A Primer on Why Recents Actions of the Board of Education Regarding School Security Personnel is Illegal

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A Primer on Why Recents Actions of the Board of Education Regarding School Security Personnel is Illegal

December 12, 2010 - 18:42

The following are remarks I made to the Board of Education at the most recent Board of Education meeting on December 7, 2010. The speech was meant to address the scheduled vote on Resolution 11-183. Minutes before the scheduled vote, the Board announced that Resolution 11-183 was being pulled from consideration without explanation. Based on past performance, the Board of Education discussed the matter during an Executive Session prior to the public meetings. The declared purpose of the executive session was to discuss a student appeal. It is illegal under New York State's Open Meeting Law to do anything other than discuss the declared subject of an executive session during executive session and, of course, to discuss public business in executive session. Such illegal meetings are routine for the New Rochelle Board of Education and this past meeting appears to have been no exception.

Now, to my remarks made last Tuesday:

Before the Board considers Resolution 11-183 it would be instructive to look back to understand WHY, precisely, this matter ever came before the Board of Education in the first place.

In 2007 and on into 2008, New York State Attorney General Andrew Cuomo investigated abuses occurring in the state's employee pension system. Cuomo found widespread abuse including independent contractors getting pensions and recently retired school district employees returning to their same positions and receiving both pension and salary -- a practice hardly unknown here in New Rochelle.

In March 2008, Governor David Patterson approved a law, effective October 7, 2008 that implemented a number of important changes to both the Retirement & Social Security Law and State Education Law. The changes were designed specifically to ensure that the public is "protected from improper 'double-dipping,'"

Under these changes, known as "Chapter 640", Section 211 was amended so that in order to obtain a 211 waiver, the prospective employer must show that qualified, non-retired persons are not available for recruitment and places various other constraints on obtaining 211 waivers.

Employers typically request the waivers from the Civil Service Commission, which has the authority to grant them for a maximum period of two years.

When requesting a waiver, participating employers must also now prepare detailed recruitment plans and show either that there is an urgent need, as the result of an unplanned, unpredictable and unexpected vacancy, where sufficient time is not available to recruit any available non-retired personnel, or extensive recruitment efforts did not find any available qualified non-retired persons. The hiring must also be deemed to be temporary, rather than a final filling of the position.

The Board should be well-familiar with these changes to the granting of 211 waivers because I have read aloud these changes to the statute on three prior occasions, this being the fourth time in the last fourteen months.

I know that Schools Superintendent Richard Organisciak and his assistant superintendents are well aware of this because they received a memo from Johanna Duncan-Poitier of the New York State Education Department on December 10, 2008 which emphasized the new requirements under the law.

Duncan-Poitier wrote:

"It is also important to reiterate that, when seeking a waiver for any position, a district must undertake a thorough and good faith recruitment search for a certified and qualified individual who is not retired, or otherwise demonstrate that there is an urgent need for a retiree’s services as a result of an unplanned, unpredictable and unexpected vacancy, and comply with the regulations and law in all other respects.  The retiree will also need to comply with any requirements made by the retirement system of which the person is a member."

Chapter 640 did "grandfather" in employees who had previously obtained a 211 Waiver but this does not apply to New Rochelle as none of the security personnel obtained such waivers.

Chapter 640 also adds a new Section (217) to the Retirement & Social Security Law which requires all school districts to annually report the current positions and earnings of the retirees they employ. Furthermore, Chapter 640 amends the SEL, in part, by requiring all school districts to make their annual expense information available on a website or at a public library.

Chapter 640 creates additional civil and criminal enforcement remedies.

One year after Governor Patterson issued his memorandum of approval for Chapter 640, he received a report from the Inspector General regarding an investigation of the state Department of Taxation and Finance which found that a former acting commissioner illegally secured tenured state jobs for herself and nine other lawyers by manipulating civil service exams.


In response to the Inspector General’s report, on March 24, 2009, Governor Paterson announced, among other initiatives designed to protect the integrity of the testing process, the creation of a task force to study whether the results of the investigation were indicative of broader systematic abuse, whether existing safeguards are adequate, and whether alternative safeguards could be implemented to prevent future misconduct.

A focus of that investigation was state officials submitting job profiles customized for specific candidates under a certification declaring: “I certify this profile accurately reflects the duties of the position being filled, that the agency has a current position description supporting this profile, and that the elements of this profile were not developed with reference to any known candidate.”

Resolution 11-183, if approved by this Board, would set in motion a fradulent application for a 211 waiver and a civil service exam based on a job profile that has all the hallmarks of a custom designed job description intended to block candidates who were placed on an eligibility list for a previous exam and clear the way for only one candidate to be eligible for the position.

The series of 211 waivers, the questionable job descriptions, the ignored eligibility list all demonstrated a pattern of willful abuse of the New York State civil service law with which comes various civil and criminal penalties and now a complaint filed with the New York State Civil Service Commission and likely litigation from some if not all of the 12 people who took and passed the security and safety civil service exam last February.

Please vote "no" on this resolution and begin to end the practice of abuse of our civil service laws in New Rochelle.

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and more lawlessness in New Rochelle.