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An Albany appellate panel Thursday upheld a contempt citation levied against the New York City Board of Education for its refusal to abide by a court order and reinstate a former Brooklyn school superintendent wrongly ousted nearly six years ago. In Board of Education of the City School District of the City of New York v. Mills, 98017, the Appellate Division, 3rd Department, suggested the city was grasping at legal straws in an attempt to avoid putting Robert E. Riccobono back on the payroll. Riccobono was among five superintendents purged in 1999 by then-Chancellor Rudy Crew in what amounted to an effort to shake-up allegedly poor-performing schools. However, shortly after Riccobono was summarily fired — in violation of his due process rights, the courts previously ruled — a standardized testing company admitted it erred and that tests in his district, Community School District 19 in East New York, Brooklyn, were actually on the upswing. State Education Commissioner Richard P. Mills, in a rare intervention in internal school affairs, overturned Riccobono’s dismissal and ordered him reinstated, with back pay and benefits. However, by that time, Riccobono’s one-year contract had expired and the school board insisted that it was responsible only for a single year of back pay and was under no obligation to rehire the former superintendent. After still refusing to reinstate Riccobono, the board was held in contempt by Supreme Court Justice John Connor of Hudson. On Thursday, the 3rd Department unanimously affirmed Justice Connor, describing as “strained” the city’s effort to characterize Mills’ order as ambiguous. “In our view, petitioners are attempting to create an ambiguity where none exists,” Justice D. Bruce Crew III wrote for the panel. “The obligation to restore respondent to his status as a paid employee of the school district and tender back pay is not … conditioned upon the terms of respondent’s now expired employment contract, and the Commissioner’s mandate in this regard is not, as petitioner’s argue, subject to competing interpretations.” Riccobono’s attorney, David Dretzin of Anderson, Kill & Olick in Manhattan, said the school board could have settled years ago for a fraction of what it now apparently owes his client. In addition to several years of back pay at about $141,000 per year — minus the “nominal” earnings Riccobono has accrued since then as an adjunct faculty member at New York University — Dretzin said he will seek interest and attorney’s fees. Further, a federal civil rights claim is pending, he said. “It is astonishing to me,” Dretzin said. “The whole thing could have been settled very early on.” He said reinstatement is significant in that it will impact Riccobono’s pension. The city school district and school board were represented by Assistant Corporation Counsel Elizabeth I. Freedman, a senior counsel in the appeals division. “We strongly disagree with the court’s opinion and are reviewing our legal options,” Freedman said. Joining the decision were Presiding Justice Anthony V. Cardona, Karen K. Peters, Edward O. Spain and Anthony T. Kane. Also, the 3rd Department held that the wearing of union insignia by off-duty and out-of-uniform police officers is a protected activity that the Division of State Police cannot restrict. Matter of State of New York v. Police Benevolent Association of the New York State Troopers Inc., 98294, stemmed from an incident in which several members of the PBA attended the criminal trial of a former colleague, wearing small union pins on their lapels. The officers were neither on duty nor in uniform, but after the trial — at which the former trooper was acquitted — the prosecutor complained in a letter to the PBA president. That apparently prompted the Division of State Police to issue a directive forbidding troopers from wearing union insignia while assisting the defense in any criminal trial. INTERPRETATION CHALLENGED After an administrative law judge ordered the state to rescind the order, and the Public Employment Relations Board affirmed, the state challenged PERB’s interpretation of Civil Service Law �202. PERB had found that �202 gave PBA members the right to wear union insignia while on union business, especially if they are off-duty and out-of-uniform, unless there are special circumstances. The Public Employment Relations Board found no such special circumstances, and neither did the Appellate Division, 3rd Department. Writing for the 4-0 panel, Justice Anthony J. Carpinello noted at the outset that PERB’s interpretation of �202 is “entitled to great deference by this Court.” He found nothing to indicate that the protected right to wear union insignia was outweighed by any special circumstances. “Simply stated, insufficient evidence was provided to support petitioner’s justification for the directive, namely, that the working relationship between the State Police and the District Attorney offices will be adversely affected if PBA members are permitted to wear insignia under these circumstances,” Carpinello wrote. He was joined by Presiding Justice Cardona and Justices Robert S. Rose and Kane. Stephen G. DeNigris of Washington, D.C., argued for the PBA. Assistant Attorney General Shaifali Puri defended the Division of State Police. Sandra M. Nathan of Albany appeared for the Public Employment Relations Board.

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