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Monday, November 30, 2009
Employer’s failure to investigate alleged sexual abuse after learning of its employee’s arrest excuses the filing of a late notice of claim
Matter of Trotman v Rochester City School Dist., 2009 NY Slip Op 08664, decided on November 20, 2009, Appellate Division, Fourth Department
Concluding that Supreme Court abused its discretion in denying Kyle O. Trotman's application for leave to serve a late notice of claim, the Appellate Division granted his application, ruling that Trotman’s “notice of claim is deemed timely served nunc pro tunc.”*
Conceding that Trotman did not offer a reasonable excuse for the delay in serving a notice of claim, the Appellate Division concluded that the delay was not fatal because the school district “had actual notice of the facts underlying the claim and was not substantially prejudiced by the delay.”
Here a student claimed that he was the victim of sexual abuse by an employee of the school district. As the record showed that the school district acquired actual knowledge of the abuse no later than January 2007, when the employee in question was arrested on criminal charges and was suspended without pay. Under the circumstances, said the court, “There is no support for the conclusory assertions of [the school district] that the delay in filing the notice of claim impeded its ability to investigate the incident or to interview witnesses.
The Appellate Division commented that “Once respondent was advised of the criminal charges asserted against its employee, [the school district] should have conducted a prompt investigation of the incidents underlying the charges.” As it did not undertake any such investigation, said the court, it “cannot now be heard to complain that the late filing of [the] claim will prejudice its preparation of a defense."
* A ruling by a court that results an action being deemed as having been performed at a particular, earlier date.
Matter of Niagara Frontier Transp. Auth. v International Longshoremen's Assn., Local 2028, 2009 NY Slip Op 08379, decided on November 13, 2009, Appellate Division, Fourth Department
Niagara Frontier Transportation Authority v International Longshoremen's Association presents an interesting, if convoluted, series of post-arbitration maneuverings.
The Niagara Frontier Transportation Authority filed an Article 75 petition seeking to confirm an arbitration award while at the same time Local 2028 moved to compel the arbitration of a second grievance. Supreme Court Justice Donna M. Siwek granted Local 2028’s cross-motion to compel arbitration of the second grievance.
The Authority, however, had contended that the Local’s motion should have been dismissed. It claimed that “it was not seeking to stay arbitration of the second grievance but, rather, it merely sought a determination that the same arbitrator who decided the first grievance should also decide the second grievance.”*
Although Supreme Court granted the Authority’s petition to confirm the arbitration award, it denied the Authority’s motion that, in effect, sought leave to reargue the Local’s motion in Appeal No. 1. According to Authority, Justice Siwek should have denied the Local’s motion to compel arbitration of the second grievance on the ground of res judicata.
Ultimately the Appellate Division concluded that both appeals filed by Authority should be dismissed.
First, said the court, the Authority “is not an aggrieved party” with respect to Appeal No. 1 because it obtained precisely the relief that it sought.” As to its second appeal, the court ruled that Appeal 2, in effect, constituted a motion for leave to reargue, and no appeal lies from an order denying that relief.
* With respect to Local 2028’s motion, the court said it agreed with the Authority “that the same arbitrator should decide both grievances.”
Probationary period for newly appointed New York City sanitation workers changed from 12 months to 18 months
Matter of Nespoli v Doherty, 2009 NY Slip Op 08499, Decided on November 19, 2009, Appellate Division, First Department
Supreme Court Justice Marcy J. Kahn Harry dismissed Nespoli’s petition on behalf of the Sanitationmen's Union to annul the determination of Commissioner of the Department of Citywide Administrative Services (DCAS) John J. Doherty to increase the probationary period for newly appointed sanitation workers from 12 months to 18 months. The Appellate Division unanimously affirmed Justice Kahn’s ruling.
The New York City Sanitation Department had asked Doherty to establish a longer probationary period, contending that “the number of accidents, disciplinary complaints and arrests involving new sanitation workers is too high.” The Department’s rationale for its request: “A longer probationary period would enable Sanitation to weed out higher risk employees and increase training and experience.”
Commenting that there was no basis to conclude that the Department’s representation that extending the probationary period will reduce the numbers of accidents, disciplinary complaints or arrests involving newly appointed sanitation workers is irrational or a pretext for some arbitrary or bad-faith motive, the court said that New York City's personnel rules gives the DCAS's Commissioner the discretion to provide for a probationary period other than one year without engaging in any particular process of review.
The Appellate Division also noted that the two-year probationary period for police and corrections officers provides a benchmark for comparison, tending to show that an 18-month probationary period for sanitation workers is not excessive.
Deciding that the employee’s testimony did not make sense, hearing officer concluded the employee statements were untrue
Department of Corrections v Patterson OATH Index No. 2164/0
OATH Administrative Law Judge Faye Lewis recommended termination of Corrections Captain Reginald Patterson after finding that Patterson used excessive force towards an inmate and made multiple false statements and reports to cover-up the incident.
Weighing the consistent reports made by the inmate, the corresponding medical documentation, and the supporting testimony of the inmate's wife against Patterson’s testimony Judge Lewis said that they were more credible than Patterson’s “disjointed and inconsistent versions of the event.”
Commenting that Patterson’s version of the event “did not make sense,” ALJ Lewis concluded that Patterson “was lying to protect his job.”
Police officer suffering an injury in police station but not performing any job duty at the time ineligible for GML §207-c disability benefits
Matter of DiMeglio v Village of Briarcliff Manor, N.Y., 2009 NY Slip Op 08614, Decided on November 17, 2009, Appellate Division, Second Department
Linda L. DiMeglio, a police officer with the Village of Briarcliff Manor, appealed an arbitrator's award that sustained the Village’s decision denying DiMeglio disability benefits pursuant to General Municipal Law §207-c.
DiMeglio suffered injuries to her back and left knee as the result of a fall while she was changing into her uniform in the women's locker room of the police station.
Critical to the resolution of DiMeglio’s claim was the fact that her injury occurred before she had begun her tour of duty.
The Appellate Division noted that as DiMeglio “herself stipulated during the arbitration hearing that she ‘was not performing any job duty or taking any other action listed on the job description form’ at the time of her injury.” This admission, said the court, constituted “substantial evidence in the record.”
Accordingly, the Appellate Division ruled that DiMeglio was not eligible for benefits pursuant to General Municipal Law §207-c and sustained the arbitrator’s determination.
Claim alleging “detrimental reliance” on agreement with employer underlying tendering employee’s resignation dismissed
Boakye-Yiadom v Roosevelt Union Free School Dist., 2007 NY Slip Op 52657(U), decided on April 18, 2007, Supreme Court, Nassau County, Justice Daniel Palmieri
Kwame Boakye-Yiadom, the former Assistant Superintendent for Business for the Roosevelt Union Free School District ("District"), sued the District alleging breach of contract and "detrimental reliance" in tendering his resignation. Boakye-Yiadom also alleged that the District defamed him.
As to Boakye-Yiadom’s claim for breach of contract, he contended that he was entitled to payment for unused vacation and sick leave credits. His defamation claim alleged that the District's Superintendent, Ronald O. Ross, accused him of having embezzled District funds, constituting “slander per se.”
Boakye-Yiadom’s employment contract with the District, in relevant part, provided that vacation time would be earned at a stated rate, but that “Vacation days have NO cash value and may NOT be carried over into subsequent school years.” As to Boakye-Yiadom claims regarding sick leave, the employment contract, in relevant part, provided that payment for unused sick time may be made only to those individuals who "have at least 20 years of service with the district." Boakye-Yiadom did not claim he had at least “20 years of service” with the district and Justice Palmieri noted Boakye-Yiadom’s employment contract began in 2001, some five years before the events that led to this law suit.
In addition, Boakye-Yiadom claimed that he and Ross “entered into an agreement” that he would resign his position with the District, contingent upon payment of certain sums for unused vacation and sick days. However, in response to a letter Boakye-Yiadom sent to Ross “memorializing the alleged verbal agreement,” Ross stated that the School Board had accepted his resignation and agreed to the payment of accumulated sick and vacation days "to the extent such payments are approved by the State Education Department, as required by law."
The Department of Education did not approve the severance payment to which the Board had agreed and Ross was advised that authorization to pay the severance to the Boakye-Yiadom was denied.
Justice Palmieri said that this was a sufficient basis for dismissal of Boakye-Yiadom claims regarding the alleged breach of contract.
As to Boakye-Yiadom claim “sounding in defamation,” Justice Palmieri said that the claim “must be dismissed for failure to state a cause of action.” While Boakye-Yiadom’s petition alleges that Ross falsely accused him "to others" of embezzling $2.5 million, it did not name “the person or persons to whom the words were uttered, nor the time, place and manner of this statement, rendering the cause of action fatally deficient under CPLR 3016(a).”
Tuesday, November 24, 2009
An arbitration award must be upheld if there is some minimal justification for the decision reached by the arbitrator
Matter of Buffalo Teachers Fedn., Inc. v Board of Educ. of Buffalo City School Dist., 2009 NY Slip Op 08352, decided on November 13, 2009, Appellate Division, Fourth Department
In this contract grievance arbitration, the arbitrator determined that although the Buffalo City School District had violated a term set out in its collective bargaining agreement with the Buffalo Teachers Federation when it failed to provide the Federation with a written notice of disciplinary proceedings against a tenured teacher, “no remedy was warranted [as the Federation] had actual notice of the proceedings before the teacher's employment was terminated.”
Supreme Court had vacated the arbitrator’s award; the Appellate Division reinstated it.
The Appellate Division said that although the arbitration award referred to matters outside the record that was before the arbitrator, “the arbitrator's conclusion that [the Federation] was aware of the disciplinary proceedings is not irrational because it is supported by documentary evidence that was in the record before the arbitrator.”
According to the decision, the record contained a stipulation by the parties that the Federation’s grievance on behalf of the tenured teacher was dated July 10, 2003 but that Buffalo did not terminate the employment of the tenured teacher until July 16, 2003.
The court said that "[a]n arbitration award must be upheld when the arbitrator offer[s] even a barely colorable justification for the outcome reached," citing Wien & Malkin LLP v Helmsley-Spear, Inc., 6 NY3d 471, [Cert. Dismissed, 548 US 940].
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08352.htm
Dismissal of employee found guilty of misusing authority and mistreatment of patient recommended by hearing officer
Health and Hospital Corporation v Bellinger, OATH Index #133/10
In a disciplinary hearing, the Health and Hospitals Corporation proved that Joseph Bellinger, a hospital police sergeant, had used excessive force on a patient when he guided the patient into a control room and pushed him up against a wall. Although Bellinger had 16 years of service, OATH Administrative Law Judge John Spooner found that his misuse of authority and mistreatment of a patient demanded a severe penalty and recommended termination.
The decision is posted on the Internet at:
Firefighter’s Rule does not bar police officer accidentally shot in police locker room from suing for “common-law negligence”
Ferriolo v City of New York, 2009 NY Slip Op 08494, Decided on November 19, 2009, Appellate Division, First Department
Police officer Vincenzo Ferriolo was in the process of donning his uniform before beginning his tour of duty and conversing with another officer while a third police officer was moving a weapon from one locker to another. The weapon discharged and Ferriolo was injured.
The Appellate Division ruled that Ferriolo did not have a cause of action pursuant to General Municipal Law §205-e “predicated upon alleged violations of the Penal Law and the Labor Law” because no criminal charges were ever brought against the other police officer.
Further, said the court, Ferriolo did not come forward with compelling evidence that the other police officer’s conduct was criminally negligent or criminally reckless so as to overcome the presumption that the Penal Law had not been violated. In addition, the Appellate Division ruled that Ferriolo’s injury was not the injury the type of workplace injury contemplated by Labor Law §27-a.*
However, said the court, Ferriolo’s lawsuit alleging common-law negligence is not barred by the "firefighter's rule," because, while Ferriolo was present in the precinct locker room when other police officer’s weapon discharged. Ferriolo was not engaged in any specific duty that increased the risk that he would be shot.
* §27-a of the Labor Law addresses “Safety and health standards for public employees.”
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08494.htm
Jonathan G. Newell, et al. v. Susan Runnels, et al., Maryland Court of Appeals No. 48, Filed: March 13, 2009
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2009, All rights reserved http://lawprofessors.typepad.com/adminlaw/
The Maryland Court of Appeals begins an opinion with a quote from Machiavelli. Noting that he had suffered the rack for his support as a public official for an administration that had been replaced, the court "considers what has changed since Machiavelli's time" in connection with a lawsuit brought by discharged employees of the Caroline County States Attorney's office for their support of the losing incumbent. One of employees who had filed suit was the coordinator of the victim witness unit of the office; the other had served in that position and been promoted to senior district court coordinator.
Contributed by Mike Frisch
The full text of the decision is posted on the Internet at:
Two of the discharged employees, Susan Runnels and Marjorie Cooper sued the Newell and the State of Maryland as well as the County Commissioners for Caroline County alleging that their firings were unconstitutional because they were based on the employees having campaigned on behalf of another candidate in his unsuccessful bid for office.
In earlier cases, the Supreme Court declared that political considerations that resulted in the termination of an employee were unconstitutional except where political affiliation was critical to the individual's ability to satisfactorily perform his or her duties.
Examples of such rulings include Branti v Finkel, 445 US 507 and Elrod v Burns, 427 US 347. In addition, the US Supreme Court has ruled that it is unlawful to refuse to employ, promote or transfer a public employee because of his or her political affiliations unless those political affiliations are "an appropriate requirement" for the position involved [Rutan v Republican Party of Illinois, 497 US 62]. The Rutan ruling appears to be applicable in layoff and recall situations as well.
A U.S. Circuit Court of Appeals considered a claim that an Illinois deputy attorney general [DAG] was unlawfully terminated from his position because "he was a 52-year-old Greek Republican." Noting that the DAG conceded that "party loyalty" was a critical qualification for some DAG positions (but, presumably, not his), the Circuit Court said that when it comes to political affiliation, "if some DAGs can be terminated based on their political affiliation, all can be" [Americanos v Carter, 74 F.3d 138]. Put another way, this theory supports the argument that: "if some DAGs cannot be terminated based on their political affiliation, none can be." Is the glass half full or is it half empty?
Settlement of disciplinary charges
The Cohoes City School District filed disciplinary charges against a teacher alleging that she had allowed students to correct their incorrect answers in a district-wide mathematics proficiency test, thereby compromising the test’s validity.
The disciplinary action was settled prior to holding a Section 3020-a disciplinary hearing when the teacher agreed to:
1. Acknowledge that she had “inappropriately assisted students” in the examination;
2. Pay a fine of one month’s salary, $5,800; and
3. Accept reassignment as a “resource teacher.”
Penalties vary in such cases.
In an earlier case filed under the “old” Section 3020-a, a teacher was suspended without pay for one year after being found guilty compromising the integrity of a standardized examination [Decisions of the Commissioner of Education 11776].
The teacher had been charged with disclosing the essay topics of a standardized test to his class just prior to its participation in the “New York State Writing Test.” The Section 3020-a disciplinary panel found the teacher guilty of the charge and recommended a three-month suspension without pay. The school district, on the other hand, wished to have the teacher dismissed and appealed the panel’s recommendation to the Commissioner of Education.
The Commissioner agreed with the school board that the penalty imposed by the hearing panel was disproportionately lenient in light of the misconduct involved. But he said that he was not convinced that dismissal was the appropriate penalty.The Commissioner determined that a suspension without pay for one year was “commensurate with the offense and sufficient to serve as a deterrent to future misconduct”, explaining that primary purpose of a Section 3020-a disciplinary hearing is not punitive but rather to determine a teacher’s fitness to teach and carry out his or her professional responsibilities.
Monday, November 23, 2009
What is an “intangible right of honest service” within the meaning of 18 USC §1346 and where and when is it applicable?
18 U.S.C. §1346, the Honest Services' Law
In 1988 the federal “Mail Fraud and other Fraud Offenses Act, was amended, adding the so-called “Honest Services' Law” [18 U.S.C. Part I, Chapter 63, §1346].
This provision has been used by the United States Department of Justice to prosecute a number public officials, including a former New York State Senator, Joseph Bruno, for allegedly being involved in a "scheme or artifice to deprive another of the intangible right of honest services."
One possible issue for consideration by the courts: Is 18 U.S.C. §1346 unconstitutionally vague?”
§1346, in its entirety, provides as follows: Definition of “scheme or artifice to defraud” For the purposes of this chapter [i.e., Chapter 63*], the term “scheme or artifice to defraud” includes a scheme or artifice to deprive another of the intangible right of honest services. The term "honest services," however, is not defined in the statute.
Just what is “depriving another” of an “intangible right of honest service” insofar as public officials are concerned. Would it apply in a situation where one public employee is discussing the weather with another individual “during normal working hours” if neither the employee’s nor the other individual’s official duties include “weather related activities?” Would such an activity deprive the taxpayers of an “intangible right to honest services” for a portion of the offending employee’s “normal working hours?” Apparently Congress elected to have the courts define acts or omissions that constitute depriving another of his or her “intangible right of honest service.”
Another issue: Does §1343 apply to acts or omissions by individuals that do not involve or constitute interstate or foreign commerce?
Title 18, Part I, Chapter 1, sets out “General Provisions,” concerning certain crimes “against the United States.” Further, Title 18, Part 1, Chapter 1, §10, suggests that the application of Title 18 is limited to the crimes therein listed** when they involve “interstate commerce and foreign commerce.” As set out in Title 18, Interstate Commerce "includes commerce between one State, Territory, Possession, or the District of Columbia and another State, Territory, Possession, or the District of Columbia” while the term “foreign commerce” as used in Title 18 is defined as “including commerce with a foreign country.”
In any event, 18 U.S.C. §1341 sets out prohibitions against “Frauds and swindles.” It states, in pertinent part, that “Whoever, having devised or intending to devise any scheme or artifice to defraud, or for obtaining money or property by means of false or fraudulent pretenses, representations, or promises, or to sell, dispose of, loan, exchange, alter, give away, distribute, supply, or furnish or procure for unlawful use any counterfeit or spurious coin, obligation, security, or other article, or anything represented to be or intimated or held out to be such counterfeit or spurious article, for the purpose of executing such scheme or artifice or attempting so to do, places in any post office or authorized depository for mail matter, any matter or thing whatever to be sent or delivered by the Postal Service, or deposits or causes to be deposited any matter or thing whatever to be sent or delivered by any private or commercial interstate carrier, or takes or receives therefrom, any such matter or thing, or knowingly causes to be delivered by mail or such carrier according to the direction thereon, or at the place at which it is directed to be delivered by the person to whom it is addressed, any such matter or thing, shall be fined under this title or imprisoned not more than 20 years, or both.
* Chapter 63 presently consists of the following Sections: §1341; Frauds and swindles; §1342, Fictitious name or address; §1343, Fraud by wire, radio, or television; §1344, Bank fraud; §1345, Injunctions against fraud; §1346, Definition of “scheme or artifice to defraud;” §1347, Health care fraud; §1348, Securities fraud; §1349, Attempt and conspiracy; §1350, Failure of corporate officers to certify financial reports; and §1351, Fraud in foreign labor contracting.
** Title 18, Part I, sets out various "Crimes" and ranges from crimes involving "Aircraft and Motor Vehicles" [Chapter 2] to crimes involving the "Release and Use of Certain Personal Information from State Motor Vehicle Records" [Chapter 123].
Arbitration award issued by an arbitrator after initial arbitrator recused himself found to satisfy the requirements of administrative due process
Matter of Smith v New York City Dept. of Educ., 2009 NY Slip Op 08493, decided on November 19, 2009, Appellate Division, First Department
In the course of disciplinary arbitration the accused, Theodore Smith threatened the arbitrator, who then recused himself from the proceedings. The initial arbitrator was replaced as a result. The new arbitrator found Smith “guilty of numerous disciplinary charges and suspending him for one year without pay.”
Smith appealed and New York State Supreme Court Justice Alice Schlesinger granted his petition to vacate the replacement arbitrator’s award and remanded the matter for a “new arbitration hearing.”
The Appellate Division unanimously reversed Justice Schlesinger ruling “on the law” and reinstated the arbitration award initially promulgated by the replacement arbitrator.
The Appellate Division said that the fact that a replacement arbitrator, who was not present during the receipt of evidence, made the arbitration award based on a review of the record, did not deny Smith due process of law. Due process of law and the concept of a fair hearing "do not require that the actual taking of evidence be before the same [arbitrator] who makes the final determination" said the court, citing Matter of Gupta v New York State Dept. of Social Services, 208 AD2d 629 and other cases.
The court noted that the replacement arbitrator drew his credibility assessments from compelling documentary evidence, replying on contemporaneous writings and reviewed the testimony in the record. The replacement arbitrator, said the court, gave Smith an opportunity to present new evidence, including his own testimony, documentary evidence and additional witnesses. Smith “chose not to avail himself” of this opportunity.
Noting that the sole reason that the replacement arbitrator was substituted in this matter was because Smith “issued threats to the first arbitrator,” the Appellate Division commented that Smith should not be permitted to benefit from such behavior by obtaining a hearing de novo before a second arbitrator.”
Another case in which the substitution of the hearing officer was an issue is Rumors Disco v NYS Liquor Authority, 212 A.D.2d 796.
According to the ruling, the original hearing officer could not issue findings and recommendations within the 30-day period allowed for this purpose. Another hearing officer made such findings and recommendations and submitted them to the Liquor Authority for its consideration.
The Authority sustained the findings and suspended Rumors' liquor license for 60 days and imposed a $1,000 bond claim. Rumors appealed, contending that it was substantially prejudiced because the hearing officer's findings and recommendations, which were later adopted by the Liquor Authority, were issued by a hearing officer other than the original hearing officer.
The Appellate Division dismissed the appeal, indicating that it found Rumors had not been prejudiced as a result of the substitution of hearing officers. The Court also sustained the penalty imposed, ruling that it was supported by substantial evidence in the record and not disproportionate to the offense committed by Rumors.
Going one step further, what is the result if the arbitrator was never present at the arbitration. This was the situation in Amalgamated Transit Local 1181 v Amboy Bus Co, NYS Supreme Court, May 1997 [Not published in the Official Reports].
In this disciplinary arbitration, the designated arbitrator, Theodore W. Kheel, was not physically present at the hearing and did not personally hear the testimony presented.
Instead, the Kheel’s legal assistant appeared at the appointed time and discussed the situation with the parties.
According to Amalgamated, Kheel’s assistant told both parties that Kheel could not be present but if there was no objection, she would conduct the hearing and report the evidence to Kheel, who would make the determination based on the "record" she developed in the course of the arbitration.
Amboy's general manager, a layperson, represented the Company at the arbitration and contended that Kheel's assistant merely said that Kheel would be late and that she would take notes for him. Further, the manager said that he was not told that he had the right to object to going forward with the arbitration under these conditions.
In any event, Kheel’s assistant proceeded to take evidence concerning the matter and ultimately Kheel issued the award. When the union moved to confirm the award, Amboy asked the court to vacate it.
New York State Supreme Court Justice Saxe ruled that "where an arbitration agreement provides for the selection of the arbitrator, absent impossibility such method must be followed or the agreement cannot be said to have been complied with within the meaning of CPLR 7511."*
Justice Saxe found a number of problems in the procedures followed in the hearing. For example, he said that although the parties may stipulate to an alteration of the agreed-upon procedure, "there is not showing here that any clear or clearly understood stipulation was made."
Further, the court said that “Nothing was placed on the record or in any written form, nor were any statements made on the record indicating [Amboy's] acquiescence to the substitution of the assistant. Particularly when one of the parties is not represented by counsel, it is critical to ensure that such an alteration is in fact understood and agreed upon by both parties.”
The lesson in Amalgamated Transit is that if there is any deviation from the standard grievance or arbitration procedure agreed upon by the parties, the parties should be advised of their respective rights under the circumstances and if they mutually agree to go forward under the new arrangement, a stipulation to that effect should be made "on the record."
* Section 7511 of the Civil Practice Law and Rules [CPLR] sets out the ground rules for arbitration.
The Smith decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08493.htm
Re Lindsey Grand Jury Testimony, CADC, 148 F.3d 1100
The attorney-client privilege has been frequently relied upon in an effort to bar the disclosure of conversations between an individual and his or her attorney. The decision by the U.S. Circuit Court of Appeals for the District of Columbia in the Lindsey case points out a number of important limitations concerning claiming such a privilege, which affects both federal and state officials.
In Lindsey, the issue was whether the conversation between an government executive, here the President, and a government employee-attorney serving as his counsel for the purpose of obtaining legal advice, triggered the attorney-client privilege with respect to compelling testimony by the attorney before a grand jury.
In a nutshell, the court said that if a public official wishes to claim an attorney-client privilege in connection with discussions involving “official business” with an attorney, he or she should employ and consult with a private attorney instead of discussing the matter with a government employee-attorney.
Essentially the “attorney-client privilege” attaches to statements between an attorney and a client involved in a professional relationship, and which the attorney is not permitted to divulge without the approval of the client. It should be noted that only the client could rely on the privilege. If he or she waives the privilege, his or her attorney cannot refuse to divulge the communications on the grounds that it is subject to the privilege.
The D.C. Circuit said that no attorney-client privilege existed in the Lindsey case because in “investigations of federal criminal offenses, and especially offenses committed by those in government, government attorneys stand in a far different position from members of the private bar.”
This view parallels the proposition that a government employee may not refuse to answer questions concerning the performance of his or her official duties on the theory that requiring such testimony violates the individual’s Fifth Amendment protections against self-incrimination.
When such testimony is compelled, the individual is given “transactional” or “use” immunity, meaning the statements so compelled may not be used against the employee in a subsequent criminal proceeding [see, for example, People v Corrigan, 80 NY2d 326].
One exception to this general rule noted by the courts: if the individual lies while giving such testimony, he or she cannot claim transactional or use immunity in connection with charges of perjury arising from his or her false testimony [see United States v. Apfelbaum, 445 US 115; People v. Shapiro, 50 NY2d 747].
In the Lindsey case, the principal question was whether a government employee-attorney in the Office of the President, having been called to testify before a federal grand jury, may, on the basis of the attorney-client privilege, refuse to answer questions about possible criminal conduct by government officials and others. The Circuit Court said no such privilege existed in this instance.
Below are selected quotes from the opinion:
1. If an executive branch attorney is called before a federal grand jury to give evidence about alleged crimes within the executive branch, reason and experience, duty, and tradition dictate that the attorney shall provide that evidence.
2. With respect to investigations of federal criminal offenses, and especially offenses committed by those in government, government attorneys stand in a far different position from members of the private bar. Their duty is not to defend clients against criminal charges and it is not to protect wrongdoers from public exposure.
3. Where one consults an attorney not as a lawyer but as a friend or as a business adviser or banker, or negotiator ... the consultation is not professional nor the statement privileged. Thus, advice on political, strategic, or policy issues, valuable as it may be, would not be shielded from disclosure by the attorney-client privilege.
As government officials can be compelled to testify concerning their performance of their official duties because such testimony would be subject to “use immunity” or face disciplinary action, the claim of “attorney-client privilege” appears to be illusory as a possible bar against a government-employee attorney testifying about his or her conversations with a public official.
Walters v Amityville UFSD, Appellate Division, 251 A.D.2d 590
The Walters decision demonstrates the need for employers to clearly identify in its personnel records the professional obligation of each employee (e.g., nine-month employee vs. 12-month employee) as well as each employee’s status (e.g., provisional, permanent, part-time, full-time, etc.) Also important: sharing such information with the individuals involved.
In this case, the courts decided a teaching assistant was tenured despite a school district’s claim to the contrary.
Mary Walters had been continuously employed as a teaching assistant by the Amityville Union Free School District since September 1, 1990. She worked five days a week, 5 1/2 hours per day. At the end of the 1995-96 school year she was advised that the district would be continuing her employment. She then received a second letter, dated August 12, 1996, indicating that “she would not be recommended” for a teaching position for the 1996-1997 school year and that she was terminated.
Amityville’s practice was to decide whether to reappoint its teaching assistants at the end of each school year and to write the individual indicating whether or not his or her services would be required the next school year.
In support of its action, the district said that the first letter sent to Walters was “due to a clerical error.” In any event, the district said that because Walters was a part-time employee she was not tenured and therefore had no rights under Section 3020-a of the Education Law.
The Appellate Division first addressed Walters’ work status, commenting that it agreed with the Supreme Court’s finding that she was a full-time employee. It noted that the letter sent to Walters at the end of the 1995-96 school year referred to her “continuing employment” as well as the fact that Walters was given benefits pursuant to the collective bargaining agreement typically reserved for full-time employees such as step increases in salary and longevity payments. The court also commented that Walters “had never been given any indication that she was considered to be employed part-time in the six years that she had worked for the District.”
Another element that appears to be significant in the eyes of the Appellate Division was that although the district’s job postings indicated if a position was part-time, “the job posting for [Walters’] position gave no indication that the job was part-time.”
As to Walters’ tenure status, the Appellate Division pointed out that although the district had never affirmatively awarded her tenure, she had acquired such status by estoppel as she continued to be employed as a full-time teaching assistant in the area of special education, with the knowledge of the board, beyond the required three year probationary period.Amityville was directed to reinstate Walters to her former position retroactive to her “last day of employment,” with “full back pay” and benefits.
A board of education may require any school district or BOCES employee to submit to a medical examination to determine his or her fitness for duty
Appeal of D.R. from action of the Board of Education of the South Orangetown Central School District regarding a personnel matter. Decisions of the Commissioner of Education No. 15,885
The South Orangetown Central School District School Board directed D.R., a secretarial assistant employed by the District, to appear for a medical examination. D.R.’s personal physician had advised her not to return to work due to severe depression and stated that D.R. was “not fit to assume her job duties at [that] time.” After D.R. notified her supervisor of her physician’s advice, the District adopted a resolution “authorizing its president to direct [D.R.] to undergo a comprehensive medical examination and evaluation pursuant to Education Law §913.”*
The President requested D.R. to contact the medical facility. D.R. appealed, contending that “the express and sole purpose of Education Law §913 is to safeguard the health of students, which would not be furthered or served by her medical examination.”
D.R. argued that she had not been on school grounds for a substantial period of time, that her position does not place her in contact with students, and that she has received favorable past performance evaluations. In rebuttal, the District said that “Education Law §913 provides it with the authority to direct a medical examination of any employee, not only those with direct student contact.”
The Commissioner dismissed D.R.’s appeal, ruling that she had “failed to meet her burden” of proof. Noting that “A board of education has a statutory right to order an employee to submit to a medical examination pursuant to Education Law §913,” the Commissioner said that the medical examination provisions set out in §913 apply to teachers and “other employees” and the purpose of such examination is “to determine the physical or mental capacity of ... [a] person to perform his or her duties.”Commenting that the statute does not limit examinations to certain types of employees or duties, and has been applied to non-teaching personnel, citing Gardner v. Niskayuna Cent. School Dist., 42 AD 3d 633 and Brodsky v. Board of Educ., Brentwood Union Free School Dist., 64 AD 611, the Commissioner decided that based on the record before him, he could not conclude that the District actions constituted an abuse of authority or was arbitrary or capricious.
As D.R. representation that she had enjoyed favorable performance evaluations, the Commissioner said that although “laudable,” such past evaluations “are not an indicator of [D.R.’s] current physical and mental health or her present capacity to perform her duties.”
* Education Law §913 provides, in pertinent part: “In order to safeguard the health of children attending the public schools, the board of education or trustees of any school district or a board of cooperative educational services shall be empowered to require any person employed by the board of education or trustees or board of cooperative educational services to submit to a medical examination by a physician or other health care provider of his or her choice or the director of school health services of the board of education or trustees or board of cooperative educational services, in order to determine the physical or mental capacity of such person to perform his or her duties."
The full text of the Commissioner's decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume48/d15885.htm
Educator’s “professional obligation” rather than the payroll mode determines eligibility for unemployment benefits during school recess
Aljandari v Buffalo Bd. of Education, 245 A.D.2d 647, Motion for leave to appeal denied, 93 N.Y.2d 815 [decided with Smith v Buffalo Board of Education]
In the Aljandari case the Appellate Division sustained a determination by the Unemployment Insurance Appeals Board that Aljandari and other "totally unemployed" teachers were entitled to unemployment insurance benefits during the school's summer recess.
The Appellate Division said that the fact that some of the teachers "were eligible for fringe benefits during the summer and elected to have their salary prorated to extend during this time" did not "compel the conclusion" that they were not totally unemployed during the summer.
In effect, the Court ruled that it was the term of the teacher's "professional obligation" rather than his or her payroll mode [21 pay periods or 26 pay periods] that was the critical element.
Union’s right to demand and obtain documents on file with the employer in a grievance procedure does not extend to disciplinary actions
Matter of Pfau v Public Empl. Relations Bd., 24 Misc 3d 260
Ann Pfau, as Chief Administrative Judge of the Courts of the Unified Court System of the State of New York (UCS), appealed the New York State Public Employment Relations determination the UCS was guilty of improper practice within the meaning of the Taylor Law as the result of UCS’s refusal to provide certain documents a union demanded in connection with disciplinary action being taken against an employee.
District Council 37 AFSCME, AFL-CIO (DC 37) alleged that UCS’s refusal to comply with the Council's demand for certain documents in connection with the disciplinary action violated Civil Service Law.* Although PERB ultimately rejected some of Council 37's document requests as being overly broad, it determined that USC’s refusal to provide the remaining records to DC 37 violated Civil Service Law §209-a(1)(a) and (d).
State Supreme Court Justice Eugene P. Devine ruled that “[t]he crucial issue in this case is whether Civil Service Law, Article 14, §200 et seq. [The Taylor Law] entitles unions to the same disclosure in employee disciplinary hearings as the union may demand when filing grievances.”
Justice Devine concluded that contract grievances are very different from disciplinary hearings.
In the words of the court, “Grievances are an inherent part of union organization or employee participation in unions; disciplinary hearings and union representation in those hearings are not.”
Accordingly, said the court, DC 37 had no authority to intrude on the disciplinary hearing process and cut out a specific collectively bargained for item from the contract. Justice Devine concluded that PERB acted beyond its authority "when it determined to stretch the Taylor Law by extending to the disciplinary hearing process a right that heretofore was only part of the grievance process."
In formulating his ruling, Justice Devine noted the decision by the Appellate Division in Civil Service Employees Ass'n v New York State Public Employee Relations Board, 46 AD3d 1037, but concluded that the decision was not a controlling precedent in this case. The CSEA case, said the court, did not address the issue that the court determined was central to this case -- whether the Taylor Law entitles unions to the same disclosure in employee disciplinary hearings as they enjoy when filing grievances.
Holding that Pfau had met her burden of demonstrating that PERB's determination was "in excess of its jurisdiction, violative of positive statutory requirements, and an abuse of PERB’s discretionary power," Justice Devine vacated and annulled PERB’s decision.
* Sometimes the employee against whom disciplinary charges have been served will attempt to “subpoena” documents. A New York City schoolteacher served with disciplinary charges pursuant to Section 3020-a of the Education Law served a subpoena duces tecum [produce the documents] on the New York City Board of Education requiring it to produce certain records. Supreme Court granted the Board’s motion to quash the subpoena; the Appellate Division affirmed the Supreme Court's decision. The Appellate Division ruled that Hankin attempted to use the subpoena duces tecum improperly and such a subpoena "may not be used for purposes of discovery or to ascertain the existence of evidence" [Board of Educ. of City of New York v Hankins 294 A.D.2d 360].
Occasionally an individual served with disciplinary charges will demand "a bill of particulars" requiring the appointing authority to set out the charges and specifications filed against the individual in greater detail. Although Education Law Section 3020-a.3c(iii)(C) gives an administrator or teacher the right to demand such a "bill of particulars,” no similar provision is included in Section 75 of the Civil Service Law. In some instances, however, a negotiated disciplinary grievance procedure will allow the employee to demand a "bill of particulars" in accordance with provisions set out in the collective bargaining agreement.
The full text of the Pfau decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29108.htm
Matter of Pishotti v New York State Thruway Authority, 38 A.D.3d 1122
James Pishotti, a construction equipment operator, had been placed on disciplinary probation by the Thruway Authority for violations of its policy against violence in the workplace. He was subject to immediate termination in the event he violated the terms of his disciplinary probation.
Pishotti was involved in an incident of workplace violence. Having violated his disciplinary probation, he submitted his written resignation to the Thruway’s Director of Personnel rather than face “immediate termination.”
About 10 days later, Pishotti attempted to withdraw his resignation. His request was rejected by the Director of Personnel and Pishotti sued, claiming that the Director’s refusal to permit him to rescind or withdraw his resignation was arbitrary and capricious.
Supreme Court dismissed Pishotti’s petition, deciding that the Director’s refusal to agree to permit Pishotti to withdraw his resignation was neither arbitrary nor capricious. The Appellate Division affirmed the Supreme Court’s ruling.
The Appellate Division noted that Pishotti had delivered his resignation to the Director, who had been properly delegated with the authority to “appoint and effect probationary terminations ….” The court said that the Director’s “Acceptance of a resignation in lieu of disciplinary removal is a logical extension of that delegated authority.” *
As to Pishotti’s claim that the Director’s refusal to allow him to withdraw his letter of resignation constituted an abuse of discretion or was an arbitrary and capricious act, the Appellate Divisions said the question of permitting an individual to withdraw of a letter of resignation “is a decision to be made by the appointing authority in the exercise of sound discretion.”
As Pishotti had admitted violating the Thruway’s workplace anti-violence policy and of violating his one-year disciplinary probation by committing another act of violence at the workplace, the Appellate Division held that under such circumstances, the Director’s “refusal to allow withdrawal of the resignation does not constitute an abuse of discretion nor amount to an arbitrary and capricious act.”
* NYPPL Comment: Approval or acceptance of an officer’s or an employee’s resignation is not required for the resignation to take effect. All that is required for a resignation to become operative is its delivery to the appointing authority or to the appointing authority’s representative. At most, all that an appointing authority might wish to do is to “acknowledge the receipt” of the officer’s or the employee’s resignation. 4 NYCRR 5.3(b), which applies to employees of the State as the employer, provides, in pertinent part, that “If no effective date is specified in a resignation, it shall take effect upon delivery to or filing in the office of the appointing authority. If an effective date is specified in a resignation, it shall take effect on such specified date.” 4 NYCRR 5.3(c) provides that ‘A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.” Many political subdivisions of the State have adopted a similar provision.
For the full text of the decision, go to: http://www.nycourts.gov/reporter/3dseries/2007/2007_02459.htm
Friday, November 20, 2009
Recognizing out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits ruled lawful
Godfrey v Spano, 2009 NY Slip Op 08474, Decided on November 19, 2009, Court of Appeals [Decided with Lewis v New York State Department of Civil Service]
Plaintiffs in this action are taxpayers challenging directives recognizing out-of-state same-sex marriages for purposes of public employee health insurance coverage and other benefits.* The Court of Appeals held that that plaintiffs' actions were properly dismissed by the courts below.
Many residents of New York State in a same-gender relationship have traveled to Massachusetts, Connecticut, Iowa and Vermont, jurisdictions permitting same-gender marriage, for the purpose of marrying.
In response to this development, several state and county officials issued general directives relating to the recognition of those out-of-state same-sex marriages.
This appeal involved challenges to the lawfulness of two such directives: a Policy Memorandum, Employee Benefits Division Policy Memorandum issued by the Commissioner of the New York State Department of Civil Service, which became effective May 1, 2007* and an Executive Order issued by the County Executive of the County of Westchester, Westchester County Executive Order No. 3 of 2006.**
However, the Court of Appeals commented with respect to the action brought by Godfrey that it did adopt the Second Department's rationale for affirmance of the Supreme Court’s ruling, i.e., the Executive Order did not purport to change the law, because it included language directing recognition of same-sex couples "to the maximum extent allowed by law."
The high court said that it found such language ambiguous, and it said it “would not encourage executive officials to try to insulate their orders from judicial review by this means.” Instead the Court of Appeals sustained the result “because the Godfrey plaintiffs have failed to allege an unlawful expenditure of taxpayer funds, they have not stated a cognizable claim under General Municipal Law §51.”
As to the Lewis plaintiffs, the Court of Appeals noted that the only surviving causes of action were based on State Finance Law §123-b and the separation of powers doctrine.
As to Finance Law § 123-b, the court said although a taxpayer may bring suit under this statute to prevent the unlawful expenditure of state funds "whether or not such person is or may be affected or specially aggrieved" (State Finance Law §123-b ), there must be some specific threat of an imminent expenditure. In this instance the Court of Appeals ruled that “The State Finance Law claim of the Lewis plaintiffs fails to state a cause of action for the same reason that the General Municipal Law § 51 claim of the Godfrey plaintiffs fails.
Addressing the Lewis plaintiffs' action based on the separation of powers doctrine, essentially the complaint alleges that the Department of Civil Service acted "inconsistently with the Legislature's pronouncements on spousal benefits" and was thus in violation of Civil Service Law §164. In the words of the Court of Appeals: “The statute itself refutes plaintiffs' claim.”
Civil Service Law §161(1) provides that the President of the Civil Service Commission is "authorized and directed to establish a health insurance plan for state officers and employees and their dependents and officers" and provides that every state employee "shall be entitled to have his spouse and dependent children, as defined by the regulations of the president, included in the coverage upon agreeing to pay his contribution, if any, to the cost of such coverage for such dependents" (emphasis in the original).
Accordingly, said the court, the statute thus expressly gives the President of the Civil Service Commission the authority to define "spouse."
Moreover, said the court, the statute does not restrict the President's provision of health insurance to spouses and dependent children. The language is of entitlement, not restriction.
The Court of Appeals concluded by stating that "in each case the order of the Appellate Division should be affirmed with costs."
* The decision notes that “The Memorandum explained that the State had provided eligibility for employee benefits, including New York State Health Insurance Program benefits, to the domestic partners of State employees, including same-sex partners, since the mid-1990s. The coverage, while mandatory for the State, as an employer, itself, providing such coverage was discretionary for Participating Agencies (PAs) and Participating Employers (PEs).”
** The New York State Employees’ Retirement System recognized “same-sex marriages” for retirement benefit purposes if the union was performed in a jurisdiction where performing a same-sex marriage was lawful. It successfully defended a lawsuit challenging that policy [Godfrey v DiNapoli, 22 Misc.3d 249]. In the Godfrey case the jurisdiction was Canada.
The decision is posted on the Internet at:
Proof of a direct causal relationship between job duties and the resulting disability is sufficient to support awarding GML §207-a disability benefits
Matter of Ridge Rd. Fire Dist. v Schiano, 2009 NY Slip Op 08266, Decided on November 13, 2009, Appellate Division, Fourth Department
A collective bargaining agreement (CBA) entered into between the Ridge Road Fire District and the Ridge Road Professional Firefighters Association IAFF, Local 3794, International Association of Firefighters, AFL-CIO, provided that in the event an individual was denied benefits otherwise available to him or to her pursuant to General Municipal Law §207-a, the employee could appeal that determination to the Board of Fire Commissioners (Board). The Board would then appoint a hearing officer chosen from a list of names mutually agreed upon by the Board and the Union. In addition, the CBA provided that "[i]t is the employee['s] burden to prove [that] the employee is entitled to [General Municipal Law §] 207-a benefits" and that the hearing officer shall issue a written decision containing findings of fact and conclusions of law.”
Michael P. Schiano, serving as the selected General Municipal Law §207-a hearing officer in accordance with the terms of the CBA, determined that the reasons advanced by the Ridge Road Fire District as justification for denying Kevin Nowak disability benefits was not supported by substantial evidence and granted Nowak GML §207-a disability benefits for which he had applied.
Ridge Road appealed and Supreme Court* annulled Schiano’s determination, concluding that the Fire District’s denial of benefits was supported by substantial evidence and that the Hearing Officer's determination was arbitrary and capricious. This ruling, said the Appellate Division, was incorrect and reinstated Schiano’s award of benefits to Nowak.
Supreme Court had initially annulled the Schiano’s first determination awarding benefits to Nowak after finding that “the Hearing Officer had applied an incorrect standard of review and analysis.” Schiano, it said, had analyzed the issue in terms of whether Nowak had presented evidence to override the Fire District’s determination, concluding that the Hearing Officer, instead, should have determined whether the Fire District’s determination was supported by substantial evidence.
Upon remittal from Supreme Court, Schiano issued a second decision, concluding that the Fire District’s denial of benefits to Nowak was not supported by substantial evidence. The Fire District appealed this second ruling by Schiano and Supreme Court granted its petition, concluding that there was substantial evidence to support the Fire District’s denial of benefits to Nowak and that the Hearing Officer's determination was arbitrary and capricious.
The Appellate Division disagreed with Supreme Court’s determination that the denial of benefits to Nowak was supported by substantial evidence and thus that the Hearing Officer's determination to the contrary was arbitrary and capricious. The Appellate Division pointed out that the Hearing Officer's determination "was not made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law . . . [but, r]ather, the determination was the result of a hearing conducted pursuant to the terms of the [CBA]."**
Nowak had been told that he was denied benefits because his physician had indicated that his injury was related to the non-work-related injury in August 2002, and not a prior work-related injury sustained in November 1999. At the hearing Nowak presented the testimony and report of a physician who reviewed Nowak's medical records and agreed that "something about that day [i.e., November 7, 2002] caused a flare up of pain." The Appellate Division said that there was also testimony by the fire battalion chief that, “after returning from the response to the fire alarm on November 7, 2002, he observed that Nowak appeared to be in pain. After determining that Nowak began experiencing back pain while operating fire equipment, the battalion chief took Nowak off duty and transported him to the hospital.
The Appellate Division stated that “It is well established that, "consistent with a liberal reading of section 207-[a], a qualified [employee] need only prove a direct causal relationship between job duties and the resulting . . . injury . . . Preexisting non-work-related conditions do not bar recovery under section 207-[a] where [the employee] demonstrates that the job duties were a direct cause of the disability"
In addition, the Appellate Division noted that “preexisting non-work-related conditions do not bar recovery under section 207-[a] where [the employee] demonstrates that the job duties were a direct cause of the disability," citing Matter of White v County of Cortland, 97 NY2d 336.
Concluding that the denial of benefits, which was based on the determination that the disability was solely related to a prior non-work-related injury, is not supported by substantial evidence, the Appellate Division said that Supreme Court “erred in determining that the Hearing Officer's determination to that effect was arbitrary and capricious.”
* Earlier the Appellate Division had remanded this matter to Supreme Court for a determination of the merits “inasmuch as the Hearing Officer's determination ‘was not made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law' . . . [but, r]ather, the determination was the result of a hearing conducted pursuant to the terms of the [CBA]." See Matter of Ridge Road Fire District v Schiano, 41 AD3d 1219.
** It appears the the Appellate Division viewed the proceeding as being in the nature of an arbitration and thus the rules applicable to an Article 75 rather than an Article 78 proceeding controlled.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_08266.htm
For information about the Public Employment Law Press e-book Disability Retirement and General Municipal Law Sections 207-a/c please go to: http://booklocker.com/books/3916.html
School board’s statutory responsibility to call a special meeting of the district key to deciding an appeal seeking school superintendent's removal
Application of Frank W. Kolbmann for the removal of Garry F. Stone as superintendent of schools of the Holland Central School District, Decision No. 15,888
Frank W. Kolbmann asked the Commissioner to remove of Garry F. Stone (“Stone”) from his position as superintendent of schools of the Holland Central School District. The Commissioner declined to do so.
Kolbmann had alleged that Stone violated Education Law §§2004, 2007 and 2008(2) in connection with the calling of special meetings of school district voters and such violations justified Stone’s being removal from his position.
The Commissioner said that a member of the board of education or a superintendent of schools may be removed from office pursuant to Education Law §306 when it is proven to his satisfaction that the board member or superintendent had engaged in a willful violation or neglect of duty under the Education Law or had willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.
In addition, the Commissioner noted the Kolbmann had the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he sought relief.
Although Kolbmann contended that Stone violated Education Law §§2004, 2007 and 2008(2), the Commissioner pointed out that those sections of law place the duty of calling a special meeting of school district voters on the school board, not the school superintendent. Accordingly the Commissioner dismissed Kolbmann’s application.
The Commissioner then approved Stone’s request for a certificate of good faith pursuant to Education Law §3811(1).
A certificate of good faith authorizes the board to indemnify Stone for his legal fees and expenses incurred in defending himself in a proceeding arising out of the exercise of his powers or performance of his duties as superintendent. The Commissioner said that issuing the certificate was appropriate in this instance as there has been no finding that Stone acted in bad faith.
The full text of the Commissioner’s decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume48/d15888.htm
Zone Sergeant's violation of a Division of State Police regulation and bringing discredit upon the Division justifies her demotion to Sergeant
Matter of Revella v Felton, 60 A.D.3d 1184
Christine A. Revella, a zone sergeant with the Division of State Police, was served with a notice of discipline alleging three violations of the Division's regulations as the result of an incident involving her off-duty pursuit of another vehicle for reckless driving.
The first violation set forth in the notice of discipline Revella with exhibiting inaptitude and failing to assume responsibility or exercise due diligence in the performance of her duties. The second violation charged her with acting in a manner tending to bring discredit upon the State Police. The third violation charged Revella with failing to act in a courteous, dignified and business-like manner.
A hearing on the charges was subsequently conducted, resulting in a decision by the Hearing Board recommending that Revella be found guilty of the second charge, and that she receive a letter of censure and be placed on six months of probation.
Although the Superintendent of State Police adopted the Hearing Board's recommendation, instead of placing Revella on probation, he reassigned her to the rank of sergeant. Revella filed an Article 78 petition challenging the Superintendent’s demoting her to Sergeant.
Noting that "[o]ur role is limited to determining whether the administrative decision is supported by substantial evidence," the Appellate Division said that in undertaking this inquiry, we "will not 'second guess the credibility determinations of the administrative factfinder.'"
Noting that Revella “essentially admitted that, in her pursuit … she exceeded the speed limit, crossed official highway markings and drove through red lights," the court said that given “these clear violations of the Vehicle and Traffic Law,” evidence supports the Superintendent’s that Revella violated a pertinent regulation and brought discredit upon the State Police.
Giving "deference to an agency's determination regarding a sanction, 'especially in situations where . . . matters of internal discipline in a law enforcement organization are concerned,'" the Appellate Division said that it did not find that "reassigning Revella to the rank of sergeant shocking to its sense of fairness" and dismissed Revella’s appeal.
The full text of the decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_01753.htm
Statute of limitations for filing the violation of its duty of fair representation charge commences on the day member complained to union
Levi Mcintyre And Middle Island Administrators Association, PERB U-27349
The Public Employment Relations Board affirmed the decision of its ALJ that dismissed as untimely, a duty of fair representation charge filed by Levi McIntyre.
The duty of fair representation charge alleged that the employee organization had violated the Act by agreeing to a new 12-step salary schedule and placing him at the top of the schedule.
In affirming the ALJ’s ruling, the Board found that the alleged violation of the Act accrued on or before the date McIntyre sent a letter to the president of the employee organization complaining of the salary disparities resulting from the new step schedule. McIntyre's charge was filed well beyond the four-month filing period following his letter.
Matter of Giordano v New York State Teachers' Retirement Sys., 24 Misc.3d 1247
Matthew Giordano filed a petition pursuant to CPLR Article 78 in an effort to have a vacate the New York State Teachers’ Retirement System’s decision not to change his “tier status with in the retirement system” from Tier II to Tier I.
The parties agree that Giordano was employed as a full-time teaching assistant in the South Manor Union Free School District from January 1, 1971 through June 30, 1971and effective September 1, 1971, began working as a full-time teacher in the Hauppauge Union Free School District. The retirement system, however, required Giordano to submit “proof of [his] mandatory membership in the retirement system as January 1, 1971.”
After additional correspondence, respondent issued a determination on March 2, 2009 that denied Giordano 's request to backdate his retirement system membership to January of 1971.
Although Giordano argued that he held a full-time teaching assistant position from January 1 to June 30, 1971 and that his full-time employment has been clearly established, presenting, among other documents payroll records indicate he was "employed as a full-time Teaching Assistant for 120 days in 1971 and earned a total salary of $4320, with an assigned New York State Teachers' Retirement System number of 474636.
In addition, Giordano pointed out that his present number in the retirement system is 474636 and that the relevant preliminary budget page stated "Assistant Teacher Jan - June" with an apparent reference to salary in the amount of $4320 and included the following additional references: "+ ret. 864.00; + S.S. 211.68".*
The system argued that despite Giordano 's full-time employment during the time period in question, there is no proof that the position in which he worked was one in which membership in the retirement system was mandatory. Absent such proof, the system contended that Giordano was required to prove that he joined the retirement system.
The Court agreed with the system, commenting “it does not appear that this position was ever intended to be a permanent or per annum position” and despite the reference in a 2006 letter by the Superintendent of Schools that Giordano was assigned his retirement system number in conjunction with his teaching assistant employment in early 1971, there is no proof to support this conclusion.”
Judge Zwack dismissed Giordano’s petition.
* Presumably the item identified as “S.S. 211.68” refers to the amount required for employer contributions for Social Security on behalf of the appointee. If so, there is a possible ambiguity as to Giordano’s effective date of membership in the Retirement System in that employees required to join a public retirement system of this state were [and are] required to participate in Social Security while those whose membership was not mandatory could participate in Social Security only upon their becoming a member of a public retirement system of this State. [Employee ineligible to join a retirement system of this State and [and were] required to have Social Security.]
The decision is posted on the Internet at:
Bystricky v Bystricky, Supreme Court, Nassau County, 177 Misc 2d 914
Although this case deals with the marital assets of a police officer involved in a divorce, the decision suggests the court’s general approach to evaluating benefits resulting from promotions in the public service in divorce proceedings.
After passing a civil service examination, Robert W. Bystricky was promoted to Sergeant by the Rockville Center Police Department. In the course of a divorce proceeding, Bystricky’s wife claimed she was entitled to Bystricky’s “enhanced earnings” as a result of his promotion.
Justice Anthony L. Parga ruled that Bystricky’s enhanced earning potential as result of his promotion was not a marital asset subject to equitable distribution in a divorce.
Justice Parga said that “[Bystricky’s] status as sergeant in a particular police department does not automatically entitle [him] to be assigned this position in any other police department in this county, or state, nor would it automatically entitle him to a further promotion to a higher rank and to receive increased income since that consequence rests largely on additional civil service examinations.”
A public employee’s increased income as a result of his or her promotion, however, could be a factor in computing a court award for child support or maintenance.
Jardim v PERB, 265 A.D.2d 329
In this action the Appellate Division held that LeRoy Jardim’s petition seeking review of the determination of the New York State Public Employment Relations Board was properly dismissed he failed to exhaust his administrative remedies, citing Watergate II Apts. v Buffalo Sewer Auth., 46 NY2d 52, and other decisions.
The New York State Public Employment Relations Board [PERB] had adopted rules providing for the filing of unfair labor practice charges, which include as its first step in the adjudication process a review by an administrative law judge [ALJ]. Its rules also provides for the filing of “exceptions” to a determination by an ALJ.
As the Jardim decision illustrates, the failure of a party to follow the administrative review and appeal procedures established by PERB could be fatal to the party’s claim.
Jardim was employed by the New York City Transit Authority (NYCTA). He also served as a union steward for the Transportation Workers Union. In his capacity as a union steward Jardim filed an improper practice charge with PERB complaining that he was prevented from representing a union member. He also charged that he had been disciplined for conduct purportedly arising out of his union duties.
In a decision dated January 30, 1998, PERB’s ALJ found that the NYCTA committed no violation and dismissed the charge against it.
Although PERB rules provide that a party may filed “exceptions” to a ruling, finding, conclusion or recommendation” made by an ALJ within 15 business days of receiving the ALJ’s determination, Jardim did not file any exception to the ALJ’s determination dismissing his charges. He, instead, filed an Article 78 action challenging the ALJ’s decision.
PERB’S rules also provide that if a party does not file a timely exception to a ruling, finding, conclusion or recommendation, any objections are deemed waived. In other words, if no exceptions are filed, “the decision and recommended order, or any part thereof, which concludes that a charge should be dismissed, in whole or in part, will be final” (4 NYCRR 204.14[b]). State Supreme Court Justice Belen dismissed Jardim’s complaint commenting that “[i]t is hornbook law that one who objects to the act of an administrative agency must exhaust available administrative remedies before being permitted to litigate in a court of law.”
Judge Belen also said that an Article 78 proceeding cannot be used to challenge a determination which is not final “or can be adequately reviewed by appeal to ... some other body or officer ...,” citing Section 7801.1 of the Civil Practice Law and Rules.According to the ruling, Jardim had an administrative appeals process available to him, but he apparently chose not to use it. The court rejected Jardim’s theory that because “he did not file any exceptions to the ALJ’s decision, it became final and he therefore met the threshold requirement for bringing an Article 78 proceeding challenging an administrative determination” and dismissed his petition.
School district not required to provide for defense, nor provide for indemnification, in lawsuit it brought against former school board member
Matter of Barkan v Roslyn Union Free School Dist., 2009 NY Slip Op 06541, decided on September 15, 2009, Appellate Division, Second Department
Michael F. Barkan initiated two lawsuits; one named the Roslyn Union Free School District as the defendant, the other named New York Schools Insurance Reciprocal as the defendant.
Barkan’s lawsuit against the school district challenged its decision to reject his request for his defense and indemnification in an action entitled Roslyn Union Free School District v Barkan, [Supreme Court, Nassau County, Index No. 05-5946].*
In Barkan’s lawsuit against the school district, the principal issue concerned whether a board of education that has essentially adopted the provisions of Public Officers Law §18** is obligated to provide a defense and indemnification to board members and employees against whom the school district, on behalf of the board of education, has commenced a civil action.***
The Appellate Division ruled that “if the board of education or the school district, on its behalf, commences a civil action against one of its employees, neither the duty to defend nor the duty to indemnify arises” and thus the board’s determination that that Barkan was not entitled to a defense in the underlying action pending in Supreme Court was neither irrational, nor arbitrary and capricious.****
It should be noted that Education Law §3811(1) provides for the defense and indemnification of a member of a board of education, a school officer, the district's superintendent and other employees of the district in the event such an individual is named as a defendant in a lawsuit, other than in a criminal action, involving the performance, or an omission, of an official duty by the district.
In the Appeal of Rheta Percy and Janice Ross, Commissioner's Decision 12,619, the Commissioner of Education observed that an individual “may have rights under both Education Law §3811, as a primary source, and Public Officers Law §18, as a secondary source.”
* Roslyn sued Barkan and other school board members alleging he and the other named Board members failed to properly monitor the School District's finances whereby they failed to detect the theft of millions of dollars by former School District employees during a six-year period from 1998 to 2004.
** In many political subdivisions of the State the jurisdiction provides for the defense and indemnification of its officers and employees being sued in connection with the performance of their official duties pursuant to Section 18 of the Public Officers Law. Public Officers Law Section 17 applies to State officers and employees.
*** The school district’s rule addressing the "Defense and Indemnification of School District Employees" provided, in relevant part, that “2. Defense: (a) … the Board shall provide for the defense of the employee [defined, in part, as a member of the Board] in any civil action . . . arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties. This duty to provide a defense shall not arise where such civil action or proceeding is brought by or on behalf of the Board [emphasis supplied]….”
**** See, also, Barkan v New York Schools Insurance Reciprocal, 2009 NY Slip Op 06494, also decided on September 15, 2009 by the Appellate Division, Second Department. This action involved Barkan’s claim that New York Schools Insurance Reciprocal must defend and indemnify him in connection with the litigation brought against him and the other plaintiffs in Roslyn Union Free School District v Barkan [Supreme Court, Nassau County, Index No. 05-5946].”
This decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_06494.htm
The Appellate Division's decision in Barkan v Roslyn Union Free School Dist is posted on the Internet at:
Thursday, November 19, 2009
Employer’s denial of GLM §207-a(2) supplement to firefighters accidental retirement allowance based on unsworn statements held arbitrary
Matter of Ward v City of Long Beach, 2009 NY Slip Op 52297(U), Decided on October 30, 2009, Supreme Court, Nassau County, Judge Daniel R. Palmieri
Brian Ward, a firefighter receiving a disability retirement allowance from the New York Employees’ Retirement System, sued the City of Long Beach contending that the City’s denying him benefits otherwise payable pursuant to General Municipal Law §207-a(2) was arbitrary and capricious. He sought a court order compelling the City to provide him with such benefits.*
Judge Palmieri said that issue to adjudicated was whether the City acted in an arbitrary and capricious manner and without a rational basis in denying Ward the supplementary disability benefits he sought under General Municipal Law §207-a(2). The Retirement System had granted Ward’s application for a disability retirement allowance based on an injury to his knee earlier.
Reviewing the City explanation for denying Ward the supplementary benefits, Judge Palmieri’s said that the City’s refusal to pay the §207-a(2) supplement to Ward appeared to have been based largely upon an unsolicited report of Ward’s wife, Beverly Ward, with whom Ward was then involved in matrimonial litigation. Mrs. Ward reported that Ward had not been injured sliding down a fire pole during the course of employment as he had claimed, but rather while attending his daughter's varsity soccer game at Long Beach High School two days earlier.
As Mrs. Ward’s allegations “had criminal implications,” the matter was referred to the City's Police Department. The decision notes that “No police reports were generated” and although the matter was thereafter referred to the Nassau County District Attorney's office, “there is no indication that any further action was taken by any law enforcement agency.”
Judge Palmieri said that the “familiar standard for Article 78 review of a determination such as this, which was not the result of a hearing held at which evidence was taken, was whether or not it was arbitrary and capricious and had a rational basis.” He ruled that “Under the circumstances presented here” the City's determination did not have a rational basis.” Judge Palmieri then annulled the City’s denial of Ward’s §207-a(2) supplement to his disability retirement allowance.
* The payment claimed by Ward pursuant to §207-a(2): the difference between what would have been his regular wages had he not retired for disability and his New York State disability retirement allowance, which amount was to be paid by the City until his mandatory age of retirement.
The decision is posted on the Internet at:
Administrative Law Judge holds that an employee's failure to report for drug testing must be treated as the equivalent of failing a drug test
Department of Sanitation and Henry Morrison, OATH Index No. 894/09
OATH Administrative Law Judge Kara Miller recommended termination for a sanitation worker, Henry Morrison, after finding that he was guilty of failing to be at home after reporting sick on two occasions and also failing to report for a random drug test.
As to his failing to report for the drug test, Morrison’s defense: he was ill and could not travel to the location where the test was to be administered.
Judge Miller, however, found that there was no reason Morrison could not have reported to the test site as scheduled for the drug test, commenting that an employee's refusal to report for drug testing must be treated as the equivalent of failing a drug test.
However, Judge Miller dismissed one of the charges filed against Morrison: a charge that Morrison failed to report to the clinic on the second day of taking sick leave. Although the Department had revised its rule and currently required employees subject to its provisions to report to the Department’s clinic on the second day of sick leave, it was unable to demonstrate that Morrison had receive notice of the rule change.
The Department’s former rule required such employee to report to the Department’s clinic no later than forty-eight hours after requesting medical leave and Morrison had complied with that provision contending that he was unaware of the rule change.
As to the recommended penalty, dismissal, Judge Miller said that she had “requested and reviewed a copy of [Morrison’s] personnel abstract in order to make an appropriate penalty recommendation. She noted that Morrison had “an extensive disciplinary history,” including being found guilty of charges involving having a suspended license; absences without authorization and a failure to report to the clinic; failing to be home while on sick leave on two occasions and a failure to report an arrest.
Judge Miller said that Morrison had also be found guilty of charges involving fighting with a co-worker; insubordination and received a reprimand for fighting with a co-worker; absences without authorization; lateness; and violating the Department’s drug policy on two occasions.
The full text of Judge Miller’s decision is posted on the Internet at:
Matter of Outley v Upstate Med. Univ., 60 A.D.3d 1398*
Joanne Outley, an employee at SUNY’s Upstate Medical Center, was served with disciplinary charges alleging that she was guilty of excessive absences and disciplinary notifications UMC and Outley entered into a disciplinary settlement agreement that placed her on probation for a specified period of time and bar her taking any unauthorized absences.
Outley violated the terms of her disciplinary probation and was terminated. She challenged UMC’s action and won a Supreme Court decision annulling the Medical Center’s decision.
The Appellate Division, holding that “Supreme Court erred in granting Outley’s petition. It said that the record establishes that Outley had violated the settlement agreement with an unauthorized absence, thus providing the Center with a legally sufficient basis for terminating her employment that was neither arbitrary nor capricious. Further, said the court, Outley failed to establish that she "was dismissed in bad faith or for an improper or impermissible reason."
It should be remembered, however, that such action is permitted only in the event the individual violates one or more of the terms or condition of his or her probationary period.
Further, the specific terms and conditions of a disciplinary settlement could prove critical if the employee is terminated for his or her alleged failure to satisfy the terms of his or her disciplinary probation.
In Taylor v Cass, 505 N.Y.S.2d 929, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation. Under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was "adversely affected" by his "intoxication on the job" during the next six months.
Taylor, while subject to this probationary period, was terminated without a hearing for "failing to give a fair day's work" and "sleeping during scheduled working hours." He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor's dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.
* Motion for reargument or leave to appeal to the Court of Appeals denied, 63 A.D.3d 1672.
The full text of the decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_02162.htm
North Colonie Teachers Association, NYSUP/AFT/ NEA/AFT/CIO and North Colonie Central School District, Board decision, U-27717
The Board affirmed a decision of an ALJ dismissing an improper practice charge filed by the North Colonie Teachers Association (Association) alleging that the North Colonie Central School District (District) violated §209-a.1(d) of the Act when the District adopted a school calendar for the 2007-08 school year that included 188 workdays.
Based upon the evidence in the record, the Board concluded that the Association had failed to meet its burden of proof of establishing an enforceable past practice in the number of workdays within a school year.
The Board found that the Association had failed to rebut the District's evidence establishing that the District applies consistent objective factors resulting in a fluctuation in the respective number of work days each year.
These objective factors include annual variables linked to the general calendar year, including the number of workdays in each calendar month and the days of the week when certain holidays fall.
An individual whose rights could be affected by a decision by the Commissioner of Education must be named as a necessary party to the action
Appeal of Douglas Williams from action of the Board of Education of the North Colonie Central School District regarding an employment matter, Decisions of the Commissioner of Education, Decision No. 15,879
Douglas Williams challenged the determination of the Board of Education of the North Colonie Central School District to reinstate Timothy Bonk as its Director of Facilities following the completion of his “disciplinary suspension.”
Timothy Bonk, the district’s Director of Facilities, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. He and the District agreed to a “last chance” settlement of the charges, which provided for Mr. Bonk’s suspension for a period of time.
Objecting to the school board’s decision concerning Bonk’s employment by the school district made at a public meeting of the board, Williams asked the Commissioner to investigate a number of issues in an effort to have the Commissioner nullify the board’s action.
The Commissioner dismissed Williams’ appeal as untimely as appeal was filed more than 30 days after the board made its decision without explanation for the delay.
However, the Commissioner also noted that had the appeal been timely filed it would have been dismissed on other procedural grounds. Williams had failed to join a necessary party to the appeal, in this case Timothy Bonk.
If an individual’s rights would be adversely affected by a determination of an appeal, that individual is a necessary party and must be joined in the action. Joinder, said the Commissioner, requires that the individual be clearly named as a respondent in the caption of the appeal and served with a copy of the notice of petition and petition in order to inform the individual of the pending action and that he or she may respond to the petition and enter a defense.
As Bonk’s rights could be adversely affected by the Commissioner's determination on the merits of Williams' appeal, he was a necessary party in this action.
The full text of the Commissioner’s ruling is posted on the Internet at:
Handbooks focusing on New York State and Municipal Public Personnel Law:
The Discipline Book, - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html
A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://booklocker.com/books/7401.html
The Layoff, Preferred List and Reinstatement Manual - a 645 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
Disability Leave for fire, police and other public sector personnel - a 1098 page e-book focusing on administering General Municipal Law §§207-a/207-c and other laws, rules, regulations and court decisions. For more information click on http://booklocker.com/books/3916.html
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