ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

April 06, 2011

The date of the certification of the candidate for appointment rather than the date a candidate's name is reachable for appointment controls

The date of the certification of the candidate for appointment rather than the date a candidate's name is reachable for appointment controls
Matter of Woods v New York City Dept. of Citywide Admin. Servs., 2011 NY Slip Op 02719, Court of Appeals

Among the qualifications for appointment as New York City firefighter was that the candidate, by the date of appointment, have “successfully completed 30 semester credits from an accredited college or university or obtained a four-year high school diploma and completed two years of honorable full-time U.S. military service.”

Robert Thomas Woods passed a civil service examination and his name was placed on a list of eligibles to be appointed as a New York City firefighter.

Woods did not meet these requirements at the time he sat for the examination nor did he meet them at the time his name was initially reached for appointment as a firefighter. However, Woods was on active military duty when his name was initially reached on the list.

When Wood was discharged from military service he filed an "Application Under State Military Law for Determination of Rights on Eligible List" with the New York City Department of City-wide Administrative Services [DCAS] for “a determination of his rights under Military Law §243.” §243, in pertinent part, provides that any person whose name is on an eligible list and comes up for certification while on duty, shall have his or her name placed on a special eligible list if a request is made within 90 days of his or discharge from active duty.

DCAS decided that Woods’ name could not be placed on a special eligible list because on the date when his name initially had been reached for appointment from the list, he was not qualified for appointment on that date.

The Court of Appeals disagreed, holding that Military Law §243(7) required DCAS to place petitioner on a "special eligible list", from which he could be certified for appointment after his military duty ended. The court explained that so long as Woods met the qualifications for appointment when the time to certify him for appointment arrived, it did not matter that he did not satisfy them when his name was first reached for certification for appointment from the list, at which time he was on military duty.

DCAS, said the court, “misconceived the statutory scheme,” pointing out that §243(7), by using the word "shall" rather than "may" gives DCAS no discretion to refuse to put names on a special eligible list.

Although Civil Service Law §50.4 allows DCAS to exercise its discretion not to certify names of people who do not meet the required qualifications, that discretion, said the Court of Appeals, may be exercisable at the time when the decision about such certification is made — here when Woods’ name “was or should have been reached on the special list” and certified for appointment.

Accordingly, said the court, Supreme Court and the Appellate Division determinations that Woods’ name should not be placed on a special military eligible list were incorrect and must be vacated.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02719.htm
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If substantial evidence supports the appointing authority’s denial of GML §207-a benefits, it must be sustained

If substantial evidence supports the appointing authority’s denial of GML §207-a benefits, it must be sustained
Matter of Ridge Rd. Fire Dist. v Schiano, 2011 NY Slip Op 02720, Court of Appeals

Kevin Nowack, a firefighter employed by the Ridge Road Fire District, claimed to have sustained a back injury while on duty.

Ultimately the arbitrator concluded that the District's denial of Nowack's §207-a benefits was not supported by substantial evidence.

The District appealed the arbitrator's determination and Supreme Court granted the District's petition, vacated the arbitrator’s decision and reinstated the District's original decision denying Nowack application for §207-a benefits.

Supreme Court held that the hearing officer's decision was arbitrary and capricious, and noted that the District's determination denying benefits "was supported by substantial evidence in the record as a whole despite the fact that there was conflicting medical evidence to support a contrary result."

The Appellate Division reversed the Supreme Court’s determination and dismissed the Fire District’s petition, holding that the District's "denial of benefits, which was based on the determination that the disability was solely related to a prior non-work-related injury, [was] not supported by substantial evidence."

The Court of Appeals reversed the Appellate Division’s decision.

The court said that the parties here agree that under the relevant statute and collective bargaining agreement, the District's denial of benefits had to be upheld if substantial evidence* supported it. Accordingly, said the Court of Appeals, “the independent hearing officer was required to give deference to the District's decision and Nowack bore the burden of establishing that the District's denial determination had not been supported by substantial evidence.”

Viewing this record as a whole, the Court of Appeals held that “Supreme Court correctly held that the hearing officer's decision, i.e. that the District's denial of section 207-a benefits was not based on substantial evidence, was arbitrary and capricious.”

Further, said the court, “It is of no consequence that the record also indicates that there was evidence supporting Nowack's contention.” While frequently there is substantial evidence on both sides, the Court of Appeals explained that the applicable standard here was whether the District's denial of benefits was supported by substantial evidence.

In this instance, said the court, there is unquestionably substantial evidence supporting both sides' positions. Accordingly “the hearing officer acted arbitrarily in deciding that none supported the District's” position.

* Court of Appeals noted that it had defined "substantial evidence" as such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact, and "is less than a preponderance of the evidence, overwhelming evidence or evidence beyond a reasonable doubt."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02720.htm

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Concerning disciplinary probation

Concerning disciplinary probation
Gonzalez v Safir, App. Div., 270 AD2d 52
Dillon v Safir, App. Div., 270 AD2d 116

The Gonzalez case deals with the imposition of probation as a disciplinary penalty; the Dillon decision indicates the potential impact that a disciplinary probation may have on an individual.

The bottom line: an individual serving in disciplinary probationary status may be dismissed without notice or hearing if his or her service during the probationary period is found to be unsatisfactory.

The Gonzalez case

Eduardo A. Gonzalez, a New York City police officer, was found guilty of having wrongfully struck another person. The penalty imposed by the disciplinary hearing officer: disciplinary probation for one year and a 30-day suspension without pay.

The Appellate Division, First Department, confirmed the findings of the hearing officer and the penalty given to Gonzalez as a result of his having been found guilty of the charges filed against him. The court said that it found the penalty imposed was appropriate in light of Gonzalez’s’s violent behavior and poor judgment when he struck his girlfriend.

The Appellate Division also commented on Gonzalez’s evident lack of candor when he testified about the incident.

The Dillion Case

Bradly Dillion, another New York City police officer, was terminated from his employment as a probationary employee without notice or hearing. Dillion had been serving a one-year disciplinary probation imposed pursuant to an earlier disciplinary action at the time he was dismissed.

Dillon had been found guilty of charges alleging excessive use of force.

Dillion challenged his termination, contending that under Section 891 of the Unconsolidated Law, police officers can be terminated only for incompetence or misconduct shown after a hearing.

The Appellate Division rejected Dillion’s arguments for two reasons. The court said that:

1. In Williams v Safir, 696 NY2d 139, Dillion’s theory that Section 891 applies to probationary as well as tenured police officers was specifically rejected; and

2. Unless it is shown that the termination of an individual on disciplinary probation was made in bad faith, police officers on disciplinary probation, like those on ordinary probation, can be terminated for any or no reason.

The court said that evidence in the record of disciplinary problems other than that underlying the probation that would support the conclusion that [Dillion’s] termination was made in good faith.

However, there may be limitations to dismissing an individual serving a disciplinary probation without first providing the employee with a pre-termination notice and a hearing.

If the individual is placed on disciplinary probation subject to specific terms and conditions set out in the disciplinary settlement or award, he or she may not be summarily terminated as a probationer unless he or she violates the specific terms of the disciplinary probation.

This point is illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NY2d 929.

Under the terms of a disciplinary settlement, Taylor could be terminated without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. Taylor was subsequently terminated from his position for sleeping on the job.

Although the employer claimed that the termination without a hearing was permitted under the terms of the disciplinary settlement agreement, the Appellate Division disagreed and directed the agency to reinstate Taylor to his position with back pay and benefits.

The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not authorized by the settlement agreement. The court ruled that Taylor could only be terminated without a hearing if he was found to have violated the specific reason set out in the settlement agreement: the performance of his duties were unsatisfactory because of his consumption of alcohol.

The Dillion and Taylor decisions illustrate two basic formulas followed in imposing disciplinary probation as a penalty:

1. The Dillion formula: You should be terminated but you’re getting another chance: any kind of misperformance, malperformance or nonperformance and you will be dismissed!

2. The Taylor formula: You should be terminated based on specific misconduct, but you’re getting another chance: if you do it again, you will be dismissed!

In effect, an individual serving a Dillion formula disciplinary probationary period is treated as though he or she is serving a Civil Service Law Section 63 probationary period.

In contrast, an individual serving a Taylor formula disciplinary probation period continues to hold status as a tenured employee but he or she may be summarily terminated if he or she commits a specified type offense.
There are other potential impacts resulting from disciplinary probationary status to be considered as well. For example, assume there is a layoff. Sections 80 and 80-a of the Civil Service Law provide that probationary employees are to be laid off before less senior tenured employees.

An individual serving a Dillion type disciplinary probation presumably would be treated in the same manner as any other probationer with respect to suspension or demotion in a layoff situation. In contrast, the Taylor type disciplinary probationer presumably would retain all of his or her tenured seniority rights without regard to his or her disciplinary probation status.

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

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April 05, 2011

Certification of the payroll critical to lawfully paying an individual in the classified service

Certification of the payroll critical to lawfully paying an individual in the classified service
Eldridge v Carmel Cent. School Dist. Bd. of Educ., 2011 NY Slip Op 02620, Appellate Division, Second Department

The Personnel Officer of Putnam County, who also serves as the Personnel Director for the Putnam County Personnel Department, Paul Eldridge, sued the Carmel Central School District’s Board of Education and a number of employees of the District pursuant to Civil Service Law §102(2) to recover certain sums that were allegedly illegally paid by the School District to an individual in the classified service that had been employed by the District without the certification required by the Civil Service Law §100.*

Eldridge contended that the School District “illegally paid or authorized payment of salary or compensation to nonparty Joseph Gramando, totaling approximately $233,245” during the period February 10, 2006 through October 15, 2008, which payments Eldridge alleged were not properly certified as required by Civil Service Law §100(1)(a).

In response to a number of technical objections to the parties named as defendants in Eldridge’s petition, the Appellate Division, noting that the Board of Education was not an officer within the meaning of CSL §100(1)(a), said that Supreme Court should have dismissed Eldridge’s complaint with respect to the Board as an entity being named a defendant but that the complaint sufficiently alleged that School Board members “Kreps, Riley, Dougherty, MacDonald, Nesheiwat, Port, and Shilling,” as individual members of the Board of Education, were "officers by whom [nonparty Joseph Gramando] w[as] appointed in violation of the provisions of law and of the rules made in pursuance of law."

Further, said the court, Eldridge’s complaint sufficiently alleged that the officers of the District that he named in his petition, Terranova, Wilson, Stark, and Haywood, were "officer[s] signing or countersigning or authorizing the signing or countersigning of any warrant for the payment of" salary or compensation distributed to nonparty Joseph Gramando contrary to the provisions of Civil Service Law §100.

Among the defenses raised by the board members and district officers were the following:

1.      Eldridge failed to notify "the appropriate disbursing and auditing officers" that Gramando was being employed in violation of the law. 
 
The Appellate Division rejected the argument, holding that such notice that a person has been "promoted, transferred, assigned, reinstated or otherwise employed" in violation of the law is not a condition precedent to an action to recover sums illegally paid under Civil Service Law §102(2). Further, said the court, the “defendants failed to submit documentary evidence conclusively establishing that the salary and compensation allegedly paid to Gramando in violation of the law was properly certified by the civil service department or municipal commission having jurisdiction, as required by Civil Service Law § 100(1)(a).”

2.      Eldridge failed to serve a timely serve a notice of claim as required by Education Law § 3813(1). 
  
Citing Union Free School Dist. No. 6 of Towns of Islip & Smithtown v New York State Human Rights Appeal Bd., 35 NY2d 371, the Appellate Division rejected this defense as well, commenting that “Contrary to the defendants' contention, an action commenced pursuant to Civil Service Law §102(2) is an action ‘to vindicate a public interest’ to which the notice of claim requirement in Education Law §3813(1) does not apply.”
 

3.      The action brought was untimely as barred by the one-year statute of limitations in Education Law §3813(2-b). 
  
The court said that "All of the public policy considerations for finding that Education Law §3813's notice of claim requirement is inapplicable to [this action] are equally valid with respect to the Statute of Limitations set forth in [Section 3813(2-b)]" and since the action is to recover upon “a liability, penalty or forfeiture created or imposed by statute" a three-year statute of limitations is applicable. Accordingly, Eldridge’ action to recover sums allegedly illegally paid said the Appellate Division, ‘should be limited to the money paid to Gramando on or after June 2, 2006, citing General Construction Law §20.

In response to another argument advanced by the defendants, the court commented that Eldridge was not required, nor does he have the authority, to extend or terminate provisional appointments. It is the obligation of the appointing authority to terminate all provisional appointments "within two months following the establishment of an appropriate eligible list for filling vacancies" (Civil Service Law §65[3]).

The court explained that power of the civil service department and municipal commission lies in their ability to withhold certification "from an entire payroll or from any item or items therein." (Civil Service Law § 100[1][a]).

The Appellate Division said that the allegations in the complaint were sufficient to establish that the individual defendants “continued to pay and approve salary and compensation to Gramando after the expiration of his provisional appointment and without proper certification of the payroll


* Subdivision 1(a) of Civil Service Law §100, Certification of payrolls, in pertinent part, provides that certification of the payroll is required and that “no disbursing or auditing officer of the state or of any civil division thereof shall approve or pay or take any part in approving or paying any salary or compensation for personal service to any person holding an office or position in the classified service unless the voucher or payroll therefor bears the certificate of the civil service department or  municipal commission having jurisdiction that the persons named therein  are employed in their respective positions in accordance with law and  rules made pursuant to law. The certificate of municipal commissions shall also include a statement of membership in an appropriate retirement system where such membership is mandatory.”

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02620.htm
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Inability to obtain a timely waiver to reemploy a person receiving a retirement allowance from a public retirement system of this State does not result in a breach of contract

Inability to obtain a timely waiver to reemploy a person receiving a retirement allowance from a public retirement system of this State does not result in a breach of contract
LaSalle v Board of Educ. of Bridgehampton Union Free School Dist., 2011 NY Slip Op 02632, Appellate Division, Second Department

Edward J. LaSalle, a retired schoolteacher, applied for a teaching position with the Bridgehampton Union Free School District. In order for LaSalle to be so reemployed without having his retirement allowance adjusted, the district applied for a “§211 waiver” pursuant to §211.2(a) of the Retirement and Social Security Law.*

In essence, if the school district’s application for a §211 waiver for LaSalle was not approved, LaSalle’s earnings could not exceed the statutory annual earnings limitation of $27,500, which was the sum then applicable to him.** [The maximum currently permitted without loss of retirement benefits set out in RSSL §212 absent a waiver is $30,000. However, there is no earning limitations in or after the calendar year in which the retired individual attains age 65.]

LaSalle signed a salary notification for the school year containing a notation that the salary was "pending NYS waiver for Retiree." In addition, a resolution of the board of education appointing LaSalle as a teacher recited that the hiring was "effective" September 5, 2006. The resolution did not contain termination date for the period of employment but it did state that confirmation of his appointment was "pending NYS Education Department waiver for employment of retiree." The school superintendent also wrote to LaSalle to the same effect.

The school district’s waiver application, which it had submitted in June 2006, was denied.

The district then resubmitted a second waiver application and LaSalle commenced teaching on September 5, 2006.

However, by November 2006 LaSalle was close to the maximum compensation he could earn without have his retirement allowance adjusted and the State Department of Education had not acted on its resubmitted waiver application.

In view of the situation, the district offered LaSalle a number of options, including “placement of his retirement benefits on hold, resignation prior to the date when his salary would reach the statutory earnings limitation, or termination of employment.”

LaSalle elected to resign, which resignation took effect prior to the district’s receiving the Education Department’s approval of the §211 application it had filed on behalf of LaSalle.

LaSalle then sued the district “to recover damages for breach of contract and wrongful termination of employment.”

The Appellate Division affirmed Supreme Court’s determination that the district had established its prima facie entitlement to judgment as a matter of law when it dismissed LaSalle’ petition.

Failure to obtain the required waiver in a timely fashion may result in a financial liability to the retiree.

For example, in Freda v Board of Educ. of City of New York, 224 A.D.2d 360, the court ruled that the NYC Police Retirement System could “recoup” over $100,000 of the retirement allowance that had been paid to Freda because the required §211 approval had not been obtained prior to his being reemployed by the New York City Board of Education following his retirement from the New York City Police Department.

N.B. RSSL §217.1 requires "school salary transparency and disclosure" and mandates that school districts and all BOCES to report " all monies earned by a retired person in their employ that is in excess of the limitations set out in §212 to the appropriate retirement system and to the appropriate political subdivision. RSSL §217.2 requires the school district or the BOCES employing a retired person "who is eligible to collect or is already collecting a retirement allowance" to report, among other things, all earnings of such an individual to the appropirate retirement system and to the State Comptroller.


*The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.

** RSSL §211.2(a), in pertinent part, provides that ”No retired person may be employed in a position in public service pursuant to subdivision one hereof except upon approval of  …  (2) the commissioner of education if such person is to be employed in the unclassified service of a school district other than the city of New York, a board of cooperative educational services or a county vocational education and extension board.... The

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02632.htm

Considering “mitigating factors” in setting a disciplinary penalty

Considering “mitigating factors” in setting a disciplinary penalty
Matter of Senior v Board of Education of Byram Hills Cent. School Dist., 37 AD3d 610,

The Board of Education of the Byram Hills Central School District adopted the findings of a disciplinary hearing officer that concluded that Fenton Senior was guilty of the charges of misconduct filed against him. The charge alleged that Senior was involved in an altercation with a co-worker. The penalty imposed by the Board: termination of Senior’s employment with the School District.

The Appellate Division, after affirming the finding that Senior was guilty of the charges filed against him, annulled the penalty imposed: termination. The court said that “the penalty of termination imposed was so disproportionate to the petitioner's conduct as to be shocking to one's sense of fairness,” citing Matter of Pell v Board of Education, 34 NY2d 222.

The court then remanded the case to the School Board “for the imposition of an appropriate penalty less severe than the termination of [Senior’s] employment.”

The reason given by the Appellate Division for remanding the case for the purpose of imposing a lesser penalty: The Board “failed to give adequate consideration to certain mitigating factors.”

The “mitigating factors” listed by the court: Strong’s four-year employment record was unblemished, and he performed good deeds in the community.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/physical-altercation-with-coworker.html
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Fitness for promotion

Fitness for promotion
Alston v City of New York, 270 AD2d 3

Sometimes an employee sues the appointing authority in an effort to secure a promotion. Alston, a New York City caseworker, complaining that he had been denied a promotion because of his earlier conviction for Federal mail fraud. Alston asked a Supreme Court justice to direct his agency, New York City’s Administration for Children’s Services, to promote him to a supervisory position. Alston’s theory: Children’s Services’ failure to promote him constituted a violation of Section 296.15 of the Executive Law (New York’s Civil Rights Law).*
 
The Appellate Division sustained the lower court’s dismissal of Alston’s petition on the grounds that the caseworker’s allegations concerning the reasons why he was denied the promotion -- conviction of a crime -- were speculative.

In contrast, the court noted that record “set out evidence of [Alston’s] mediocre performance as a caseworker and of [Alston’s] prior attempt to deceive ACS by seeking a medical leave when he had actually taken a job with another City agency.”

Further, the court said that it concluded that Alston’s mail fraud conviction, which involved his submission of false car service vouchers in connection with his employment as a caseworker, raises legitimate issues about his fitness for the supervisory position.

* Another element relevant to this case: Section 752 of New York’s Correction Law. Section 752, in general, prohibits an employer from considering an applicants’ conviction of a crime in making its employment decision.

April 04, 2011

Court of Appeals hold that wage freeze by Buffalo Fiscal Stability Authority applies to wages lost during the freeze and to longevity and promotional steps

Court of Appeals hold that wage freeze by Buffalo Fiscal Stability Authority applies to wages lost during the freeze and to longevity and promotional steps
Matter of Meegan v Brown, 2011 NY Slip Op 02436, Court of Appeals

The State Legislature created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year.

Among other powers, the BFSA was authorized to impose a wage freeze upon finding that such a freeze was essential to the adoption or maintenance of a City budget or financial plan – which it did in April 2004, determining "that a wage freeze, with respect to the City and all Covered Organizations, is essential to the maintenance of the Revised Financial Plan and to the adoption and maintenance of future budgets and financial plans that are in compliance with the Act."

The freeze, effective April 2004, prevented any increase in wages, including increased payments for salary adjustments according to "plan and step-ups or increments".

The freeze was lifted in July 2007, whereupon the BFSA and the City indicated that City employees would immediately be entitled to a one-step increase in salary and wages. The Unions objected, however, contending that the employees were entitled to advance the four salary steps that they would have received had the freeze not been imposed.

The Union sued and Supreme Court held that Public Authorities Law Section §3858 (2)(c)(iii) applies only to wages lost during the freeze and not to longevity and promotional steps provided in the various contracts between the City and its unions and therefore the teachers were "entitled to their previously negotiated wage increase benefits going forward immediately."

Although the Appellate Division affirmed the Supreme Court ruling for essentially the same reasons, (see 63 AD3d 1673 [4th Dept 2009]), the Court of Appeals reversed, holding: “Public Authorities Law § 3850-a sets forth the Legislature's intent. In that provision, the Legislature declared that the "maintenance of a balanced budget by the city of Buffalo is a matter of overriding state concern." This remedial legislation was enacted to provide the city of Buffalo with "long-term fiscal stability," ensuring confidence of investors in the City's bonds and notes and to protect the economy of the region (id.). The Act further provides that "[t]he provisions of this title shall be liberally construed to assist the effectuation of the public purposes furthered hereby" (id. § 3873). Thus, the entire purpose of the statute was to place the city of Buffalo on sound financial ground over the long term. In order to accomplish such purpose, BFSA was empowered to freeze wages and salary increments until the City's growth and stability were renewed. The intent of the statute supports the City's position.”

The Court of Appeal’s decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02436.htm
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Only a resident of the town may be appointed to serve in a public office of the town

Only a resident of the town may be appointed to serve in a public office of the town
Matter of Ricket v Mahan, 2011 NY Slip Op 02520, Appellate Division, Third Department

After the Town Board of the Town of Colonie passed two resolutions — one appointing John H. Cunningham to a two-year term as Commissioner of Public Works and another appointing Michael M. Burick to a six-year term as Personnel Officer, Theodore W. Ricket, a resident of the Town of Colonie, commenced an Article 78 proceeding challenging both appointments.

Ricket contended that Cunningham's appointment was invalid because he did not reside in the Town, nor did he possess the qualifications established for this position by the Town in its local law.*

As to Burick's appointment as Personnel Officer, Ricket complained that the appointment was invalid because, under the Town Law, as the Town Board was only authorized to appoint him for the remainder of his predecessor's unexpired term.

Supreme Court dismissed Ricket’s petition with respect to Cunningham but determined that Burick could only be appointed by the Town Board for the unexpired portion of his predecessor's term, and so modified his appointment to this position.

Both the Town and Ricket, respectively, appealed the Supreme Court’s rulings.

By way of background, the Appellate Division noted that after the Town had abolished the Office of Superintendent of Highways — an elected position that could only be held by a Town resident — it enacted a local law creating the position of Commissioner of Public Works - Town of Colonie Code §34 This local law, among other things, provided for “an appointed position with a definite term, and set forth a description of the position's official responsibilities and the qualifications needed to be appointed to this position.” However, the local law was silent as to whether the appointee had to be a Town resident.

Since the local law is silent as to whether the Commissioner of Public Works must be a Town resident, the Appellate Division ruled that the issue presented is whether state law serves to impose such a requirement. First, noted the court, the Town, when it enacted this local law, made no reference to any state statute, nor did it identify in the local law any state statute that it intended to supercede.

In this context, the Appellate Division noted that two state statutes are implicated by this proceeding.

1. The Public Officers Law §3(1), provides that "[n]o person shall be capable of holding a civil office who shall not, at the time he [or she] shall be chosen thereto, . . . be a citizen of the United States, a resident of the state, and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he [or she] shall be chosen, or within which the electors electing him [or her] reside" (emphasis by the court);** and

2. The Town Law §23(1), states that all "elective officer[s] of the town" and "[e]very other officer of the town at the time of his [or her] appointment and throughout his [or her] term of office shall be an elector of the town" (emphasis by the court). An elector of a town is an individual who may register as a voter therein regardless of whether that person has actually registered (see 1985 Atty Gen [Inf Op] 143).

Although the Town Law identifies some town officers that must be town residents, such as town supervisor and superintendent of highways, this listing, said the court, is not exhaustive and specifically provides that "[a]ll other officers and employees in such a town shall be appointed by the town board." In other words, the state law provides that if a town enacts a local law creating a public or civil office and the person appointed to it is a town officer, the appointee must be a town resident.

However, as neither the Public Officers Law nor the Town Law defines what constitutes a public or civil office or who qualifies as a town officer, the Appellate Division ruled  that such a determination must of necessity depend upon the nature of the position, its role in town governance and whether the position involved has responsibilities that require a "high degree of initiative and independent judgment" The Appellate Division also noted “other factors to be considered are whether an oath of office*** is required and whether the appointment is for a definite term,” citing 2006 Atty Gen [Inf Op] 1032).

The court then ruled:

“Here, the Commissioner of Public Works takes an oath of office (see Town of Colonie Code § 34-10), serves a two-year term and, according to the Town Code, is "the principal executive officer and administrative head of the Department of Public Works . . . with such powers as shall be necessary for the proper administration of the Department of Public Works consistent with applicable laws" (Town of Colonie Code § 34-3 [A]). Given the nature of this position — and the crucial role it plays providing essential services for the Town — we conclude that the Commissioner of Public Works is a town officer who must be a town resident. Since Cunningham has acknowledged that he was not a Town resident when he was appointed to this position, and does not intend to become one in the future, his appointment as Commissioner of Public Works does not comport with relevant state law and is invalid.

Const, art VIII, § 1), we note that no one has claimed during this proceeding that these payments were not made for services rendered. As such, the conclusion reached herein does not serve to alter the fact that Cunningham earned the compensation for which he was paid and, as such, the salary and benefits he earned while serving in this position did not constitute an illegal gift of public funds.

“As for Burick's appointment as Personnel Officer, the Town Law specifically provides that "[w]henever a vacancy shall occur or exist in any town office, the town board or a majority of the members thereof, may appoint a qualified person to fill the vacancy" and that when "the appointment [is] made to fill a vacancy in an appointive office, the person so appointed shall hold office for the remainder of the unexpired term" (Town Law §64[5] [emphasis by the court). This provision is controlling and, thus, as Supreme Court found, Burick's appointment as Personnel Officer must be limited to the remainder of his predecessor's unexpired term (see Civil Service Law §15[1][b])****.”

* Ricket also sought a declaration that the salary and benefits paid to Cunningham while he served as Commissioner constituted "an unconstitutional gift of public funds" that must be returned to the Town.

** An elector of a town is an individual who may register as a voter therein regardless of whether that person has actually registered (see 1985 Atty Gen [Inf Op] 143).

*** See, also, Civil Service Law §62 which, in pertinent part, “Every person employed by the state or any of its civil divisions, except an employee in the labor class, before he shall be entitled to enter upon the discharge of any of his duties, shall take and file an oath or affirmation in the form and language prescribed by the constitution for executive, legislative and judicial officers….. execute his or her requires “Constitutional oath upon appointment.”

**** Civil Service Law §15[1][b], in pertinent part, provides that the Personnel of a suburban town described in subdivision four of section two of this chapter shall be appointed by the town board of such town. … The term of office of a personnel officer shall be six years…. A personnel officer shall have all the powers and duties of a municipal civil service commission.

The decision is posted on the Internet at:  
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02520.htm
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Challenge to dress code alleges gender discrimination


Challenge to dress code alleges gender discrimination
Matthews v City of New York, 270 AD2d 45

While claims of unlawful discrimination based on an employer’s dress code are not as common as they once were, dress code gender discrimination was one of the claims made by provisional caseworker, Makebra Matthews, after she was terminated from her job with the City’s Administration for Children’s Services [ACS].

Matthews, in an effort to regain her former position, alleged that the city was guilty of gender discrimination because it disapproved of her manner of dress and fired her. She contended that her dismissal resulted from ACS’s enforcing a dress code that allowed men, but not women, to wear sexually provocative or otherwise inappropriate clothes at work.

The city, on the other hand, argued while Matthews’ dress might be inappropriate for the workplace, the only reason it had dismissed her was because it was dissatisfied with the way she performed her assignments. Was this a mixed motive case?*

The Appellate Division ruled in favor of the city, commenting that Matthews had failed to make out a prima facie case of discrimination based on sex.

The court said that the city presented abundant evidence showing reasons for being dissatisfied with [Matthews] entirely apart from her manner of dress.

Dismissing Matthews’ complaint, the Appellate Division explained that [a]bsent a prima facie showing of discrimination, the mixed-motive analysis set out by the U.S. Supreme Court in Price Waterhouse v Hopkins is not applicable.

* See Price Waterhouse v Hopkins, 490 US 228

Employee penalized 15 days of vacation leave for failing to comply with his supervisor's lawful order

Employee penalized 15 days of vacation leave for failing to comply with his supervisor's lawful order
Binford v Safir, App. Div., 270 AD2d 129

His failure to comply with a lawful order by his superior cost New York City police officer Warren Binford 15 days of his accumulated vacation credits.

Although Binford attempted to have the courts overturn the disciplinary action taken against him, the Appellate Division dismissed his appeal, noting that the record contained substantial evidence that Binford did not obey [a] superior officer’s order to leave the radio room when directed to do so.

The substantial evidence: testimony by Binford’s superior officer.

The court noted that evidence presented during the disciplinary hearing raised a question that was essentially one of credibility. It, however, said that the Commissioner’s crediting the superior officer’s testimony over that given by Binford was a proper exercise of the Commissioner’s discretion.

Holding that the penalty imposed “does not shock to our sense of fairness,” -- the standard established by the Court of Appeal in Pell v Board of Education, 34 NY2d, 222 -- the court dismissed Binford’s petition.


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April 03, 2011

Former Otisville treasurer pleads guilty to embezzling town funds

Former Otisville treasurer pleads guilty to embezzling town funds
Source: Office of the State Comptroller

The former Otisville treasurer will serve up to three years in jail and reimburse the village $77,000 after pleading guilty today in Orange County Court to grand larceny following an investigation by State Comptroller Thomas P. DiNapoli, the New York State Police and the Orange County District Attorney’s Office. Barbara McDowell is scheduled to be sentenced on June 10.

“McDowell took advantage of the trust of her fellow village residents to line her own pockets,” DiNapoli said. “I want to thank the State Police and Orange County District Attorney Frank Phillips for their assistance in retrieving the thousands of public dollars stolen during McDowell’s tenure.”

Investigators determined McDowell misappropriated village funds over a six-year period by writing at least 30 unauthorized checks to herself, including extra payroll and health benefit waiver checks. McDowell attempted to conceal her theft through poor record keeping and falsifying records.

DiNapoli’s office was alerted by Otisville Mayor Brian Wona after his office discovered that the village’s bank accounts were nearly depleted and requested an examination. In addition to the findings against McDowell, the subsequent audit detailed the lack of adequate internal controls and inadequate policies and procedures in Otisville.

The Comptroller’s office identified irregularities in Otisville’s financial records management as far back as 1999. Subsequent audits in 2002 and 2006 recommended several corrective actions, which were never followed.  After the Comptroller’s 2010 audit, the village and mayor committed to adopting policies and procedures to address these issues.  

A copy of the audit can be found at; http://osc.state.ny.us/localgov/audits/villages/2010/otisville.pdf
 

The Comptroller encourages the public to help fight against fraud and abuse.  New Yorkers and others may report allegations of fraud, corruption and abuse of New York State taxpayer monies and, or, property by: calling the Comptroller’s toll-free fraud hotline at 1-888-672-4555; filing a complaint online at investigations@osc.state.ny.us, or mailing a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.
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April 01, 2011

Free speech limitations on public employees

Free speech limitations on public employees
Wasson v Sonoma Co. Jr. Coll., 204 F.3d 659

A public employee may claim that he or she was disciplined as a result of his or her exercising his or her constitutionally protected right of free speech.

This was Sonoma County Junior College instructor Sylvia J. Wasson’s argument following her termination from her position. The reason for her dismissal: the College Board decided that she was the anonymous writer of six defamatory letters and flyers that vilified the college president, Robert Agrella.

Wasson sued, claiming the college’s action violated her First Amendment rights. Wasson, however, had denied writing the five letters and the flyer she claimed was the reason underlying her termination. Her denial proved fatal to her wrongful termination in retaliation for exercising her right to free speech argument.

The U.S. Circuit Court of Appeals, Ninth Circuit, said that a free speech claim depends on speech.... In what may be a variation of Catch 22, the court said that because Wasson denied writing the letters or otherwise being involved in the affair, she had no basis for claiming her right to free speech had been violated.

In the words of the court, “[w]e conclude that the plaintiff fails to state a First Amendment claim in these circumstances because she cannot show the alleged wrongful conduct was in retaliation for any exercise of her free speech rights.”

Wasson also presented an alternative argument: she was defending the First Amendment free speech rights of the actual writer of the offending letters and flyer.

The court dismissed this theory as well. The Circuit Court ruled that Wasson lacked standing because she did not show that she had any relationship to, or with, the alleged anonymous writer, the second prong of the three-prong test set out in Powers v Ohio, 499 US 400.

In order to prevail on the basis of a defending the free speech of others argument, the individual must show that he or she (1) actually suffered an injury in fact, (2) had a close relation to the third party, and (3) there was some hindrance to the third party’s ability to protect his or her own interests.

Further, the courts typically distinguish between a public employee’s exercising his or her right to free speech concerning a matter of public interest in contrast to speech that essentially involves the individual’s personal interests. Pickering v Board of Education, 391 US 563, sets out the tests applied by the courts in such cases.
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The approval of a leave of absence by individual not authorized to approve such leave is invalid

The approval of a leave of absence by individual not authorized to approve such leave is invalid

Renaud v City of New York, 269 AD2d 283

From time to time an individual is absent from work without approval – AWOL. What happens if the individual is absent after receiving approval to go on leave but the individual approving the leave is not authorized to grant such approval? This was an issue in the Renaud case.

Renaud was terminated because she was absent from her position without approval [AWOL] for three months. Renaud’s defense: one of the agency’s employee relations specialists approved the absence and therefore the agency cannot deem her to have been AWOL.

This seems to be an easy issue to decide, except although the employee relations specialist involved was not authorized to approve the leave in the first instance, the specialist was unaware that Renaud had been already referred for discipline because of her AWOL status.

May the employee rely on the unauthorized approval of her absence? This was the question considered by the Appellate Division when Leslie Renaud sued the Administration for Children’s Services in an effort to be reinstated to her position with the agency.

The court said that Children’s Services’ decision to terminate Renaud for a three-month absence without leave that was in flagrant violation of the agency’s time and leave rules was neither arbitrary nor capricious and sustained Children’s Services decision to terminate her.

What about Renaud’s claim that one of the agency’s employment relations specialists had approved her leave. In effect, Renaud contended Children’s Services was estopped from considering her absence AWOL since the employee relations specialist had approved it.

The Appellate Division quickly disposed of this argument. It said that estoppel is not available against an administrative agency for the purpose of ratifying administrative error.

Accordingly, Renaud could not rely on the approval of her leave by the employee relations specialist to neutralize the agency’s decision to dismiss her as the employee relations specialist was not authorized to grant any such approval on behalf of Children’s Services.
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Considering the value of toxicology reports in random drug tests

Considering the value of toxicology reports in random drug tests
Seeley v New York City, 269 AD2d 205

Are uncertified toxicology reports indicating positive drug test results sufficient to support a decision to terminate an employee? This was the issue presented by Clarice E. Seeley, a New York City police officer, who was terminated after being found guilty of testing positive for cocaine in a random drug test.

Seeley argued that due process required the court to vacate the police commissioner’s decision because it was not supported by substantial evidence. Seeley contended that the commissioner based his ruling on unreliable toxicology reports because they were not certified copies.

The Appellate Division was not impressed by this argument. After commenting that an administrative tribunal is not strictly bound by the rules of evidence, the court pointed out that foundation testimony by the toxicologist who supervised the testing and prepared the final toxicology reports was more than adequate to establish the authenticity and reliability of the copies of the reports entered into evidence.

Also noted was the fact that Seeley’s attorney declined the hearing officer’s invitation to examine the original toxicology reports before copies of them were received in evidence. The Appellate Division then sustained Seeley’s dismissal, commenting that the penalty does not shock our sense of fairness under the circumstances.
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