Failing to appear for an examination trumps non-selection retaliation claim
Williams v City of New York, 38 A.D.3d 238
Gina Williams, complained that she was rejected for employment as a correction officer with the New York City Department of Corrections in retaliation for her filing a sexual harassment claim against her employer, the New York City Housing Authority.
The Appellate Division, First Department ruled that Williams failed to establish a prima facie claim of retaliation as there was no evidence of a causal connection between the filing of the harassment claim in 1998 and the denial of her appointment as a correction officer some two years later.
Significantly, Williams had been approved for appointment as a corrections officer on the condition that she take a psychological examination. She failed to appear for the examination.
This, said the court, was fatal to Williams’ lawsuit claiming retaliation since “even were it determined that there was a prima facie case of retaliation, [Williams] failed to show that the legitimate, nondiscriminatory reasons given by Corrections for their actions were mere pretext.”
For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/03/sexual-harassment-claim-rejected.html
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL
January 20, 2011
Eligibility for unemployment insurance determined by the law in place at the time of the filing of a claim for benefits
Eligibility for unemployment insurance determined by the law in place at the time of the filing of a claim for benefits
Dwyer v Commissioner of Labor, 273 A.D.2d 675
In June 1997 the Unemployment Insurance Appeals Board ruled that former Orange County Personnel Director Joseph M. Dwyer was entitled to unemployment insurance benefits.
The Board subsequently reopened its prior decision and on March 19, 1998 issued a ruling rescinding its June 1997 decision. This action reinstated a prior determination that Dwyer’s work as Orange County Commissioner of Personnel ending in November 1994 was excluded from coverage under Labor Law Section 565(2)(e) because it was a major nontenured policy making or advisory position. Dwyer did not appeal the Board’s March 1998 ruling.
On May 18, 1999 the Board agreed with the department that Dwyer had to pay a recoverable overpayment of $7,800 in unemployment insurance benefits. Dwyer appealed the May 1999 determination.
The Appellate Division affirmed the Board’s determination, noting that while Dwyer contended that the Board abused its discretion when it reopened its June 1997 decision in his favor, he did not appeal the March 1998 decision that held he was not eligible for unemployment insurance benefits. Accordingly, the court said it could not consider any challenge to the March 1998 ruling by the Board in this appeal.
The Appellate Division noted that while Section 597 was amended in 1998 so as to limit the recoverability of certain unemployment insurance overpayments, the legislation is not retroactive and applies only to benefit claims filed on or after May 19, 1998, the effective date of the amendment.
Accordingly, Dwyer was not covered by any of its provisions.
Dwyer v Commissioner of Labor, 273 A.D.2d 675
In June 1997 the Unemployment Insurance Appeals Board ruled that former Orange County Personnel Director Joseph M. Dwyer was entitled to unemployment insurance benefits.
The Board subsequently reopened its prior decision and on March 19, 1998 issued a ruling rescinding its June 1997 decision. This action reinstated a prior determination that Dwyer’s work as Orange County Commissioner of Personnel ending in November 1994 was excluded from coverage under Labor Law Section 565(2)(e) because it was a major nontenured policy making or advisory position. Dwyer did not appeal the Board’s March 1998 ruling.
On May 18, 1999 the Board agreed with the department that Dwyer had to pay a recoverable overpayment of $7,800 in unemployment insurance benefits. Dwyer appealed the May 1999 determination.
The Appellate Division affirmed the Board’s determination, noting that while Dwyer contended that the Board abused its discretion when it reopened its June 1997 decision in his favor, he did not appeal the March 1998 decision that held he was not eligible for unemployment insurance benefits. Accordingly, the court said it could not consider any challenge to the March 1998 ruling by the Board in this appeal.
The Appellate Division noted that while Section 597 was amended in 1998 so as to limit the recoverability of certain unemployment insurance overpayments, the legislation is not retroactive and applies only to benefit claims filed on or after May 19, 1998, the effective date of the amendment.
Accordingly, Dwyer was not covered by any of its provisions.
January 19, 2011
Veteran who served in time of war employed and characterized as an “independent officer” held not within the ambit of §75 of the Civil Service Law
Veteran who served in time of war employed and characterized as an “independent officer” held not within the ambit of §75 of the Civil Service Law
Matter of DiBattista v Mcdonough, 2011 NY Slip Op 00131, Appellate Division, Third Department
After the Chief of Police of the Town of Rosendale Chief of Police, Michael DiBattista, was notified by the Town Supervisor, Patrick McDonough, that he had not been reappointed to the position at the annual organizational meeting of the Town Board, DiBattista filed a petition pursuant to CPLR Article 78 seeking a court order reinstating him to the position of Chief of Police with back pay, longevity pay and compensatory time.
DiBattista argued that as an honorably discharged veteran of the armed services, he should not have been discharged without a hearing.*
Supreme Court determined that DiBattista was not entitled to the statutory protection because he did not hold his position as Chief of Police "by permanent appointment."
Noting that §16-3 of the Town’s Code provides that the Chief of Police "shall be appointed annually on January 1 of each year" and his or her term shall continue "until he [or she] is reappointed or succeeded," Supreme Court apparently deemed DiBattista to hold a “term appointment” and thus “permanent” for the purposes of the Civil Service Law only during the specified statutory term of the office.**
The Appellate Division said it agreed and affirm the lower court’s determination.
As to DiBattista’s “permanent status” in the position, the Appellate Division ruled that that time of the Board’s action, DiBattista “no longer held the status of an appointed official with tenure for a limited term; instead, he held his position as a holdover and was an at-will employee not entitled to the protections of Civil Service Law §75.”***
Additionally, the Appellate Division said that DiBattista “was further excluded from the protection of Civil Service Law §75 because his position as Chief of Police was independent in nature.”
Citing Matter of Nolan v Tully, 52 AD2d 295, 297 [1976], appeal dismissed 40 NY2d 844 [1976], lv denied 40 NY2d 803 [1976], the Appellate Division explained that Civil Service Law §75(1)(b) was intended to apply only to veterans in subordinate positions and does not include those who "may be characterized as independent officers." Based on the job description for Chief of Police, the Appellate Division concluded that the position clearly requires independent judgment and initiative and thus he was an “independent” officer.
As to DiBattista’s argument that, as a member of the Town of Rosendale Police Department, he had the right to a pretermination hearing under Town Law §155, the Appellate Division said that both Town Law §155 and Civil Service Law §75 relate to the discipline of civil service employees, they are in pari materia**** and are to be read in conjunction so that they complement one another.
However, the court explained, “it is apparent that Town Law §155 only applies to police department members who, unlike [DiBattista], hold permanent appointments. Ruling that DiBattista did not have property interest in the position, the Appellate Division concluded that he was not entitled to the protection of Town Law §155.
* Civil Service Law §75(1)(b) provides, in pertinent part, that a person holding a position by permanent appointment or employment in the classified service “who was honorably discharged or released under honorable circumstances from the armed forces of the United States having served therein as such member in time of war as defined in section eighty-five of this chapter” is subject to its provisions.
** Section 15.1(b) sets out another example of a statutory “term of office” whereby “The term of office of a [county] personnel officer shall be six years.”
*** Presumably §75 would obtain had the Town sought to remove DiBattista while he was serving as a “one-year appointee” in contrast to his serving in a “holdover” capacity.
**** Two laws relating to the same subject matter that must be analyzed with each other.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00131.htm
Matter of DiBattista v Mcdonough, 2011 NY Slip Op 00131, Appellate Division, Third Department
After the Chief of Police of the Town of Rosendale Chief of Police, Michael DiBattista, was notified by the Town Supervisor, Patrick McDonough, that he had not been reappointed to the position at the annual organizational meeting of the Town Board, DiBattista filed a petition pursuant to CPLR Article 78 seeking a court order reinstating him to the position of Chief of Police with back pay, longevity pay and compensatory time.
DiBattista argued that as an honorably discharged veteran of the armed services, he should not have been discharged without a hearing.*
Supreme Court determined that DiBattista was not entitled to the statutory protection because he did not hold his position as Chief of Police "by permanent appointment."
Noting that §16-3 of the Town’s Code provides that the Chief of Police "shall be appointed annually on January 1 of each year" and his or her term shall continue "until he [or she] is reappointed or succeeded," Supreme Court apparently deemed DiBattista to hold a “term appointment” and thus “permanent” for the purposes of the Civil Service Law only during the specified statutory term of the office.**
The Appellate Division said it agreed and affirm the lower court’s determination.
As to DiBattista’s “permanent status” in the position, the Appellate Division ruled that that time of the Board’s action, DiBattista “no longer held the status of an appointed official with tenure for a limited term; instead, he held his position as a holdover and was an at-will employee not entitled to the protections of Civil Service Law §75.”***
Additionally, the Appellate Division said that DiBattista “was further excluded from the protection of Civil Service Law §75 because his position as Chief of Police was independent in nature.”
Citing Matter of Nolan v Tully, 52 AD2d 295, 297 [1976], appeal dismissed 40 NY2d 844 [1976], lv denied 40 NY2d 803 [1976], the Appellate Division explained that Civil Service Law §75(1)(b) was intended to apply only to veterans in subordinate positions and does not include those who "may be characterized as independent officers." Based on the job description for Chief of Police, the Appellate Division concluded that the position clearly requires independent judgment and initiative and thus he was an “independent” officer.
As to DiBattista’s argument that, as a member of the Town of Rosendale Police Department, he had the right to a pretermination hearing under Town Law §155, the Appellate Division said that both Town Law §155 and Civil Service Law §75 relate to the discipline of civil service employees, they are in pari materia**** and are to be read in conjunction so that they complement one another.
However, the court explained, “it is apparent that Town Law §155 only applies to police department members who, unlike [DiBattista], hold permanent appointments. Ruling that DiBattista did not have property interest in the position, the Appellate Division concluded that he was not entitled to the protection of Town Law §155.
* Civil Service Law §75(1)(b) provides, in pertinent part, that a person holding a position by permanent appointment or employment in the classified service “who was honorably discharged or released under honorable circumstances from the armed forces of the United States having served therein as such member in time of war as defined in section eighty-five of this chapter” is subject to its provisions.
** Section 15.1(b) sets out another example of a statutory “term of office” whereby “The term of office of a [county] personnel officer shall be six years.”
*** Presumably §75 would obtain had the Town sought to remove DiBattista while he was serving as a “one-year appointee” in contrast to his serving in a “holdover” capacity.
**** Two laws relating to the same subject matter that must be analyzed with each other.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00131.htm
Denial of an Article 75 petition to vacate an arbitration award requires that the court confirm the award
Denial of an Article 75 petition to vacate an arbitration award requires that the court confirm the award
Matter of Perilli v New York State Dept. of Correctional Servs., 2011 NY Slip Op 00229, Appellate Division, Second Department
John Perilli appealed an order of the Supreme Court that denied his Article 75 petition challenging an arbitration award. The Appellate Division sustained the lower court’s determination and dismissed his appeal.
Perilli contended that the arbitrator had [1] prejudiced his rights; [2] improperly admitted evidence of prior grievances he had filed or that had been filed against him; and [3] the arbitrator’s award was against public policy.
The Appellate Division rejected each of Perilli’s contentions.
First the court ruled that Perilli had failed to meet his burden of proving "by clear and convincing evidence" that alleged impropriety or misconduct of the arbitrator prejudiced his rights or the integrity of the arbitration process or award.
As to the arbitrator’s admission of evidence of prior grievances, the court said that “the admission of evidence of prior grievances filed by and against [Perilli] did not constitute misconduct by the arbitrator,” explaining that "[a]n arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be."
Also rejected by the Appellate Division was Perilli’s motion to vacate the arbitration award on the theory that it violated public policy, holding that “ vacatur of the arbitration award is not warranted [as] the award did not violate a strong public policy, was not irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power."
The Appellate Division also commented that if a motion to vacate or modify an arbitration award is denied, the court, in the alternative, must confirm the award.
Accordingly, as Supreme Court had denied Perilli’s petition seeking to vacate the award, and the Appellate Division had concurred with the lower court’s ruling, the Appellate Division held that the arbitrator's award must be confirmed.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00229.htm
Matter of Perilli v New York State Dept. of Correctional Servs., 2011 NY Slip Op 00229, Appellate Division, Second Department
John Perilli appealed an order of the Supreme Court that denied his Article 75 petition challenging an arbitration award. The Appellate Division sustained the lower court’s determination and dismissed his appeal.
Perilli contended that the arbitrator had [1] prejudiced his rights; [2] improperly admitted evidence of prior grievances he had filed or that had been filed against him; and [3] the arbitrator’s award was against public policy.
The Appellate Division rejected each of Perilli’s contentions.
First the court ruled that Perilli had failed to meet his burden of proving "by clear and convincing evidence" that alleged impropriety or misconduct of the arbitrator prejudiced his rights or the integrity of the arbitration process or award.
As to the arbitrator’s admission of evidence of prior grievances, the court said that “the admission of evidence of prior grievances filed by and against [Perilli] did not constitute misconduct by the arbitrator,” explaining that "[a]n arbitrator is not bound by principles of substantive law or rules of evidence, and may do justice and apply his or her own sense of law and equity to the facts as he or she finds them to be."
Also rejected by the Appellate Division was Perilli’s motion to vacate the arbitration award on the theory that it violated public policy, holding that “ vacatur of the arbitration award is not warranted [as] the award did not violate a strong public policy, was not irrational, and did not manifestly exceed a specific, enumerated limitation on the arbitrator's power."
The Appellate Division also commented that if a motion to vacate or modify an arbitration award is denied, the court, in the alternative, must confirm the award.
Accordingly, as Supreme Court had denied Perilli’s petition seeking to vacate the award, and the Appellate Division had concurred with the lower court’s ruling, the Appellate Division held that the arbitrator's award must be confirmed.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00229.htm
Duty to file disciplinary charges
Duty to file disciplinary charges
Anonymous v Nassau County, Supreme Court, Nassau County, Justice Phelan [Not selected for publication in the Official Reports]
From time to time the question of whether a public employer acted reasonably when it filed disciplinary charges against an individual is raised in the course of litigation. The Lindenhurst case, brought by a school teacher against whom disciplinary charges had been served and who then sued the district for malicious prosecution, raised this issue.
The Lindenhurst Union Free School District filed Section 3020-a disciplinary charges against one of its teachers, after it was reported that the teacher was a voyeur who looked at photographs of teenage girls to sexually satisfy himself.
A Nassau County police detective had found two envelopes of developed photographs in a parking lot. The pictures were of women, mostly teenagers, clothed or in bathing suits. The detective determined that the teacher, using a fictitious name and address, had brought the film to a processor for developing. Ultimately, the photographs were determined to have been take from the teacher's home.
No criminal charges were filed against the educator but the New York State Education Department was advised of the situation and provided with a copy of a statement in which the detective claimed the teacher had told him that he was a voyeur who looked at photographs to sexually satisfy himself. Eventually this information was transmitted to the superintendent and school board.
The educator was charged with (1) conduct unbecoming a teacher based on allegations that he took photographs of unknowing females for the purpose of using these photos for sexual gratification; and (2) lying to the Associate Superintendent about taking the photos .... As a result the teacher was suspended with pay but ultimately the board dismissed the Section 3020-a charges and reinstated him to his position.
Contending that the board’s action violated his civil rights [42 USC 1983], the teacher sued the district and its superintendent in federal court. Federal District Court Justice Joanna Seybert dismissed his federal claims, holding that the actions taken by the district were reasonable. In the words of the court, [t]he information these defendants had obtained led them to take appropriate and reasonable actions under the circumstances as they knew them to be.
The educator, however, had also filed a state law claim against the district and the superintendent for malicious prosecution. The county and the detective were also named as defendants in the State action. State Supreme Court Justice Thomas P. Phelan ruled that the teacher’s state law claims against the district and the superintendent were barred by the doctrine of collateral estoppel as the federal court clearly determined that defendant School District and Superintendent acted properly in preferring charges pursuant to Education Law Section 3020-a against the teacher.
Justice Phelan said that he agreed with the district’s argument that presented with information that a school teacher engaged in sexual self-stimulation with the aid of photographs of school-aged children -- whether ultimately true or not -- the defendants would have been remiss in their duties had they taken no action at all.
Was the district required to file disciplinary charges against the educator after receiving the report from the Education Department? Not necessarily, as the decision by the Commissioner of Education in the Covino case indicates [Matter of Covino, Decision 11227]. The Covino decision holds that a board is not required to serve disciplinary charges against an individual simply because it is advised of allegations of wrongdoing on the part of the employee.
A parent complained that Covino, a teacher-coach, had been involved in the hazing of a student by other students. The parent wanted the school board to dismiss Covino and a bus driver who was alleged to have been present during the incident. The board’s response to the parent’s complaint was to suspend the teacher from his coaching duties. It did not initiate formal disciplinary action against either the teacher or the driver.
This, however, did not satisfy the parent and he appealed to the Commissioner of Education in an effort to obtain an order requiring the board to initiate disciplinary action seeking removal of the teacher.
Noting that a resident of a school district may file disciplinary charges against a tenured teacher, the Commissioner said that a board of education must have a reasonable basis for its decision whether or not to proceed with the disciplinary action.
The Commissioner decided that board’s investigation of the incident, followed by its relieving the teacher of his coaching duties was sufficient under the circumstances. He ruled that the board had a reasonable basis for the action it took and its decision not to pursue further disciplinary action was neither arbitrary nor capricious.
The test set out by the Commissioner in the Covino decision: did the board investigate the allegations and then make a reasonable determination whether or not to take further action?
The employer, once having completed its investigation, essentially has the following options available to it:
1. Decide that filing disciplinary charges or taking other administrative action against the individual is unwarranted;
2. Decide that there is insufficient evidence to justify the filing of disciplinary charges but that some other administrative action, such as counseling the individual, is appropriate.
3. Decide that filing disciplinary charges against the individual is appropriate under the circumstances.
If the employer determines that it is appropriate to bring disciplinary action against an employee, may it demand that the individual resign or be served with charges? In a word: YES!
In Rychlick v Coughlin, 63 NY2d 643, a case involving a tenured State employee, the Court of Appeals said the employer could threaten the employee with disciplinary action if he or she did not resign. The court pointed out that threatening to do what the appointing authority had a legal right to do -- file disciplinary charges against the individual -- did not constitute coercion so as to make the resignation involuntary.
Sometimes the employer will agree not to reveal the reasons underlying its demanding the employee’s resignation to potential employers in the future. The employer’s ability to agree that the reasons leading to the demand for the resignation shall remain confidential has been tempered, however.
In response to the so-called silent resignation in cases involving child abuse in an educational setting by a school employee, the New York State Legislature has declared that making an agreement to maintain confidentiality in resignation situations where allegations of child abuse have been leveled against an individual is against the public policy of this State.
A new provision, Education Law Section 1133, bars a school administrator or superintendent from agreeing to withhold the fact that an allegation of child abuse in an educational setting was involved in the separation of the employee or volunteer in return for the individual’s resignation or agreement to a suspension from his or her position.
A violation of Section 1133 is a Class D felony and, in addition, shall also be punishable by a civil penalty not to exceed $20,000.
In addition, Subdivision 3 of Section 1133 provides that “[a]ny superintendent of schools who in good faith reports to law enforcement officials information regarding allegations of child abuse or a resignation as required by this article shall have immunity from any liability, civil or criminal, which might otherwise result by reason of such actions.”
___________________
The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State, is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.
Anonymous v Nassau County, Supreme Court, Nassau County, Justice Phelan [Not selected for publication in the Official Reports]
From time to time the question of whether a public employer acted reasonably when it filed disciplinary charges against an individual is raised in the course of litigation. The Lindenhurst case, brought by a school teacher against whom disciplinary charges had been served and who then sued the district for malicious prosecution, raised this issue.
The Lindenhurst Union Free School District filed Section 3020-a disciplinary charges against one of its teachers, after it was reported that the teacher was a voyeur who looked at photographs of teenage girls to sexually satisfy himself.
A Nassau County police detective had found two envelopes of developed photographs in a parking lot. The pictures were of women, mostly teenagers, clothed or in bathing suits. The detective determined that the teacher, using a fictitious name and address, had brought the film to a processor for developing. Ultimately, the photographs were determined to have been take from the teacher's home.
No criminal charges were filed against the educator but the New York State Education Department was advised of the situation and provided with a copy of a statement in which the detective claimed the teacher had told him that he was a voyeur who looked at photographs to sexually satisfy himself. Eventually this information was transmitted to the superintendent and school board.
The educator was charged with (1) conduct unbecoming a teacher based on allegations that he took photographs of unknowing females for the purpose of using these photos for sexual gratification; and (2) lying to the Associate Superintendent about taking the photos .... As a result the teacher was suspended with pay but ultimately the board dismissed the Section 3020-a charges and reinstated him to his position.
Contending that the board’s action violated his civil rights [42 USC 1983], the teacher sued the district and its superintendent in federal court. Federal District Court Justice Joanna Seybert dismissed his federal claims, holding that the actions taken by the district were reasonable. In the words of the court, [t]he information these defendants had obtained led them to take appropriate and reasonable actions under the circumstances as they knew them to be.
The educator, however, had also filed a state law claim against the district and the superintendent for malicious prosecution. The county and the detective were also named as defendants in the State action. State Supreme Court Justice Thomas P. Phelan ruled that the teacher’s state law claims against the district and the superintendent were barred by the doctrine of collateral estoppel as the federal court clearly determined that defendant School District and Superintendent acted properly in preferring charges pursuant to Education Law Section 3020-a against the teacher.
Justice Phelan said that he agreed with the district’s argument that presented with information that a school teacher engaged in sexual self-stimulation with the aid of photographs of school-aged children -- whether ultimately true or not -- the defendants would have been remiss in their duties had they taken no action at all.
Was the district required to file disciplinary charges against the educator after receiving the report from the Education Department? Not necessarily, as the decision by the Commissioner of Education in the Covino case indicates [Matter of Covino, Decision 11227]. The Covino decision holds that a board is not required to serve disciplinary charges against an individual simply because it is advised of allegations of wrongdoing on the part of the employee.
A parent complained that Covino, a teacher-coach, had been involved in the hazing of a student by other students. The parent wanted the school board to dismiss Covino and a bus driver who was alleged to have been present during the incident. The board’s response to the parent’s complaint was to suspend the teacher from his coaching duties. It did not initiate formal disciplinary action against either the teacher or the driver.
This, however, did not satisfy the parent and he appealed to the Commissioner of Education in an effort to obtain an order requiring the board to initiate disciplinary action seeking removal of the teacher.
Noting that a resident of a school district may file disciplinary charges against a tenured teacher, the Commissioner said that a board of education must have a reasonable basis for its decision whether or not to proceed with the disciplinary action.
The Commissioner decided that board’s investigation of the incident, followed by its relieving the teacher of his coaching duties was sufficient under the circumstances. He ruled that the board had a reasonable basis for the action it took and its decision not to pursue further disciplinary action was neither arbitrary nor capricious.
The test set out by the Commissioner in the Covino decision: did the board investigate the allegations and then make a reasonable determination whether or not to take further action?
The employer, once having completed its investigation, essentially has the following options available to it:
1. Decide that filing disciplinary charges or taking other administrative action against the individual is unwarranted;
2. Decide that there is insufficient evidence to justify the filing of disciplinary charges but that some other administrative action, such as counseling the individual, is appropriate.
3. Decide that filing disciplinary charges against the individual is appropriate under the circumstances.
If the employer determines that it is appropriate to bring disciplinary action against an employee, may it demand that the individual resign or be served with charges? In a word: YES!
In Rychlick v Coughlin, 63 NY2d 643, a case involving a tenured State employee, the Court of Appeals said the employer could threaten the employee with disciplinary action if he or she did not resign. The court pointed out that threatening to do what the appointing authority had a legal right to do -- file disciplinary charges against the individual -- did not constitute coercion so as to make the resignation involuntary.
Sometimes the employer will agree not to reveal the reasons underlying its demanding the employee’s resignation to potential employers in the future. The employer’s ability to agree that the reasons leading to the demand for the resignation shall remain confidential has been tempered, however.
In response to the so-called silent resignation in cases involving child abuse in an educational setting by a school employee, the New York State Legislature has declared that making an agreement to maintain confidentiality in resignation situations where allegations of child abuse have been leveled against an individual is against the public policy of this State.
A new provision, Education Law Section 1133, bars a school administrator or superintendent from agreeing to withhold the fact that an allegation of child abuse in an educational setting was involved in the separation of the employee or volunteer in return for the individual’s resignation or agreement to a suspension from his or her position.
A violation of Section 1133 is a Class D felony and, in addition, shall also be punishable by a civil penalty not to exceed $20,000.
In addition, Subdivision 3 of Section 1133 provides that “[a]ny superintendent of schools who in good faith reports to law enforcement officials information regarding allegations of child abuse or a resignation as required by this article shall have immunity from any liability, civil or criminal, which might otherwise result by reason of such actions.”
___________________
The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State, is available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic handbook.
General Municipal Law Section 207-c disability benefits forfeited following a change of residence
General Municipal Law Section 207-c disability benefits forfeited following a change of residence
Kevin O'Connor Et Al., v Police Commission Of The Town Of Clarkstown et al, 221 AD2d 444
Kevin O'Connor, a Town of Clarkstown police officer, was terminated from his position by the Police Commission pursuant to 30.1.d of the Public Officers Law because he "ceased to be an inhabitant within the geographical restrictions" set by law. Section 30.1.d provides that the public office "shall be vacant" if the officer does not live in the appropriate geographical area.* Clarkstown also discontinued paying O’Connor disability benefits pursuant to 207-c of the General Municipal Law following a work-related injury at the time he moved to Warren County.
O'Connor had moved to Warren County. Clarkstown is in Rockland County. Warren and Rockland Counties are not contiguous.
Significantly, the Appellate Division ruled that "the fact that O'Connor was disabled and entitled to the benefits of General Municipal Law Section 207-c(1) does not render Public Officers Law Section 30 inapplicable." Further, O’Connor could not cure this difficulty by returning and again becoming a resident of Rockland County or to a county contiguous to Rockland County.
The Appellate Division said that there was ample evidence to support the determination that O'Connor had ceased to be an inhabitant of the geographical area required for members of the Clarkstown Police Department. Accordingly, the Town’s decision was neither arbitrary nor capricious.
The Appellate Division also rejected O'Connor's claim that he satisfied Section 3.2's residence requirement because he "occasionally stayed" at an in-laws apartment that was within the geographical area."
* Section 3.2 of the Public Officers Law permits a police officer to reside in the same or a contiguous county in which the political subdivision employing the officer is located. Subdivision 19 of Section 3.2 sets out residence provisions applicable to police officers of the City of New York.
_______________
General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for further information about this electronic handbook.
Kevin O'Connor Et Al., v Police Commission Of The Town Of Clarkstown et al, 221 AD2d 444
Kevin O'Connor, a Town of Clarkstown police officer, was terminated from his position by the Police Commission pursuant to 30.1.d of the Public Officers Law because he "ceased to be an inhabitant within the geographical restrictions" set by law. Section 30.1.d provides that the public office "shall be vacant" if the officer does not live in the appropriate geographical area.* Clarkstown also discontinued paying O’Connor disability benefits pursuant to 207-c of the General Municipal Law following a work-related injury at the time he moved to Warren County.
O'Connor had moved to Warren County. Clarkstown is in Rockland County. Warren and Rockland Counties are not contiguous.
Significantly, the Appellate Division ruled that "the fact that O'Connor was disabled and entitled to the benefits of General Municipal Law Section 207-c(1) does not render Public Officers Law Section 30 inapplicable." Further, O’Connor could not cure this difficulty by returning and again becoming a resident of Rockland County or to a county contiguous to Rockland County.
The Appellate Division said that there was ample evidence to support the determination that O'Connor had ceased to be an inhabitant of the geographical area required for members of the Clarkstown Police Department. Accordingly, the Town’s decision was neither arbitrary nor capricious.
The Appellate Division also rejected O'Connor's claim that he satisfied Section 3.2's residence requirement because he "occasionally stayed" at an in-laws apartment that was within the geographical area."
* Section 3.2 of the Public Officers Law permits a police officer to reside in the same or a contiguous county in which the political subdivision employing the officer is located. Subdivision 19 of Section 3.2 sets out residence provisions applicable to police officers of the City of New York.
_______________
General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/ for further information about this electronic handbook.
The ground rules for individual holding two public offices simultaneously
The ground rules for individual holding two public offices simultaneously
Informal Opinions of the Attorney General, Informal Opinion 2000-9
Wondering if an attorney may simultaneously hold two different public offices? The answer: it depends on the situation!
The Attorney General recently advised Columbia County Attorney Beth A. O’Connor that an assistant county attorney could also serve as the mayor of a city located within the County (Informal Opinion 2000-9).
In contrast, the attorneys for Jefferson-Lewis BOCES were told that the office of district attorney was incompatible with that official’s membership on a BOCES or school board within his or her jurisdiction. [Informal Opinion 2000-13].
The standard applied by the Attorney General, citing Ryan v Green, 58 NY 295, is that except where prohibited by law, one person may hold two offices simultaneously unless they are incompatible.
What constitutes incompatibility for the purposes of dual office holding? Two offices are incompatible if one office is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices.
In the assistant county attorney/mayor situation the Attorney General indicated that the two positions were compatible and based on the representation that the assistant county attorney would not engage in any legal matters involving the city, the duties of the two positions did not appear inconsistent.
In the district attorney/BOCES-school board situation, the Attorney General said that there appeared to be a conflict between the two offices in view of the district attorney’s broad discretion in determining when and in what manner to investigate suspected crimes. In addition, the Attorney General said that in view of the policy making functions involved in the BOCES/school board position, this dual office holding raises questions as to whether the district attorney can impartially carry out his [or her] broad prosecutorial discretion and, therefore, tends to undermine public confidence in the integrity of government.
In another dual office situation, the Attorney General concluded that an individual could simultaneously serve as a town assessor and as a member of a school board of a district that included the town [Informal Opinion 2000-14] because a town assessor determines the value of real property for the purposes of taxation while a school board member determines policy for the district.
Informal Opinions of the Attorney General, Informal Opinion 2000-9
Wondering if an attorney may simultaneously hold two different public offices? The answer: it depends on the situation!
The Attorney General recently advised Columbia County Attorney Beth A. O’Connor that an assistant county attorney could also serve as the mayor of a city located within the County (Informal Opinion 2000-9).
In contrast, the attorneys for Jefferson-Lewis BOCES were told that the office of district attorney was incompatible with that official’s membership on a BOCES or school board within his or her jurisdiction. [Informal Opinion 2000-13].
The standard applied by the Attorney General, citing Ryan v Green, 58 NY 295, is that except where prohibited by law, one person may hold two offices simultaneously unless they are incompatible.
What constitutes incompatibility for the purposes of dual office holding? Two offices are incompatible if one office is subordinate to the other or if there is an inherent inconsistency between the duties of the two offices.
In the assistant county attorney/mayor situation the Attorney General indicated that the two positions were compatible and based on the representation that the assistant county attorney would not engage in any legal matters involving the city, the duties of the two positions did not appear inconsistent.
In the district attorney/BOCES-school board situation, the Attorney General said that there appeared to be a conflict between the two offices in view of the district attorney’s broad discretion in determining when and in what manner to investigate suspected crimes. In addition, the Attorney General said that in view of the policy making functions involved in the BOCES/school board position, this dual office holding raises questions as to whether the district attorney can impartially carry out his [or her] broad prosecutorial discretion and, therefore, tends to undermine public confidence in the integrity of government.
In another dual office situation, the Attorney General concluded that an individual could simultaneously serve as a town assessor and as a member of a school board of a district that included the town [Informal Opinion 2000-14] because a town assessor determines the value of real property for the purposes of taxation while a school board member determines policy for the district.
January 18, 2011
Beware of Face Book
Beware of Face Book
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Can employers get access to your Face Book account? Increasingly, the answer may be yes. In a New York case, where the plaintiff's physical condition was at issue, a lower court judge ordered that a defendant be granted access, Romano v. Steelcase, Inc., ___Misc.3d____(Suffolk Co. 2010). See also, Law.com discussion.
There are also some cases granting disclosure of Face Book accounts in the context of attorney disciplinary proceedings as discussed in Legal Prof Blog.
Moral of the story: Beware what you post on the internet. It can come back to haunt you!
Mitchell H. Rubinstein
Hat Tip: Legal Writing Prof Blog
NYPPL Comments: See, also, Matson v. Board of Education of the School District of City of New York, USCA, 2nd Circuit, 09-3773-cv.
The Matson decision by the U.S. Second Circuit Court of Appeals concludes that “Not all ‘serious medical conditions’ are protected by a constitutional right to privacy” and is posted by NYPPL at http://publicpersonnellaw.blogspot.com/2011/01/not-all-serious-medical-conditions-are.html
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Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
Can employers get access to your Face Book account? Increasingly, the answer may be yes. In a New York case, where the plaintiff's physical condition was at issue, a lower court judge ordered that a defendant be granted access, Romano v. Steelcase, Inc., ___Misc.3d____(Suffolk Co. 2010). See also, Law.com discussion.
There are also some cases granting disclosure of Face Book accounts in the context of attorney disciplinary proceedings as discussed in Legal Prof Blog.
Moral of the story: Beware what you post on the internet. It can come back to haunt you!
Mitchell H. Rubinstein
Hat Tip: Legal Writing Prof Blog
NYPPL Comments: See, also, Matson v. Board of Education of the School District of City of New York, USCA, 2nd Circuit, 09-3773-cv.
The Matson decision by the U.S. Second Circuit Court of Appeals concludes that “Not all ‘serious medical conditions’ are protected by a constitutional right to privacy” and is posted by NYPPL at http://publicpersonnellaw.blogspot.com/2011/01/not-all-serious-medical-conditions-are.html
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At-will employee’s claims of wrongful termination and defamation rejected by court
At-will employee’s claims of wrongful termination and defamation rejected by court
DiLacio v New York City Dist. Council of United Bhd. of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department
George DiLacio, Jr., sued the United Brotherhood alleging “wrongful termination of employment and defamation” when it included the phrase “severe dereliction of duty” in the letter it sent to him terminating his employment.
The Appellate Division rejected DiLacio’s allegations, noting that because he was “an employee at will,” his argument that the Brotherhood violated its duty to terminate his employment "only in good faith and with fair dealing" failed to state a valid cause of action under New York law.
Under New York law, said the court, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."
The Appellate Division also rejected DiLacio’s claim of defamation, explaining that although the letter advising him of his termination contained the phrase "severe dereliction of duty," the letter had not “been published” to anyone other than DiLacio himself.
NYPPL Comments: In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.
As the court found that that there was no “contemporaneous public announcement” of the Brotherhood's statement, presumably DiLacio did not have a right to demand a “name-clearing hearing.” [See, also, Sassaman v Brant, 70 AD3d 1026, a lawsuit triggered by an employee's complaint to a superior concerning a co-worker’s conduct, summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2010/03/employees-memorandum-to-her-superior.html ].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm
DiLacio v New York City Dist. Council of United Bhd. of Carpenters & Joiners of Am., 2011 NY Slip Op 00175, Appellate Division, Second Department
George DiLacio, Jr., sued the United Brotherhood alleging “wrongful termination of employment and defamation” when it included the phrase “severe dereliction of duty” in the letter it sent to him terminating his employment.
The Appellate Division rejected DiLacio’s allegations, noting that because he was “an employee at will,” his argument that the Brotherhood violated its duty to terminate his employment "only in good faith and with fair dealing" failed to state a valid cause of action under New York law.
Under New York law, said the court, "absent a constitutionally impermissible purpose, a statutory proscription, or an express limitation in the individual contract of employment, an employer's right at any time to terminate an employment at will remains unimpaired."
The Appellate Division also rejected DiLacio’s claim of defamation, explaining that although the letter advising him of his termination contained the phrase "severe dereliction of duty," the letter had not “been published” to anyone other than DiLacio himself.
NYPPL Comments: In Donato v Plainview-Old Bethpage School District, 96 F.3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence.
As the court found that that there was no “contemporaneous public announcement” of the Brotherhood's statement, presumably DiLacio did not have a right to demand a “name-clearing hearing.” [See, also, Sassaman v Brant, 70 AD3d 1026, a lawsuit triggered by an employee's complaint to a superior concerning a co-worker’s conduct, summarized in NYPPL at http://publicpersonnellaw.blogspot.com/2010/03/employees-memorandum-to-her-superior.html ].
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00175.htm
Federal Court sustains employer application for employee’s involuntary retirement for disability
Federal Court sustains employer application for employee’s involuntary retirement for disability
Campbell v City of New York, USDC, SDNY
Jonathan Campbell, claiming that the City of New York deprived him of liberty and property without due process of law in violation of his Fourteenth Amendment rights and his civil rights under 42 USC 1983 when it found him mentally incapacitated and involuntarily retiring him from his position as a New York City Transit Authority [NYCTA] police officer, sued the City and the New York City Employees’ Retirement System.
Campbell’s personnel file revealed that during his employment, disciplinary charges were filed against him about a dozen times alleging misconduct such as insubordination, taking unauthorized leave, reporting late for duty, using ethnic slurs, and failing to appear for hearings.
Claiming he was suffering from stress and emotional problems, Campbell requested and was granted multiple medical leaves. He was admitted to the Hillside Hospital’s psychiatric division and his private psychotherapist diagnosed him as having an Impulsive Behavior Personality Disorder.
Ultimately NYCTA filed an application on behalf of Campbell seeking his involuntary retirement due to mental incapacity. NYCTA cited Campbell’s psychotherapist’s diagnosis of Impulsive Behavior Personality Disorder and an NYCTA doctor’s evaluation that such disorder required a permanent restricted work assignment.
The decision sets out the due process procedures to be followed once an employer files an application for involuntary retirement on behalf of an employee as follows:
1. The employee is entitled to all departmental files that will be considered by the Medical Board in reviewing his case.
2. The employee may supplement these records with written argument or additional medical or other evidence if he or she so desires.
3. The employee is to be interviewed by the Medical Board privately and the Board may refer the individual to a psychiatrist, psychologist or other medical specialists for evaluation.
4. The Medical Board is to prepare a written report that explains findings and the reasons supporting such findings. If the Board finds the employee to be mentally incapacitated for the performance of duty and ought to be retired, the Board will recommend his or her involuntary retirement.
5. If the Medical Board recommends approval of the retirement application by the head of the agency, the member, his counsel or his union representative may appear before the Retirement System’s Board of Trustees and present arguments on the propriety of the Medical Board’s recommendation.
6. The Board of Trustees is to independently consider the Medical Board’s recommendation and uphold this recommendation if it concurs with the Medical Board’s findings or it may remand the case to the Medical Board if it finds procedural irregularities, if new evidence supports reconsideration, or if the recommendation is not supported by competent evidence.
7. If the Board of Trustees votes for involuntary retirement, the member may seek review in an Article 78 proceeding pursuant to New York’s Civil Practice Law and Rules.
8. If the individual is involuntarily retired, he or she may seek reinstatement one year following his retirement through procedures similar to those described in Steps 1-7 above.
In Campbell’s case, the Medical Board considered NYCTA’s involuntary retirement application, and the evidence he submitted his efforts to resist this action a number of times, as did the Board of Trustees, including his request that he be given more time on restricted duty prior to being involuntarily retired.
Following these reviews Campbell was involuntarily retired. He was advised that he could apply for reinstatement each year after his retirement to demonstrate that he was now capable of full duty. Campbell attempted to be reinstated but was unable to persuade the Board that he was qualified to be returned to duty.
Claiming that he had not been afforded due process of law in both the proceedings relating to his involuntary retirement and his subsequent request for reinstatement, Campbell sued.
The district court began its review by noting that:
1. To demonstrate a violation of Section 1983, a plaintiff must show that a person or entity, acting under color of state law, deprived him of the rights, privileges, or immunities guaranteed by the Constitution or laws of the United States;
2. The Fourteenth Amendment means that a local or state government employer may not involuntarily retire a public employee from his or her work without due process of law, citing Board of Regents v Roth, 408 U.S. 564 and Cleveland Board of Education v Loudermill, 470 U.S. 532; and
3. Due process requires notice and an opportunity to be heard, citing Matthews v Eldridge, 424 U.S. 319.
The elements that must be weighed determining if the individual was provided due process are:
(1) the importance of the individual’s interest affected by the official action;
(2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value of additional or alternative procedural safeguards; and
(3) the government’s interest in fiscal and administrative efficiency, and the burden additional or alternative procedures would entail.
Dismissing Campbell petition, the court said that “[g]iven the extensive nature of [the System’s] proceedings Campbell was not deprived of an adequate opportunity to be heard prior to his retirement.”
Another issue: was Campbell entitled to an adversarial hearing and the assistance of counsel during all Medical Board proceedings. No, said the court, noting that the Supreme Court has specifically rejected requiring an adversarial hearing with representation by counsel when making psychiatric medical determinations, even if they ultimately result in involuntary commitment , citing Washington v Harper, 494 US 210.
Campbell v City of New York, USDC, SDNY
Jonathan Campbell, claiming that the City of New York deprived him of liberty and property without due process of law in violation of his Fourteenth Amendment rights and his civil rights under 42 USC 1983 when it found him mentally incapacitated and involuntarily retiring him from his position as a New York City Transit Authority [NYCTA] police officer, sued the City and the New York City Employees’ Retirement System.
Campbell’s personnel file revealed that during his employment, disciplinary charges were filed against him about a dozen times alleging misconduct such as insubordination, taking unauthorized leave, reporting late for duty, using ethnic slurs, and failing to appear for hearings.
Claiming he was suffering from stress and emotional problems, Campbell requested and was granted multiple medical leaves. He was admitted to the Hillside Hospital’s psychiatric division and his private psychotherapist diagnosed him as having an Impulsive Behavior Personality Disorder.
Ultimately NYCTA filed an application on behalf of Campbell seeking his involuntary retirement due to mental incapacity. NYCTA cited Campbell’s psychotherapist’s diagnosis of Impulsive Behavior Personality Disorder and an NYCTA doctor’s evaluation that such disorder required a permanent restricted work assignment.
The decision sets out the due process procedures to be followed once an employer files an application for involuntary retirement on behalf of an employee as follows:
1. The employee is entitled to all departmental files that will be considered by the Medical Board in reviewing his case.
2. The employee may supplement these records with written argument or additional medical or other evidence if he or she so desires.
3. The employee is to be interviewed by the Medical Board privately and the Board may refer the individual to a psychiatrist, psychologist or other medical specialists for evaluation.
4. The Medical Board is to prepare a written report that explains findings and the reasons supporting such findings. If the Board finds the employee to be mentally incapacitated for the performance of duty and ought to be retired, the Board will recommend his or her involuntary retirement.
5. If the Medical Board recommends approval of the retirement application by the head of the agency, the member, his counsel or his union representative may appear before the Retirement System’s Board of Trustees and present arguments on the propriety of the Medical Board’s recommendation.
6. The Board of Trustees is to independently consider the Medical Board’s recommendation and uphold this recommendation if it concurs with the Medical Board’s findings or it may remand the case to the Medical Board if it finds procedural irregularities, if new evidence supports reconsideration, or if the recommendation is not supported by competent evidence.
7. If the Board of Trustees votes for involuntary retirement, the member may seek review in an Article 78 proceeding pursuant to New York’s Civil Practice Law and Rules.
8. If the individual is involuntarily retired, he or she may seek reinstatement one year following his retirement through procedures similar to those described in Steps 1-7 above.
In Campbell’s case, the Medical Board considered NYCTA’s involuntary retirement application, and the evidence he submitted his efforts to resist this action a number of times, as did the Board of Trustees, including his request that he be given more time on restricted duty prior to being involuntarily retired.
Following these reviews Campbell was involuntarily retired. He was advised that he could apply for reinstatement each year after his retirement to demonstrate that he was now capable of full duty. Campbell attempted to be reinstated but was unable to persuade the Board that he was qualified to be returned to duty.
Claiming that he had not been afforded due process of law in both the proceedings relating to his involuntary retirement and his subsequent request for reinstatement, Campbell sued.
The district court began its review by noting that:
1. To demonstrate a violation of Section 1983, a plaintiff must show that a person or entity, acting under color of state law, deprived him of the rights, privileges, or immunities guaranteed by the Constitution or laws of the United States;
2. The Fourteenth Amendment means that a local or state government employer may not involuntarily retire a public employee from his or her work without due process of law, citing Board of Regents v Roth, 408 U.S. 564 and Cleveland Board of Education v Loudermill, 470 U.S. 532; and
3. Due process requires notice and an opportunity to be heard, citing Matthews v Eldridge, 424 U.S. 319.
The elements that must be weighed determining if the individual was provided due process are:
(1) the importance of the individual’s interest affected by the official action;
(2) the risk of an erroneous deprivation of this interest through the procedures used and the probable value of additional or alternative procedural safeguards; and
(3) the government’s interest in fiscal and administrative efficiency, and the burden additional or alternative procedures would entail.
Dismissing Campbell petition, the court said that “[g]iven the extensive nature of [the System’s] proceedings Campbell was not deprived of an adequate opportunity to be heard prior to his retirement.”
Another issue: was Campbell entitled to an adversarial hearing and the assistance of counsel during all Medical Board proceedings. No, said the court, noting that the Supreme Court has specifically rejected requiring an adversarial hearing with representation by counsel when making psychiatric medical determinations, even if they ultimately result in involuntary commitment , citing Washington v Harper, 494 US 210.
Reassignment of personnel
Reassignment of personnel
Appeal of Scott Rabler, Commissioner’s Decision No. 15,539
Scott Rabler appealed his transfer* from his position as a High School Principal to an untitled position “as a principal performing various administrative duties.” The Commissioner dismissed his appeal, commenting that school administrators may be transferred within their tenure areas without their consent, In contrast, the Commissioner noted that such personnel may not be transferred outside their tenure areas involuntarily.
According to the decision, Rabler claimed that the school board had established “High School Principal” as a separate tenure area and that he was improperly transferred to another tenure area without his consent. The Commissioner found nothing in the record to substantiate Rabler’s claim. Further, said the Commissioner, Rabler did not establish that “his new duties constitute work in a separate tenure area.” In view of this, Rabler’s representation that he was reassigned outside his tenure area was not persuasive.
Noting that in an appeal to the Commissioner, the appellant has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief, the Commissioner held that Rabler failed to meet these burdens and dismissed his appeal.
In addition, in response to Rabler’s argument that the school superintendent “exceeded his authority in making the transfer without the approval of [the] respondent board,” the Commissioner said that Education Law §§1711 and 2508 authorize a superintendent to transfer personnel from school to school.
The Commissioner also found that the board had given the superintendent “clear and broad” authority to make such personnel changes. This authority, said the Commissioner was set out in the superintendent’s contract with the board by its including provisions granting the superintendent the authority to “organize and reorganize the administrative and supervisory staff, including instructional and non-instructional personnel, in a manner which, in the Superintendent’s judgment, best serves the District.”
In contrast, reassignment of a tenured individual may not be made for disciplinary reasons without complying with the provisions of §3020-a of the Education Law. Here, however, the Commissioner concluded that Rabler’s reassignment had not been made to punish him for alleged misconduct.
The only evidence Rabler presented in support of his claim that his reassignment was disciplinary in nature was an article from the local newspaper asserting that an unnamed sources told the reporter that Rabler was transferred as a result of his misconduct. The Commissioner commented that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein.”
The Commissioner then said that “on the record before me, I am constrained to dismiss the appeal.”
* Although the decision occasionally uses the term "transfers" to describe the personnel change involved here, Rabler’s change was, in fact a "reassignment." Transfers typically involve moving an individual under the jurisdiction of one appointing authority to the jurisdiction of a different appointing authority and usually requires the approval of the individual involved. In contrast, a reassignment is the placement of an individual under the jurisdiction of one appointing authority to another position under the jurisdiction of the same appointing authority-- and the approval of the individual is not required unless a collective bargaining agreement provides otherwise.
For the full text of the decision, go to: http://nypublicpersonnellawarchives.blogspot.com/2007/03/reassignment-of-staff.html
Appeal of Scott Rabler, Commissioner’s Decision No. 15,539
Scott Rabler appealed his transfer* from his position as a High School Principal to an untitled position “as a principal performing various administrative duties.” The Commissioner dismissed his appeal, commenting that school administrators may be transferred within their tenure areas without their consent, In contrast, the Commissioner noted that such personnel may not be transferred outside their tenure areas involuntarily.
According to the decision, Rabler claimed that the school board had established “High School Principal” as a separate tenure area and that he was improperly transferred to another tenure area without his consent. The Commissioner found nothing in the record to substantiate Rabler’s claim. Further, said the Commissioner, Rabler did not establish that “his new duties constitute work in a separate tenure area.” In view of this, Rabler’s representation that he was reassigned outside his tenure area was not persuasive.
Noting that in an appeal to the Commissioner, the appellant has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief, the Commissioner held that Rabler failed to meet these burdens and dismissed his appeal.
In addition, in response to Rabler’s argument that the school superintendent “exceeded his authority in making the transfer without the approval of [the] respondent board,” the Commissioner said that Education Law §§1711 and 2508 authorize a superintendent to transfer personnel from school to school.
The Commissioner also found that the board had given the superintendent “clear and broad” authority to make such personnel changes. This authority, said the Commissioner was set out in the superintendent’s contract with the board by its including provisions granting the superintendent the authority to “organize and reorganize the administrative and supervisory staff, including instructional and non-instructional personnel, in a manner which, in the Superintendent’s judgment, best serves the District.”
In contrast, reassignment of a tenured individual may not be made for disciplinary reasons without complying with the provisions of §3020-a of the Education Law. Here, however, the Commissioner concluded that Rabler’s reassignment had not been made to punish him for alleged misconduct.
The only evidence Rabler presented in support of his claim that his reassignment was disciplinary in nature was an article from the local newspaper asserting that an unnamed sources told the reporter that Rabler was transferred as a result of his misconduct. The Commissioner commented that “It is well settled that newspaper articles do not constitute evidence of the truth of the statements contained therein.”
The Commissioner then said that “on the record before me, I am constrained to dismiss the appeal.”
* Although the decision occasionally uses the term "transfers" to describe the personnel change involved here, Rabler’s change was, in fact a "reassignment." Transfers typically involve moving an individual under the jurisdiction of one appointing authority to the jurisdiction of a different appointing authority and usually requires the approval of the individual involved. In contrast, a reassignment is the placement of an individual under the jurisdiction of one appointing authority to another position under the jurisdiction of the same appointing authority-- and the approval of the individual is not required unless a collective bargaining agreement provides otherwise.
For the full text of the decision, go to: http://nypublicpersonnellawarchives.blogspot.com/2007/03/reassignment-of-staff.html
Criminal conviction and disqualification for public employment
Criminal conviction and disqualification for public employmentRodgers v NYC Human Resources Administration, 546 NYS2d 581
The Rogers case involved the termination of a public employee because he allegedly made false statements on his application for public employment. The decision indicates the potential interrelationship of portions of the Civil Service Law, the Human Rights Law and the Corrections Law.
Rodgers had been appointed as a caseworker in 1985. Two years later he was discharged of the grounds that he did not "admit his conviction record on his employment application."* According to the ruling, Rodgers allegedly made a false statement on his application for employment when he stated that his did not have any criminal record. This alleged false statement was claimed to be the "sole basis of [Rodgers'] termination." Rodgers sued, claiming that his termination was arbitrary, and that his discharge was in violation of Section 296 of the Human Rights Law.
Rodgers had been convicted of two misdemeanors. However, he said that he had provided his employer with actual notice of the existence of his history of conviction of these misdemeanors when he submitted a copy of his Certificate of Relief from Civil
Disabilities together with "the dispositions of his criminal cases along with his application." Although the courts of this State have generally upheld the termination of an employee upon a finding that he or she falsified a material fact in his or her application form, here the Appellate Division, 2nd Department, decided that some fact-finding was required. It remanded the matter to the Supreme Court for a hearing. The opinion indicates that the Court believed that Rodgers "should be enabled to continue to be a valuable member of society, rather than be relegated to a life of crime due to this baseless allegation that he was anything less than forthcoming about his past."
The Appellate Division appeared troubled by the summary dismissal of Rodgers' case by the lower court in this instance. The opinion includes a number of footnotes, including one indicating that "it is beyond dispute that [the City] had actual notice of the subject convictions and permitted [Rodgers] to retain his position after questioning;" and a second stating that the file of investigator originally involved in the case, whom Rodgers claimed told him that "there would be no further problems with his application" despite the inconsistency regarding his criminal record, "had been misplaced."
As to the protections contained in the State's Human Rights Law in cases involving an individual's "criminal history," except with respect to applicants for employment as a police officer or peace officer, Section 296.16 of the Executive Law makes it an unlawful discriminatory practice to inquire about an applicant's "criminal history" except with respect to matters then pending or where the individual was convicted.
Additional protections against discrimination based on a criminal conviction are contained in Section 752 of the Corrections Law. Section 752 prohibits "unfair discrimination" against persons previously convicted of one or more criminal offenses. The individual may not be refused employment unless "there is a direct relationship between one or more of the previous criminal offenses and the ... employment sought; or ... granting employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."
Another aspect of this case relates to the issuance of a Certificate of Relief from Civil Disabilities [see Section 702, Correction Law]. Rodgers had obtained such a Certificate from a State court judge The granting of such a Certificate by a court removes any bar to employment automatically imposed by law because of conviction of a crime. One exception, however is that such a Certificate does not excuse the impact of the conviction with respect to such an individual's right to retain, or be eligible for, public office. This exception with respect to public office may be important in certain employment situations. Although all public officers are public employees, not all public employees are public officers.**
Other methods available to a person convicted of a crime by which he or she may seek to obtain relief from certain disabilities imposed by law as a result of such conviction is the granting of a Certificate of Good Conduct by the State Board of Parole [Section 703-a, Correction Law] or the granting of an Executive Pardon by the Governor [Article 4, Section 4, State Constitution].
In the Rodgers case, the Appellate Division said that the action taken against Rodgers by the City "seems contrary to the intent of both the legislature which enacted the statutory relief for the furtherance of public interest [Correction Law Section 702(2)(c)] and the courts which saw fit to grant [Rodgers] a second chance at life." This suggests that in a Section 50.4 disqualification proceeding the courts expect the State Department of Civil Service and local commissions and personnel officers to give due weight to the fact that an applicant or an employee may offer a Certificate of Relief from Civil
Disabilities or a Certificate of Good Conduct or an Executive Pardon in opposing his or her proposed disqualification for certification or employment.
* Although the statutory authority for the termination is not specified in the decision, it is assumed that Rodgers was disqualified pursuant to Section 50.4 of the Civil Service Law. Section 50.4 permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." Except in cases of fraud, there is a three-year statute of limitation on disqualifications pursuant to Section 50.4.
** The Board of Parole is also authorized to issue such Certificates. See Section 703, Correction Law, for the scope and effect of the issuance of such a Certificate by the Board of Parole.
The Rogers case involved the termination of a public employee because he allegedly made false statements on his application for public employment. The decision indicates the potential interrelationship of portions of the Civil Service Law, the Human Rights Law and the Corrections Law.
Rodgers had been appointed as a caseworker in 1985. Two years later he was discharged of the grounds that he did not "admit his conviction record on his employment application."* According to the ruling, Rodgers allegedly made a false statement on his application for employment when he stated that his did not have any criminal record. This alleged false statement was claimed to be the "sole basis of [Rodgers'] termination." Rodgers sued, claiming that his termination was arbitrary, and that his discharge was in violation of Section 296 of the Human Rights Law.
Rodgers had been convicted of two misdemeanors. However, he said that he had provided his employer with actual notice of the existence of his history of conviction of these misdemeanors when he submitted a copy of his Certificate of Relief from Civil
Disabilities together with "the dispositions of his criminal cases along with his application." Although the courts of this State have generally upheld the termination of an employee upon a finding that he or she falsified a material fact in his or her application form, here the Appellate Division, 2nd Department, decided that some fact-finding was required. It remanded the matter to the Supreme Court for a hearing. The opinion indicates that the Court believed that Rodgers "should be enabled to continue to be a valuable member of society, rather than be relegated to a life of crime due to this baseless allegation that he was anything less than forthcoming about his past."
The Appellate Division appeared troubled by the summary dismissal of Rodgers' case by the lower court in this instance. The opinion includes a number of footnotes, including one indicating that "it is beyond dispute that [the City] had actual notice of the subject convictions and permitted [Rodgers] to retain his position after questioning;" and a second stating that the file of investigator originally involved in the case, whom Rodgers claimed told him that "there would be no further problems with his application" despite the inconsistency regarding his criminal record, "had been misplaced."
As to the protections contained in the State's Human Rights Law in cases involving an individual's "criminal history," except with respect to applicants for employment as a police officer or peace officer, Section 296.16 of the Executive Law makes it an unlawful discriminatory practice to inquire about an applicant's "criminal history" except with respect to matters then pending or where the individual was convicted.
Additional protections against discrimination based on a criminal conviction are contained in Section 752 of the Corrections Law. Section 752 prohibits "unfair discrimination" against persons previously convicted of one or more criminal offenses. The individual may not be refused employment unless "there is a direct relationship between one or more of the previous criminal offenses and the ... employment sought; or ... granting employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."
Another aspect of this case relates to the issuance of a Certificate of Relief from Civil Disabilities [see Section 702, Correction Law]. Rodgers had obtained such a Certificate from a State court judge The granting of such a Certificate by a court removes any bar to employment automatically imposed by law because of conviction of a crime. One exception, however is that such a Certificate does not excuse the impact of the conviction with respect to such an individual's right to retain, or be eligible for, public office. This exception with respect to public office may be important in certain employment situations. Although all public officers are public employees, not all public employees are public officers.**
Other methods available to a person convicted of a crime by which he or she may seek to obtain relief from certain disabilities imposed by law as a result of such conviction is the granting of a Certificate of Good Conduct by the State Board of Parole [Section 703-a, Correction Law] or the granting of an Executive Pardon by the Governor [Article 4, Section 4, State Constitution].
In the Rodgers case, the Appellate Division said that the action taken against Rodgers by the City "seems contrary to the intent of both the legislature which enacted the statutory relief for the furtherance of public interest [Correction Law Section 702(2)(c)] and the courts which saw fit to grant [Rodgers] a second chance at life." This suggests that in a Section 50.4 disqualification proceeding the courts expect the State Department of Civil Service and local commissions and personnel officers to give due weight to the fact that an applicant or an employee may offer a Certificate of Relief from Civil
Disabilities or a Certificate of Good Conduct or an Executive Pardon in opposing his or her proposed disqualification for certification or employment.
* Although the statutory authority for the termination is not specified in the decision, it is assumed that Rodgers was disqualified pursuant to Section 50.4 of the Civil Service Law. Section 50.4 permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." Except in cases of fraud, there is a three-year statute of limitation on disqualifications pursuant to Section 50.4.
** The Board of Parole is also authorized to issue such Certificates. See Section 703, Correction Law, for the scope and effect of the issuance of such a Certificate by the Board of Parole.
January 14, 2011
Not all “serious medical conditions” are protected by a constitutional right to privacy
Not all “serious medical conditions” are protected by a constitutional right to privacy
Matson v. Board of Education of the School District of City of New York USCA, 2nd Circuit, 09-3773-cv
Dorrit Matson appealed a judgment by a United States District Court for the Southern District of New York judge dismissing her civil rights action brought under 42 U.S.C. §1983. Matson alleged that the School District had violated her right to privacy by publicly disclosing that she suffers from fibromyalgia.*
The District Court held that Matson did not have a constitutionally-protected privacy right with respect to her medical condition. The Circuit Court of Appeals agreed with the lower court’s ruling.
Although Matson contended that fibromyalgia is a “serious medical condition” that falls within the ambit of constitutionally-protected privacy, the Circuit Court, conceding that it was a serious medical condition, explained that “A general medical determination or acknowledgment that a disease is serious does not give rise ipso facto to a constitutionally-protected privacy right.”
The court distinguished fibromyalgia from other diseases that courts have recognized as having a constitutionally-protected privacy right such as the medical condition of individuals with HIV [see Doe v. City of New York, 15 F.3d 264,] or a “profound psychiatric disorder” [see Powell v. Schriver, 175 F.3d 107].
The Circuit Court commented that case law indicates that “the interest in the privacy of medical information will vary with the condition” and that a constitutional right to privacy for some diseases is greater than for others….”
Also noted was that in considering claims that a constitutional right of privacy attaches to various serious medical conditions, the Second Circuit considers the claim “on a case-by-case basis” and in so doing, the Circuit examines “all the relevant factors that cut both in favor of and against extending privacy protection to such medical conditions.”
NYPPL Comments: The Circuit Court of Appeals' decision notes that a constitutional right to medical privacy may be characterized as a right to “confidentiality,” which “includes the right to protection regarding information about the state of one’s health,” citing Doe, 15 F.3d at 267.
The court then continues: “We reasoned that this is 'especially true with regard to those infected with HIV or living with AIDS, considering the unfortunately unfeeling attitude among many in this society toward those coping with the disease'… In particular, we considered that '[a]n individual revealing that she is HIV seropositive potentially exposes herself [or himself] not to understanding or compassion but to discrimination and intolerance.'”
Assuming, but not conceding, that there is a “constitutionally protected right to privacy” with respect on one’s medical condition, it would seem that such a right would obtain be the condition a hangnail, a heart defect or being seropositive for HIV and that the attitude of society toward those coping with such a medical condition is irrelevant. In other words, the protection obtains regardless of the nature of the medical problem or society’s reaction to those suffering the condition.
* The National Institute of Arthritis and Musculoskeletal and Skin Diseases of the National Institutes of Health, United States Department of Health and Human Services, defines fibromyalgia as “a disorder that causes muscle pain and fatigue.”
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/5c3f080d-679f-4048-903d-6d61e6b64b54/1/doc/09-3773_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c3f080d-679f-4048-903d-6d61e6b64b54/1/hilite/
.
Matson v. Board of Education of the School District of City of New York USCA, 2nd Circuit, 09-3773-cv
Dorrit Matson appealed a judgment by a United States District Court for the Southern District of New York judge dismissing her civil rights action brought under 42 U.S.C. §1983. Matson alleged that the School District had violated her right to privacy by publicly disclosing that she suffers from fibromyalgia.*
The District Court held that Matson did not have a constitutionally-protected privacy right with respect to her medical condition. The Circuit Court of Appeals agreed with the lower court’s ruling.
Although Matson contended that fibromyalgia is a “serious medical condition” that falls within the ambit of constitutionally-protected privacy, the Circuit Court, conceding that it was a serious medical condition, explained that “A general medical determination or acknowledgment that a disease is serious does not give rise ipso facto to a constitutionally-protected privacy right.”
The court distinguished fibromyalgia from other diseases that courts have recognized as having a constitutionally-protected privacy right such as the medical condition of individuals with HIV [see Doe v. City of New York, 15 F.3d 264,] or a “profound psychiatric disorder” [see Powell v. Schriver, 175 F.3d 107].
The Circuit Court commented that case law indicates that “the interest in the privacy of medical information will vary with the condition” and that a constitutional right to privacy for some diseases is greater than for others….”
Also noted was that in considering claims that a constitutional right of privacy attaches to various serious medical conditions, the Second Circuit considers the claim “on a case-by-case basis” and in so doing, the Circuit examines “all the relevant factors that cut both in favor of and against extending privacy protection to such medical conditions.”
NYPPL Comments: The Circuit Court of Appeals' decision notes that a constitutional right to medical privacy may be characterized as a right to “confidentiality,” which “includes the right to protection regarding information about the state of one’s health,” citing Doe, 15 F.3d at 267.
The court then continues: “We reasoned that this is 'especially true with regard to those infected with HIV or living with AIDS, considering the unfortunately unfeeling attitude among many in this society toward those coping with the disease'… In particular, we considered that '[a]n individual revealing that she is HIV seropositive potentially exposes herself [or himself] not to understanding or compassion but to discrimination and intolerance.'”
Assuming, but not conceding, that there is a “constitutionally protected right to privacy” with respect on one’s medical condition, it would seem that such a right would obtain be the condition a hangnail, a heart defect or being seropositive for HIV and that the attitude of society toward those coping with such a medical condition is irrelevant. In other words, the protection obtains regardless of the nature of the medical problem or society’s reaction to those suffering the condition.
* The National Institute of Arthritis and Musculoskeletal and Skin Diseases of the National Institutes of Health, United States Department of Health and Human Services, defines fibromyalgia as “a disorder that causes muscle pain and fatigue.”
The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/5c3f080d-679f-4048-903d-6d61e6b64b54/1/doc/09-3773_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5c3f080d-679f-4048-903d-6d61e6b64b54/1/hilite/
.
Discharge of older worker, but not younger worker with whom he fought, upheld; discharge due to history of altercations, not age bias
Discharge of older worker, but not younger worker with whom he fought, upheld; discharge due to history of altercations, not age bias
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
The 7th Circuit recently held that the lower court properly granted judgment as a matter of law on the age discrimination claim of a plant employee who was fired after several heated disputes with his coworkers.Runyon v Applied Extrusion Techs, Inc, ____F.3d____(7th Cir. August 30, 2010).
Although a younger coworker who was involved in an altercation with the employee was not fired, the Seventh agreed with the district court that there was no evidence the employer’s action was motivated by age.
Mitchell H. Rubinstein
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/
Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.
The 7th Circuit recently held that the lower court properly granted judgment as a matter of law on the age discrimination claim of a plant employee who was fired after several heated disputes with his coworkers.Runyon v Applied Extrusion Techs, Inc, ____F.3d____(7th Cir. August 30, 2010).
Although a younger coworker who was involved in an altercation with the employee was not fired, the Seventh agreed with the district court that there was no evidence the employer’s action was motivated by age.
Mitchell H. Rubinstein
Name clearing hearings
Name clearing hearings
Ortiz v Ward, 546 NY2d 624
The Appellate Division, 1st Department, was asked to consider the issue of the right of a probationer discharged after the employer determines that he or she has not satisfactorily completed his or her probationary period to either (1) a "pre-termination hearing" before being discharged or (2) a “name-clearing hearing" following his or her termination.
As to the right to a "pre-termination hearing," the Court said that a probationary employee could be discharged without a hearing so long as the termination was made in good faith. However, it appears that the employer may be called upon to demonstrate that the dismissal was made in good faith by providing some evidence to support its decision to terminate the probationer.
In this case the Appellate Division said that "the evidence in this record supports the conclusion that [Ortiz] was discharged for good reason and, accordingly, no hearing was necessary before terminating [Ortiz'] employment."
Although it is frequently said that a probationer may be terminated from his or her employment at any time after completing the minimum probationary period and before the end of the maximum period of probation without any reason being required to be given for the discharge, if the termination is challenged the employer will probably have to disclose the underlying reason or reasons for the firing. Further, these judgments by the employer will have satisfy the court with respect to their being reasonable and made in good faith.
If, on the other hand, the employer wishes to terminate the probationer before he or she has completed the minimum probationary period required for the position, it may do so only after bringing disciplinary action against the employee and holding a disciplinary hearing or proceeding with a Taylor Law disciplinary arbitration.
In considering the need for a "name-clearing hearing," the Appellate Division noted that Ortiz was not entitled to such a hearing as he did not show that his employer had publicly disclosed the stigmatizing reasons for his discharge. Courts in the past have ruled that the internal disclosure of stigmatizing reasons for the discharge of a probationer to agency administrators did not constitute a public disclosure of such information and thus a name-clearing hearing" was not required because of such intra-agency communications.
Ortiz v Ward, 546 NY2d 624
The Appellate Division, 1st Department, was asked to consider the issue of the right of a probationer discharged after the employer determines that he or she has not satisfactorily completed his or her probationary period to either (1) a "pre-termination hearing" before being discharged or (2) a “name-clearing hearing" following his or her termination.
As to the right to a "pre-termination hearing," the Court said that a probationary employee could be discharged without a hearing so long as the termination was made in good faith. However, it appears that the employer may be called upon to demonstrate that the dismissal was made in good faith by providing some evidence to support its decision to terminate the probationer.
In this case the Appellate Division said that "the evidence in this record supports the conclusion that [Ortiz] was discharged for good reason and, accordingly, no hearing was necessary before terminating [Ortiz'] employment."
Although it is frequently said that a probationer may be terminated from his or her employment at any time after completing the minimum probationary period and before the end of the maximum period of probation without any reason being required to be given for the discharge, if the termination is challenged the employer will probably have to disclose the underlying reason or reasons for the firing. Further, these judgments by the employer will have satisfy the court with respect to their being reasonable and made in good faith.
If, on the other hand, the employer wishes to terminate the probationer before he or she has completed the minimum probationary period required for the position, it may do so only after bringing disciplinary action against the employee and holding a disciplinary hearing or proceeding with a Taylor Law disciplinary arbitration.
In considering the need for a "name-clearing hearing," the Appellate Division noted that Ortiz was not entitled to such a hearing as he did not show that his employer had publicly disclosed the stigmatizing reasons for his discharge. Courts in the past have ruled that the internal disclosure of stigmatizing reasons for the discharge of a probationer to agency administrators did not constitute a public disclosure of such information and thus a name-clearing hearing" was not required because of such intra-agency communications.
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New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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