delivery for Empire State Development. Ms. Rae, a nationally-recognized transportation expert with over 35 years of related experience, previously served as Governor Cuomo’s Deputy Secretary for Transportation, a position she held since 2011. In this role, she oversaw and coordinated budget, policy and the Governor’s initiatives within the transportation portfolio, including the New York State Department of Transportation, New York State Thruway/Canals corporation, MTA, Department of Motor Vehicles, Port Authority of NY/NJ and New York State Bridge Authority. She has been directly involved in representing Governor Cuomo during the passage of New York State’s first Design/Build legislation, coordinating transportation agencies efforts to expedite environmental review and procurement of the project. Before joining the Cuomo Administration, Ms. Rae served as Deputy Administrator of the Federal Railroad Administration in the Obama Administration, where she managed the federal high speed rail initiative and developed national freight and passenger rail policy. Prior to this role, Ms. Rae was Deputy Commissioner of Policy and Planning at the New York State Department of Transportation and, prior, Director of the Virginia Department of Rail and Public Transportation, leading the effort to successfully negotiate a public/private partnership agreement and securing authorization to advance the Dulles Rail Project. Ms. Rae was named WTS International Woman of the Year in 2010. She has a B.S. from East Stroudsburg State College.

Lola W. Brabham has been appointed Executive Deputy Commissioner of the Department of Civil Service. Previously, Ms. Brabham served as Deputy Commissioner for Administration and Chief and Financial Officer for the State Department of Labor and, prior, was Assistant Chief Budget Examiner for the State Division of the Budget. She was Assistant Secretary for Health, Medicaid and Oversight and Director of Human Services in the Executive Chamber under Governor David Paterson. She was also a Legislative Budget Analyst for the Assembly Committee on Ways and Means and, early in her career, was Chief of Staff to Assemblyman N. Nick Perry. Ms. Brabham has a dual B.A. in Criminal Justice and Sociology from the State University of New York and an M.P.A. from Rockefeller College of Public Affairs and Policy.

Christopher J. Schoepflin has been appointed Western New York Regional Director, Director of Special Initiatives & President of USA Niagara. Mr. Schoepflin has served as President of the Corporation since 2005 and will be gaining additional responsibilities as Regional Director and Director of Special Initiatives. He previously served as Senior Project Manager for the Corporation and, prior to his time there, worked for the Buffalo Sabres for ten years, including five as a member of the senior management team. Mr. Schoepflin has a B.S. in Business Administration from the State University of New York.

Felisa Hochheiser has been appointed Special Counsel to the President & CEO for Ethics, Risk and Compliance for Empire State Development, where she will work with ESD’s Director of Compliance and Senior Counsel for ethics. For over five years, Ms. Hochheiser served as Director of Investigative Reporting and Special Counsel in the Office of the New York State Inspector General, where she led major investigations into criminal activity and abuses of office in New York State. Prior to that, she was principal law clerk to New York State Supreme Court Justice Richard Lee Price. She was also an associate at Hochheiser & Hochheiser, LLP. Ms. Hochheiser obtained a B.A. from Barnard College, Columbia University and a J.D. from the Benjamin N. Cardozo School of Law.

Barbara Comninos Kruzansky has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for the Office of Children and Family Services. Ms. Kruzansky most recently served as Lawyer in Residence at Albany Law School’s Government Law Center, where she worked on priority projects for the Law School’s legal and public policy research center. She previously served as a Senior Court Attorney for the New York State Court of Appeals. Ms. Kruzansky has a B.S. from Cornell University and a J.D., summa cum laude, from Albany Law School of Union University.

Adam W. Silverman has been appointed Special Counsel to the Commissioner for Ethics, Risk and Compliance for the Department of Corrections and Community Supervision. Mr. Silverman previously served as an associate at Greenberg Traurig LLP focusing on complex civil litigation, regulatory and administrative law, governmental investigations and litigation, and media and First Amendment law. Prior to joining Greenberg Traurig LLP, he served in the New York State Attorney General’s Office as an Assistant Attorney General in the Litigation Bureau. While there, Mr. Silverman represented state agencies and their employees and was trial counsel for state employees in six different federal lawsuits. He spends his free time as a volunteer attorney at The Legal Project in Albany, NY, where he was the recipient of the Stanley A. Rosen Memorial Award for Service to Victims of Domestic Violence in 2014. Mr. Silverman has a B.A. from The George Washington University and a J.D. from Albany Law School.

A court’s review of an adverse disciplinary decision promulgated after a hearing is limited to considering whether the determination was based on substantial evidence

A court’s review of an adverse disciplinary decision promulgated after a hearing is limited to  considering whether the determination was based on substantial evidence
2015 NY Slip Op 02963, Appellate Division, Second Department;

2015 NY Slip Op 03040, Appellate Division, First Department

An employee asked the court to review a disciplinary determination by the appointing authority that had adopted the findings and recommendation of a Committee of Aldermen made after a hearing. The Committee had found the employee guilty of two charges of misconduct or insubordination. The  penalty imposed by the appointing authority: termination of employment with the jurisdiction.

The Appellate Division dismissed the employee’s Article 78 petition explaining that the standard of review in an administrative determination made after a trial-type hearing directed by law is limited to considering whether the determination was based on substantial evidence.

The court said that “it is the function of the administrative agency, not the reviewing court, to weigh the evidence, assess the credibility of witnesses, and determine which testimony to accept and which to reject.” In the event there is conflicting evidence and room for choice exists, a reviewing court may not weigh the evidence or reject the choice made by the administrative agency.

Finding that there was substantial evidence supported the determination of the appointing authority that the employee committed certain acts of misconduct or insubordination, the court sustained the appointing authority’s decision. As to the penalty imposed, dismissal, the Appellate Division said that the penalty did not constitute an abuse of discretion as a matter of law “as it was not so disproportionate to the offenses as to be shocking to one's sense of fairness,” citing Kreisler v NYC Transit Authority, 2 NY3d 775.

Similarly, the Appellate Division affirmed a decision of the New York City Commissioner of Police that found a New York City police officer guilty of various disciplinary charges and dismissed him from employment as a police officer.

The court said that substantial evidence supported the Commissioner’s findings that the officer had [1] engaged in misconduct in two separate incidents and [2] that he gave false statements to the Civilian Complaint Review Board which investigated one of the incidents.

The officer had also admitted that he failed to properly secure his off-duty firearm and that he was in possession of an unregistered weapon belonging to his brother.

Citing Berenhaus v Ward, 70 NY2d 436, the Appellate Division said “There exists no basis to disturb the credibility determinations of the Assistant Deputy Commissioner of Trials” and the penalty imposed, termination of the police officer from his position, did not shock the court’s “sense of fairness,” citing Kelly v Safir, 96 NY2d 32.

These decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_02963.htm and:

http://www.nycourts.gov/reporter/3dseries/2015/2015_03040.htm

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A Reasonable Disciplinary Penalty Under the Circumstances - a 442-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition, and as an e-book. For more information click on

http://booklocker.com/books/7401.html

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Public policy favors the protection of employees’ seniority rights

Public policy favors the protection of employees’ seniority rights

Appeal of Alexander and Gonzalez from action of the Board of Education of the East Ramapo Central School District, Augustina West and Dionne Olamiju regarding termination of employment. Decisions of the Commissioner of Education, Decision No. 16,731

Angela Alexander (Alexander) and Madeline Gonzalez (Gonzalez) appealed the decisions of the Board of Education of the East Ramapo Central School District (Board) to terminate their services as administrators in the course of the abolishment of certain positions. The Commissioner of Education sustained their appeals.

Alexander was granted tenure in the tenure area of “Elementary Assistant Principal,” effective August 19, 2005; Gonzalez was granted tenure in the tenure area of “Elementary Assistant Principal,” effective July 1, 2005.

During the 2011-2012 school year, the school district excessed all elementary assistant principals as well as the two least senior secondary principals, effective June 30, 2012. Alexander and Gonzalez were notified that their positions as Elementary Assistant Principals were abolished and that their employment was terminated effective June 30, 2012. Alexander and Gonzalez filed an Article 78 proceeding in Supreme Court, Rockland County, seeking a determination that they were improperly terminated from their positions as Assistant Principals. Supreme Court dismissed the petition on the grounds that the Commissioner of Education had primary jurisdiction* over the dispute.

Alexander and Gonzalez contended that they hold tenure in the broader “Assistant Principal” tenure area and that the Board wrongfully granted them tenure in the more narrow area of “Elementary Assistant Principal” without their written consent. In addition, they argued that the Board’s decision to excess principals according to their seniority using the narrower tenure area violates applicable law and that they more senior than the two individuals who were continued in service.**

Initially the Commissioner addressed the issue of timeliness of this appeal, explaining that “An unsuccessful attempt to litigate a dispute in court which does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner when the appeal is commenced within a reasonable time after the dismissal or abandonment of the court proceeding.” As Alexander and Gonzalez had commenced this appeal within 30 days of the Supreme Court’s decision, the Commissioner ruled the appeal was timely.

Addressing the merits of the appeal, the Commissioner noted that Education Law §3013(2) provides, in pertinent part, that when a position subject to this provision is abolished, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued.”

Although there are no clearly defined guidelines for determining the parameters of administrative tenure areas, a board of education may establish one district-wide administrative tenure area or multiple defined administrative tenure areas, the Commissioner noted that “Public policy favors the protection of employees’ seniority rights,” explaining that “As tenure areas narrow, seniority rights become less meaningful” while “As tenure areas broaden, seniority rights take on greater significance.”

Citing Steele v. Bd. of Educ. of the City of New York, 40 NY2d 456, the Commissioner said that where tenure areas have been narrowed the employer must demonstrate that it, in fact, established the narrow, specific, tenure area ‘consciously’ and ‘by design’ and that the employee has been sufficiently alerted to that fact.”

Here the Board carried the burden of proving its intention to create narrower, multiple defined tenure areas for its administrators and that Alexander and Gonzalez were sufficiently alerted to the fact. In order to establish that Alexander and Gonzalez belonged in the tenure areas claimed by the Board, the Commissioner said that Board had to show that it had “adequately demonstrated that at the time of their appointments, the two categories had “traditionally been treated separately” by the district, and that [Alexander and Gonzalez] were ‘sufficiently alerted to the fact [that] they were entering ... entirely separate and independent’ areas, apart from that of the broad ‘Assistant Principal’.”

The Board submitted an affidavit from its Assistant Superintendent of Personnel/Secondary Education and other records indicating that:

1. Since 2000, the district has granted tenure to assistant principals only in the administrative tenure areas of “Secondary Assistant Principal” and “Elementary Assistant Principal.” 

2. Prior to 2000, assistant principals were granted tenure in the following tenure areas: “High School Assistant Principal,” “Junior High School Assistant Principal” and “Elementary Assistant Principal.”

3. A May 2000 agreement between the district and the East Ramapo Building Administrators Association (ERBAA), Alexander's and Gonzalez’s recognized collective bargaining unit, whereby 11 administrative members then serving in the high school assistant principal tenure area and the junior high school assistant principal tenure area agreed to be placed in the new secondary assistant principal tenure area.  

However, said the Commissioner, the 2000 agreement “does not apply to [Alexander and Gonzalez] or the narrower tenure area of ‘Elementary Assistant Principal.’” Accordingly, the Commissioner ruled that the documentation submitted by the Board failed to demonstrate that Alexander and Gonzalez were sufficiently alerted of the district’s alleged determination not grant tenure in the “Assistant Principal” tenure area after 2000. 

Although the Board submitted a copy of a Memorandum of Understanding in which Gonzalez acknowledged she was “serving in the position of Elementary Assistant Principal” and there was an agreement to adjust her salary, the Commissioner said that “nowhere in this document does Gonzalez consent to serving in the ‘Elementary Assistant Principal tenure area’, which is the issue in this case” and that this documentation was “unpersuasive to demonstrate Gonzalez’s consent to change tenure areas."

Viewing the totality of the evidence presented, the Commissioner held that the Board’s actions fail to support a determination that, upon hiring, Alexander or Gonzalez were either apprised that their tenure area would be the “Elementary Assistant Principal” tenure area, or that they acquiesced to placement within a new tenure area. Tenure areas, said the Commissioner, are fixed at the time a person is appointed and cannot be applied retroactively without the person’s consent.  

Noting that the record clearly indicates that Alexander and Gonzalez were appointed to probationary positions in the “Assistant Principal” tenure area the Commissioner said that although Board’s minutes and Notices of Tenure served on Alexander and Gonzalez state that each was appointed to tenure in the “Elementary Assistant Principal” tenure area, the Board has not met its burden of demonstrating that Alexander and Gonzalez were sufficiently alerted to their appointment in the “Elementary Assistant Principal” tenure area at the time of appointment or that they consented to a change in tenure area after such appointment.  

Thus, in abolishing the elementary assistant principal positions, the Board was required to excess the administrator(s) “having the least seniority in the system within the tenure of the position abolished”

The Commissioner then remanded the matter to the Board for a determination of Alexander's and Gonzalez’s seniority rights in the assistant principal tenure area and, based on such seniority, their right to reinstatement in the district as assistant principals on July 1, 2012, in accordance with this decision, including whether Alexander and Gonzalez are entitled to be restored to tenured positions as an “Assistant Principal”, “effective July 1, 2012, with back pay and retroactive benefits.”

* The doctrine of primary jurisdiction provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges the court will stay its consideration of the matter until the relevant administrative agency has applied its expertise to the salient questions [Staatsburg Water Co. v Staatsburg Fire Dist., 72 NY2d 147].

** The School District contended that the two retained individuals were sent Notices of Tenure and of Appointment indicating that they received tenure as “Assistant Principals” but were actually tenured as Secondary Assistant Principals.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume54/d16731

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