NYMP Laws & Orders #10: Project Resist Summary Inquiry Petition Dismissed, Adams Defers to Courts on Reinstatement, State Education Dept. Extends Emergency COVID-19 Rules

City officials continued to evade questions about mandate policies and worker reinstatement in recent days, with the mayor deferring to courts and a Queens court pulling the plug on a judicial inquiry

Project Resist Summary Inquiry Petition Dismissed

A summary inquiry petition backed by the organization Project Resist was denied and dismissed yesterday. The petition used a provision of the New York City Charter, Section 1109, to call for a judicial inquiry into “the Respondents' violations and neglect of the law relating to reasonable accommodation policies and procedures applicable to the COVID-19 vaccine accommodation procedures.”

The case, Lubert-Smith et al. v. The City of New York et al., was filed in April 2024 by Project Resist attorneys Jimmy Wagner and Sofia Balile on behalf of seven New York City residents. The respondents included Mayor Eric Adams, Police Commissioner Edward Caban, outgoing FDNY Commissioner Laura Kavanagh, recently resigned head of NYC’s Law Department Sylvia Hinds-Radix, NYC Human Rights Commissioner Annabel Palma, and NYC Health Commissioner Ashwin Vasan.

The citywide panel that reviewed City workers’ reasonable accommodation appeals under the vaccine mandates was also on the list of respondents, along with the attorney who led it, Eric Eichenholtz. Most of the individual members of the citywide panel have not been publicly identified.

Had the petition been granted, the respondents and a raft of additional City officials involved in crafting and implementing mandate accommodation policies would have been compelled to appear in court to respond to the petitioners’ questions.

In denying the petition, Queens County Supreme Court Judge Kevin Kerrigan wrote that it failed to meet the criteria for a summary inquiry under section 1109. Kerrigan rejected the petitioners’ allegations and the evidence they presented to support them in court documents, writing that the petition “fails to allege any violation or neglect of duty and instead makes sprawling and not only unsubstantiated, but debunked statements unsupported by any admissible evidence.”

Kerrigan also described the issues raised as moot in light of the fact that the mandates are no longer in effect.

I expect to have more details soon on whether Project Resist plans to appeal and how it will move forward with other legal actions.

Mayor Adams Defers to Courts and Legislators on Reinstatement of City Workers Who Lost Jobs Under Vaccine Mandates

At a July 24 community event in the Bronx, NYC Mayor Eric Adams spoke about City worker shortages and the dignity of employment, calling upon the federal government to grant migrants who have recently arrived in New York City the legal right to work.

I was covering the event for my reporting channel on YouTube (@nycforyourself) and took the opportunity to ask the mayor whether he would also voice support for City Council Resolution 5, which supports state legislation that would reinstate New York City workers who lost their jobs under the COVID-19 vaccine mandates.

Adams declined to voice support for the resolution or reinstating workers, instead defending the City’s vaccine mandates and saying he would leave the matter to the courts and legislators before he and a press aide (who was off camera) ended the exchange. You can watch the full community event here.

State Education Department Acknowledges “Ongoing Staffing Challenges” with Extension of COVID-19 Teacher Certification Emergency Measures

In two notices published this week in the New York State Register, the New York State Education Department (NYSED) proposes extending emergency measures first introduced in 2020 to address teacher shortages. The reason given for both extensions is a need to address “ongoing staffing challenges.”

One of the measures extends the validity of Emergency COVID-19 Certificates. In May 2020, the New York State Board of Regents amended state regulations to create the certificates, which allowed teachers who received them to work in public schools without having taken the exams that are otherwise required for certification in specific subject areas. Teachers had to have completed required coursework and met all other requirements for certification in order to receive the emergency certificates.

At its July 2024 meeting, the New York State Board of Regents voted to extend the COVID-19 certificates that expire on August 31, 2024 or January 31, 2025 by pushing the expiration date of those certificates to August 31, 2025. The public notice in the state register explains: “This extension will allow candidates additional time to meet requirements for the next level certificate and give the Department time to complete certification reforms.”

The other emergency measure being extended is a regulatory change that allows teachers to give instruction in subjects that they do not have certification for. In the state of New York, public school teachers receive certification to teach in specific subject areas for which they have met requirements. Teaching outside of one’s area of certification is referred to as “incidental teaching.”

The state register notice explains the regulatory change:

At its December 2020 meeting, the Board of Regents permanently adopted regulatory amendments to increase the amount of incidental teaching permitted in schools from up to five classroom hours a week to up to 10 classroom hours a week during the 2020-2021 school year in response to the COVID-19 pandemic. Through incidental teaching, certified teachers can teach a subject not covered by their certificate when no certified or qualified teachers are available after extensive and documented recruitment.

The emergency measure was extended several times, and the new extension will allow it to continue through the coming school year, per the public notice:

The Department now proposes to extend the flexibility for incidental teaching again through the 2024-2025 school year. This proposal enables school districts to address ongoing staffing challenges by providing them with flexibility in making teaching assignments.

No public hearings on the extensions are scheduled, but both of the proposals have a public comment period of 60 days. Details about the rule proposals and how to submit comments are provided in the state register notices.

Laws & Orders is a periodic dispatch from the New York Mandate Podcast that gives a rundown of recent legal, regulatory, and policy developments related to the pandemic and its aftermath, with a New York focus.