Fraternization on the job

Fraternization on the job

OATH Index No. 391/14

Department of Correction (DOC) brought charges against a correction officer relating to her relationship with an inmate, the father of her children.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the officer failed to notify DOC about her pre-employment relationship with the inmate, brought her cell phone on post to speak with him, and engaged in unauthorized financial dealings and discussed official business with him.

AJJ recommended that the correction officer be termination from employment.

Other disciplinary actions taken against employees as a result of alleged fraternization on the job are posted on the internet at:

https://www.blogger.com/blogger.g?blogID=2591491714418426610#editor/target=post;postID=2387360772174492441;onPublishedMenu=allposts;onClosedMenu=allposts;postNum=0;src=link

https://www.blogger.com/blogger.g?blogID=2591491714418426610#editor/target=post;postID=1547486201416978885;onPublishedMenu=allposts;onClosedMenu=allposts;postNum=1;src=link

https://www.blogger.com/blogger.g?blogID=2591491714418426610#editor/target=post;postID=3375211098898902253;onPublishedMenu=allposts;onClosedMenu=allposts;postNum=2;src=link

and

https://www.blogger.com/blogger.g?blogID=2591491714418426610#editor/target=post;postID=1653545811964041537;onPublishedMenu=allposts;onClosedMenu=allposts;postNum=3;src=link

Decision 391/14 is posted on the Internet at:

http://archive.citylaw.org/oath/14_Cases/14-391.pdf
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BOCES takeover of school district positions

BOCES takeover of school district positions

Decisions of the Commissioner of Education, Decision No. 16,592

A tenured certified physical education and health teacher [Petitioner] taught in a .2 physical education and .8 health position. Subsequently the school district reduced her position to a .5 health teacher position and ultimately Petitioner was notified that “due to fiscal resources” the board had adopted a resolution abolishing the .5 position and that her name would be placed on a preferred eligible list.

Learning that teachers employed by a BOCES would teach physical education in kindergarten through fifth grade in the district in the following academic year, Petitioner filed an appeal with the Commissioner of Education contending that the school board had  “improperly circumvented her tenure and seniority rights” by making an improper arrangement with the BOCES to provide teachers to teach the courses she had previously taught.

In addition, Petitioner alleged that the school district “improperly assigned” another physical education teacher in the district to teach seven physical education classes in violation of the terms of the relevant collective bargaining agreement.

Petitioner also argued that because BOCES took over “a single teaching job” and not the district’s entire physical education program, there was no permissible BOCES takeover within the meaning of Education Law. 

After addressing a number of procedural matters, the Commission addressed the merits of Petitioner’s allegations and dismissed her appeal.

Noting that Petitioner had the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which Petitioner sought relief, the Commissioner held that Petitioner failed to meet these burdens.

The Commissioner explained that Education Law §1950 provides that a BOCES “for the purpose of carrying out a program of shared educational services in the schools of the supervisory district ... at the request of component school districts and with the approval of the Commissioner of Education,* may provide certain services on a cooperative basis, including physical education services.”

Further, said the Commissioner, “prior case law has held that an entire tenure area need not be transferred to a BOCES in order to constitute a permissible BOCES takeover.”

Accordingly, the Commissioner ruled that the school district’s transfer of its pre-kindergarten through fifth grade physical education classes to the BOCES, while retaining physical education for grades six through twelve constitutes a permissible takeover by the BOCES within the meaning of Education Law §3014-a.

Turning to Petitioner’s claim that the takeover was invalid because a district teacher continued to teach seven physical education classes in alleged violation of the collective bargaining agreement, the Commissioner found that “upon the record” before him it appears that relevant provision of the district’s collective bargaining agreement permitted the challenged assignment.

Petitioner, said the Commissioner, also failed to demonstrate that the transfer to the  BOCES of the school district’s pre-kindergarten through fifth grade physical education program was for an illegal purpose.

The school district had indicated that that the takeover of the elementary physical education program by the BOCES was expected to result in a significant cost savings to the district. Although Petitioner disputed the actual cost savings, the Commissioner said that she had not met her burden of establishing that school district’s expectation of savings was a ruse for an illegal purpose.

The bottom line: The Commissioner held that “After careful review of the record, I can not conclude that the BOCES takeover of [the school district’s] pre-kindergarten through fifth grade physical education program, pursuant to Education Law §3014-a, was impermissible.” Thus abolishing Petitioner’s position and her placement on its preferred eligibile list was ruled proper.

* The records of the Education Department revealed that, pursuant to Education Law §1950(4)(d)(1) and (4)(bb), a cooperative services application was approved for the BOCES to provide, among other things, shared itinerant physical education services to component districts, including Petitioner’s school district.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16592.pdf
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Factors considered by the courts in determining if an individual is an employee or an independent contractor for the purposed of membership in a retirement system

Factors considered by the courts in determining if an individual is an employee or an independent contractor for the purposed of membership in a retirement system

2014 NY Slip Op 01234, Appellate Division, Third Department

An attorney [Petitioner] provided legal services to a central school district on a part-time basis from 1969 until his retirement in 2006. Following a review of Petitioner's relationship with the school district the Comptroller determined that Petitioner was an independent contractor and not an employee and, therefore, was not entitled to membership in the New York State and Local Employees' Retirement System and thus ineligible for retirement pension benefits.

Plaintiff appealed and the Appellate Division said that “on this record, we cannot conclude that the Comptroller's determination that Petitioner was an independent contractor and not an employee of the school district was supported by substantial evidence” and annulled the Comptroller’s decision.

The Appellate Division explained that it had recently said that “[w]here professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship," citing Mowry v DiNapoli, 111 AD3d 1117. Rather, said the court, “such an employment relationship may be evidenced by control over important aspects of the services performed other than results or means"

In other words, said the court, "over-all control is sufficient to establish the employee relationship where [professional] work is concerned."

Factors considered by the Appellate Division in vacating the Comptroller’s decision included:

1. Testimony by the school district's former superintendent, who worked with Petitioner for nearly four decades, that during his tenure he supervised all staff at the school district, including Petitioner and Petitioner was required to attend all regular and special meetings as part of his employment;

2. Petitioner's biweekly paycheck included withholdings for FICA, Medicare, and federal and state income taxes;

3. Petitioner received health insurance benefits and participated in a tax shelter annuity program that was available to employees of the school district;

4. Although Petitioner did not have set hours, both he and the former superintendent testified that he was available on an as-needed basis.

5.Petitioner would receive a paycheck for a pay period even if he did not perform work for the school during that period;

6. Petitioner was required to report to the Superintendent of the school district, as well as the school district's Board of Education, and his work was subject to approval by the Board;

7. Petitioner was reappointed every year at annual reorganization meetings and took an oath of office annually; and

8. Although Petitioner used his own law office and staff, the competent testimony established that Petitioner was provided with school stationary and that, on occasion, he used school facilities and resources.

In contrast, the court said that the Retirement System relied on the testimony of two employees of the Comptroller, both of whom admitted that they neither spoke with Petitioner nor his former or current supervisors and although the Retirement System also relied on information retrieved from current employees at the school district's administrative offices, none of these employees testified at the hearing.

Noting that the Retirement System failed to provide testimony from anyone with direct knowledge regarding Petitioner's engagement with the school district, the Appellate Division ruled that the Comptroller's determination was not supported by substantial evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01234.htm
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In an action for alleged defamation by a public official distinguishing actionable fact from a protected expression of opinion is a question of law

In an action for alleged defamation by a public official distinguishing actionable fact from a protected expression of opinion is a question of law

2014 NY Slip Op 01369, Appellate Division, Third Department

As the election season approaches, this decision by the Appellate Division addressing an appeal for alleged “defamation” may prove instructive to those involved in the process of electing a candidate to public office.

A candidate for election to public office [Plaintiff] sued another individual holing public office [Defendant] for defamation after Defendant place a political ad in a newspaper that Plaintiff alleged was defamatory. Defendant action following the placement of an ad in a newspaper by an alleged committee to elect Plaintiff that Defendant, in his counter-suit, contended was defamatory.

When Defendant’s motion for summary judgment* was denied by Supreme Court, Defendant appealed.

The Appellate Division dismissed Defendant’s appeal noting that “… [Defendant] essentially acknowledged at his deposition that he had no basis for some of his accusations, and when this proof is viewed most favorably to the non-movant, [here the Plaintiff] there is adequate evidence in the record to raise a triable issue of fact regarding whether [Defendant] acted with actual malice.

The Appellate Division said that Plaintiff was a public figure and, as such, he must prove by clear and convincing evidence that the Defendant made a false statement with actual malice. The court explained that “Distinguishing actionable fact from a protected expression of opinion is a question of law in which several factors are weighed, including:

1. Whether the allegedly defamatory words have a precise meaning that is readily understood,

2. Whether the statement can be proven as true or false, and

3. Whether the context and surrounding circumstances would indicate that the comment is an opinion.”

The Appellate Division said that Defendant's statement included both a strong inference that Defendant “knows undisclosed facts that support his assertion” that Plaintiff engaged in "numerous unscrupulous dealings" when he previously served in an elective office and included an example that indicated possible unlawful abuse of that office.

Accordingly, the Appellate Division said that it agreed with Supreme Court that Defendant's statements were sufficiently susceptible to a defamatory meaning to avoid summary judgment.

* The Appellate Division noted that summary judgment dismissing a defamation action “may be avoided where the statement is a ‘mixed opinion' implying a basis in undisclosed fact or ‘pure opinion’ that accuses the plaintiff of engaging in criminal conduct."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01369.htm

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Department not liable for injury to police officer using gym equipment during his or her lunch hour that it had not provided

Department not liable for injury to police officer using gym equipment during his or her lunch hour that it had not provided

2014 NY Slip Op 50158(U), Supreme Court, Queens County [Not selected for publication in the Official Reports]

In an action to recover damages for personal injuries allegedly sustained by a police officer [Plaintiff] when he fell due to an allegedly insufficient amount of space between the exercise equipment in the gym of a New City Police Department precinct [NYPD], State Supreme Court Judge Phyllis Orlikoff Flug noted that New York General Municipal Law (GML) §205-e provides a police officer with the right to recover for injuries sustained "while in the discharge or performance at any time or place of any duty imposed by the police commissioner, police chief or other superior officer of the police department."

Judge Flug concluded that GML §205-e was not relevant in this instance and granted the City’s motion to dismiss Plaintiff’s claim.

The court noted that in his deposition Plaintiff said that the accident occurred while he was using the gym in the precinct during his lunch break and that he was not under any duty to use the gym. Thus, explained the court, “Plaintiff fails to raise a triable issue of fact in opposition [to the City’s motion and] the mere fact that he was wearing his uniform and [was] ‘on call’ at the time of the accident does not demonstrate that he was injured while in the discharge or performance of a duty imposed on him.”

The court also ruled in favor of the City with respect to Plaintiff's common law negligence cause of action.

Here, said Judge Flug, a defendant seeking summary judgment in a slip-and-fall case has the initial burden of making a prima facie showing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

The City had established that it did not create the allegedly defective condition by submitting the deposition testimony of a police officer employed in the building maintenance section of the NYPD who stated that, in his experience, “the precinct gyms are set up by individual officers on a voluntary basis, not the NYPD or the City.”

As Plaintiff failed to raise a triable issue of fact in opposition, the court ruled that as the police officers were acting on a voluntary basis in setting up the gym, the City cannot be held liable for their actions in allegedly creating the defective condition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_50158.htm

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Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 1, 2014

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli during the week ending March 1, 2014

Click on text highlighted in color  to access the full report

Comptroller DiNapoli Releases State Audits

New York State Comptroller Thomas P. DiNapoli Tuesday, February 25, 2014  announced his office completed audits of:

the Town of Clarence;

the Town of Clarkson;

the Village of Monticello;

the Orleans County;

the Village of Oxford;

the Town of Reading;

the Richmond Fire District;

the Rotterdam Princetown No. 5 Fire District;

the Town of Scio;

the Town of Sheridan; and

the Snyder Fire District.

DiNapoli: Governor Cuomo’s Proposed Budget Continues Fiscal Progress

The Executive Budget continues efforts to control costs while tackling tough issues, according to a report released Monday, February 24, 2014, by State Comptroller Thomas P. DiNapoli. The report also points out that details are lacking on spending changes required for balance in the coming years.

DiNapoli and Schneiderman Announce Arrest in $87K Contractor Theft

State Comptroller Thomas P. DiNapoli and Attorney General Eric Schneiderman Friday, February 28, 2014 announced the arrest of Department of Health contractor George Dunkel for stealing more than $87,000 by padding bills to pay for hotels, education credits and other expenses.

DiNapoli Audit Finds Problems with Arts Education in NYC Schools

New York City public high school students are not getting the arts education required by state regulations, according to an audit released Friday, February 28, 2014 by New York State Comptroller Thomas P. DiNapoli.

DiNapoli: Local Sales Tax Collections up $739 Million in 2013

Local sales tax collections of $14.9 billion grew by $739 million in 2013, an increase of 5.2 percent from 2012, according to a report issued Thursday, February 27, 2014 by State Comptroller Thomas P. DiNapoli. The increase outpaced annual growth rates of 3.3 percent in 2012 and 5 percent in 2011, as well as the 15–year annual average growth of 4.5 percent.

DiNapoli: After–School Provider Misused $194,320 in Public Funds

The SCO Family of Services, a provider of extended school day programs for the State Education Department, submitted $194,320 in reimbursement claims for expenses that were unnecessary, not allowable or unrelated to its programs, according to an audit released Wednesday, February 26, 2014 by New York State Comptroller Thomas P. DiNapoli.

DiNapoli Announces State Contract & Payment Actions for January 2014

State Comptroller Thomas P. DiNapoli announced Tuesday, February 25, 2014 his office reviewed 2,126 contracts valued at $13.9 billion and approved more than 1.5 million payments worth more than $10 billion in January 2014. His office also rejected 191 contract transactions valued at $348.7 million and 1,735 payments valued at nearly $1.1 million due to fraud, waste or other improprieties.
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2014 editions of electronic books [e-books] focusing on New York State and Municipal Public Personnel Law published

The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

The Layoff, Preferred List and Reinstatement Manual - a 600+ page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions. For more information click on http://booklocker.com/books/5216.html

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click on http://nypplarchives.blogspot.com/

General Municipal Law§§ 207-a and 207-c - Disability Leave for fire, police and other public sector personnel - a 1100+ page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder. For more information click on http://booklocker.com/books/3916.html

Delay in terminating an employee

Delay in terminating an employee
2014 NY Slip Op 00265, Appellate Division, Third Department

In Mendez v Valenti, 101 AD2d 612, the Appellate Division held that retaining Mendez, a probationary employee, on the payroll after the maximum period of his probation until the end of payroll period for administrative convenience did not result in his attaining tenure in the position.

The Court decided that, under the circumstances, keeping Mendez on the payroll was permissible in view of the fact that it was of a short duration; was for "administrative convenience;" and Mendez had been provided with timely prior notice of that he would be terminated at the end of his probationary period.

In Cappello the Appellate Division applied a similar rationale in overturning a decision by the Unemployment Insurance Appeals Board granting an individual [Claimant] unemployment insurance benefits.

According to the decision, the employer dismissed Claimant after determining that she had violated the employer's policy and committed theft. Claimant was initially disqualified from receiving unemployment insurance benefits on the ground that she lost her employment through misconduct, and this decision was upheld by an Administrative Law Judge following a hearing.

The Unemployment Insurance Appeal Board, however, reversed this decision and found that claimant was entitled to receive benefits. The Board ruled that Claimant did not lose her employment due to misconduct because the employer delayed in terminating her after learning of her actions and did not provide a reasonable excuse for the delay.

The employer appealed and the Appellate Division vacated the Board’s ruling.

The Court explained that the Board’s conclusion was not supported by the record as upon the employer becoming aware of Claimant's inappropriate conduct it immediately proceeded to conduct an investigation, obtaining a statement from one employee and subsequently obtained a statement from Claimant about a month later  “as part of its continuing investigation.” Less than two weeks after obtaining Claimant’s statement the employer terminated for violating the employer’s policy.

The Appellate Division said that “[u]nder the circumstances presented” it did not find that the employer had engaged in an inordinate delay in terminating Claimant such that it could not rely upon her misconduct as the reason for her discharge.

Noting that it is well settled that an employee's dishonesty or failure to comply with an employer's policy and procedures constitutes disqualifying misconduct, here, said the Appellate Division, the evidence is undisputed that Claimant violated the employer's relevant policy. Accordingly, explained the court, “[g]iven [Claimant’s] misconduct, substantial evidence does not support the Board's decision that she was entitled to receive benefits” and reversed the Board’s decision.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2014/2014_00265.htm

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The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation

The doctrine of Absolute Privileged attaches to an allegedly defamatory memorandum published in the context of ongoing litigation

2013 NY Slip Op 52290(U), Court of Claims [Not selected for publication in the Official Reports]

An individual [Petitioner] who worked at a state correctional facility filed a claim “sounding in defamation per se” alleging that an article appeared in the print and the on-line versions of a newspaper included statements attributed to a State official that disparaged Petitioner.

Eventually it was determined that alleged defamatory statements were made by a state employee and had been “acquired by a non-State actor,” which person gave it to one of the newspaper’s reporters.

According to the decision, an Assistant Attorney General involved in the instant matter provided a copy of the employee’s memorandum to an attorney, apparently the alleged “non-State actor,” involved in a related matter then pending in federal court.

The Court of Claims “assumed without deciding” that Petitioner’s proposed amended claim satisfied the threshold jurisdictional requirements of being timely filing and served within the relevant statute of limitations and that it satisfies the substantive pleading requirements of Court of Claims Act §11(b).

The court then denied Petitioner’s motion to amend his claim explaining that the alleged tortious conduct — the Assistant Attorney General’s “publication (or republication) of the [State employee’s] memorandum to [the attorney in the federal action] is not actionable because it was absolutely privileged,”* as “Statements made in the course of judicial proceedings are absolutely privileged … and absolute privilege will attach if the allegedly defamatory statements were ‘pertinent’ to the questions involved in the judicial proceeding.”

Further, explained the court, "Whether a statement is at all pertinent . . . is determined by an extremely liberal test" and  "To be actionable, a statement . . . must be so outrageously out of context as to permit one to conclude, from the mere fact that the statement was uttered, that it was motivated by no other desire than to defame."

As the Court of Appeals held in Youmans v Smith, 153 NY 214, “The purpose of the absolute privilege afforded to communications made in the course of judicial proceedings is well established and clearly stated: the due process of ‘clients should not be imperiled by subjecting their legal advisers to the constant fear of suits for libel or slander.’"

Accordingly, said the court, the Assistant Attorney General’s actions in turning over the allegedly defamatory memorandum in the context of ongoing litigation are entitled to the absolute privileged, provided that the alleged defamatory statements were pertinent to the litigation, which, in this instance, the court found were so pertinent.

* The Court of Claims noted that "Absolute privilege has been recognized in a very few situations where there is an obvious policy in favor of permitting complete freedom of expression, without any inquiry as to the defendant's motives.” However, in Amato v. Welsh, 2013 ONCA 258, a decision handed down by Canada’s Court of Appeals for Ontario, suggests an exception to the doctrine. The Amato decision suggests that it may be possible for a court to find that the doctrine of absolute immunity yields to the attorney’s duty of loyalty to a client [see paragraphs 61 et seq. set out in the decision].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_52290.htm

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Governor Andrew M. Cuomo announces new appointments within his administration

Governor Andrew M. Cuomo announces new appointments within his administration.
Source: Office of the Governor

Governor Cuomo on Tuesday, February 25, 2014, announced the appointments of Margaret Egan and Linda Cohen to his administration.

Margaret Egan will serve as Assistant Secretary for Public Safety. Ms. Egan served as the Director of Policy & Government Affairs to Cook County Sheriff Tom Dart from 2012 to 2014. In that role Ms. Egan was responsible for developing and managing crime policy, social services and the legislative strategy for the nation’s largest single site jail and one of the largest police departments in Illinois. She developed and led the implementation of the Affordable Care Act for the Sheriff making the Cook County Jail the first jail in the nation to enroll detainees under Medicaid expansion, which has now become a model for jails across the country. Additionally she led efforts to improve correctional based education programming for school aged and adult detainees. She also developed projects around firearms tracing and trafficking throughout suburban Cook County.

Linda J. Cohen, Esq., will serve as Executive Director for the State Commission on National and Community Service. Prior to joining the Commission, Ms. Cohen served for a dozen years as Executive Director of the New York State Corps Collaboration, where she was responsible for one of the nation’s largest AmeriCorps programs. She also served as Executive Director of the New York State Dispute Resolution Association, as a contributing writer for Inside Sports Magazine and in various positions within all three branches of New York state government. She is a graduate of Union College, Albany Law School and the National Law Center at George Washington University.
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