Employees of a state as an employer may not sue their employer for alleged violation of the ADEA or similar acts of Congress

Employees of a state as an employer may not sue their employer for alleged violation of the ADEA or similar acts of Congress

Kimel v Board of Regents, 528 U.S. 62

Section 58 of the Civil Service Law sets out minimum and maximum age qualifications for initial appointment as a police officer by political subdivisions of New York State other than the City of New York.

Sometimes this “maximum age” for appointment as a police officer was held to be a violation of Age Discrimination in Employment Act [ADEA]. At other times, the “maximum age” for appointment to law enforcement positions was “exempted” from the provisions of the ADEA by Congress.

Now the U.S. Supreme Court has said that federal courts do not have jurisdiction to consider “age discrimination” law suits filed under the ADEA, dismissing appeals in cases involving:

1. 36 current and former Florida State University faculty members who complained that they were denied salary increases in violation of ADEA;

2. A Florida corrections officer, Wellington Dick, who contended that his age was one of the considerations that resulted in his being denied a promotion; and

3. Faculty members of an Alabama state-run college who claimed that they were denied promotions and other benefits such as sabbatical leaves and committee assignments because of their age.

The Supreme Court held that state workers cannot sue their employer in federal court for alleged violations of ADEA.

This is consistent with the high court’s rulings in other recent cases limiting Congress’ efforts to subject states to federal law under statutes adopted pursuant to the “commerce clause” such as Alden v Maine, 527 U.S. 706, a case involving suing states in federal court for alleged violations of the Fair Labor Standards Act.*

The high court said that the 11th Amendment bars a state employee from suing his or her employer in federal court without its consent.

In effect, the court held that the federal courts do not have any jurisdiction to consider suits brought against states by its workers pursuant to legislation enacted by Congress under color of the commerce clause.

Another element in these cases: allegations that actions by the states involved violated the 14th Amendment.

The majority’s response to these 14th Amendment claims in this 5 to 4 decision may have a significant impact in resolving pending and future law suits involving public personnel law and employment in the public sector brought in federal court.

In response to arguments concerning these 14th Amendment claims Justice Sandra Day O’Connor said that "States may discriminate on the basis of age without offending the 14th Amendment if the age classification in question is rationally related to a legitimate state interest."

The Supreme Court probably will continue to apply this rationale in cases involving tests of other federal civil rights laws such as the Americans with Disabilities Act.

However, in Alden, the Supreme Court pointed out that the 11th Amendment applies only to states, commenting that political subdivisions of a state could not claim such immunity.

Thus, the Alden ruling indicates that there is an “important limit” to the principle of sovereign immunity barring suits against States -- such immunity does not extend to suits brought against a municipal corporation or other governmental entity that is not an arm of the State.

In each of these three cases, a state was the defendant. As Section 58 is a “state-wide” law adopted by the State Legislature, it could be argued that the Supreme Court’s rulings concerning both the 11th Amendment and the 14th Amendment apply should the age limitations set by Section 58 be challenged.

In any event, the court’s views with respect to the impact of the 14th amendment in cases of alleged discrimination may prove significant insofar as both the state as an employer and a political subdivision of a state as an employer, is concerned.

* The Commerce Clause has been traditionally used by Congress to adopt laws in order to regulate “interstate commerce.” 

Veteran's rights upon the abolishment of positions for economy or other lawful purpose

Veteran's rights upon the abolishment of positions for economy or other lawful purpose

Fromer v Commissioner of Labor, 268 AD2d 707

An individual’s status as veteran within the meaning of Section 75 of the Civil Service Law may provide an individual with rights and benefits beyond the “disciplinary due process rights” usually claimed, as the Fromer case demonstrates.

Howard A. Fromer was serving as the general counsel to the State Energy Office when the agency was abolished on March 31, 1999. Fromer’s application for unemployment insurance was rejected by the Unemployment Insurance Appeal Board.

The Board ruled that Section 565 of the Labor Law barred Fromer from receiving benefits because he served in a major nontenured policymaking or advisory position that was statutorily excluded as employment for the purpose of qualifying for benefits.”

Fromer appealed, claiming that:

1. The exclusion in Labor Law Section 565 (2) (e) should be construed as containing an exception where the individual is terminated as the result of the abolition of his or her position;

2. Section 75(1)(b) of the Civil Service Law gave him “limited tenure” rights by reason of his status as a veteran.

The Appellate Division rejected Fromer’s first argument, commenting that “the statutory exclusion focuses “solely on the nature of claimant’s position in the governmental agency,” not on the reason for a claimant’s termination.

The court said that the Board decided that Labor Law Section 565(2)(e) does not include the abolishment-of-position exception Fromer claimed. As this conclusion is “neither irrational nor unreasonable in light of the absence of language in the statute to suggest that the Legislature intended any such exception,” the Appellate Division ruled that the Board’s statutory interpretation must be upheld since it was “rational and reasonable.”

The alternative argument presented by Fromer did better as it raised an issue not previously considered by the Board -- Section 75(b)(1) of the Civil Service Law provided him with a “a limited grant of tenure” sufficient to qualify him for benefits.

The Appellate Division said that the Board’s determination had to be reversed and remitted reconsideration, rejecting the Attorney General’s argument that the record provided a rational basis for the Board’s determination.

Why? Because, said the court, the Board had not based its determination, much less considered his claim of “limited tenure status,” in deciding Fromer’s eligibility for unemployment insurance benefits.

Commenting that it is well settled that “judicial review of an administrative determination is limited to the grounds invoked by the agency,” the court said that this issue had to be addressed by the Board as to “its determination of [Fromer’s] entitlement to the limited tenure afforded by Section 75(b)(1).”

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.
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Qualified immunity from civil lawsuits

Qualified immunity from civil lawsuits 

Doninger v. Niehoff, USCA, Second Circuit, Docket Nos. 09–1452–cv (L), 09–1601–cv (XAP), 09–2261–cv (CON) 

Avery Doninger, a high school student, claimed that school administrators violated her First Amendment rights to free speech by (1) preventing her from running for Senior Class Secretary as a direct consequence of her off-campus internet speech, and (2) prohibiting her from wearing a homemade printed t-shirt at a subsequent school assembly.

The United States Court of Appeal, Second Circuit, said that in adjudicating Doninger’s claims it had to determine if the school administrators involved were entitled to qualified immunity.* 

Concluding that the First Amendment claimed by Doninger was not clearly established, the Second Circuit affirmed Federal District court's decision that administrators were entitled to qualified immunity.

Addressing Doninger’s First Amendment claims at issue with respect to the defense based on the “doctrine of qualified immunity” advanced by the school administrators, the court said the in deciding whether to grant a government official's motion for summary judgment on qualified immunity grounds, a court conducts a two-part inquiry.

The first test: considering “the facts" in the light most favorable to the plaintiff, do they show that the [official's] conduct violated a constitutional right.”

If the plaintiff’s cause survives that test, the court then applies a second test: whether the right at issue was ‘clearly established’ at the time of [the official's] alleged misconduct.”

If the court finds that the public officer’s conduct did not violate a clearly established constitutional right, or if it was objectively reasonable for the officer to believe that his or her conduct did not violate such a right, then the official is protected by qualified immunity.

In determining if a right is clearly established, the Second Circuit said that it looks to whether (1) it was defined with reasonable clarity, (2) the Supreme Court or the Second Circuit has confirmed the existence of the right, and (3) a reasonable defendant would have understood that his conduct was unlawful. Significantly, the court said that “The question is not what a lawyer would learn or intuit from researching case law, but what a reasonable person in [the official’s] position should know about the constitutionality of the conduct.”

Further, said the court, “when faced with a qualified immunity defense, a court should consider the specific scope and nature of a defendant's qualified immunity claim. That is, a determination of whether the right at issue was ‘clearly established’ must be undertaken in light of the specific context of the case, not as a broad general proposition.”

Citing Harlow v. Fitzgerald, 457 U.S. 800, the Second Circuit concluded that “it would gravely distort the doctrine of qualified immunity to hold that a school official should fairly be said to ‘know’ that the law forb[ids] conduct not previously identified as unlawful.” In Harlow the U.S. Supreme Court held that “government officials performing discretionary functions are generally shielded from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."

Another area in which a qualified privilege may be asserted involves communication. For example, an employee's conduct or behavior may be the subject of oral or written communications between administrators or administrators and employees. If the employee objects to the content of such communications, he or she may sue the employer and the individuals involved for defamation, claiming the contents of the communications concerning his or her behavior constitutes slander [if oral] or libel [if written].

The individuals being sued for defamation in such cases will often respond that the statements they made in such communications are privileged and thus they are immune from liability for their actions.

In Herlihy v Metropolitan Museum of Art, 214 A.D.2d 250, the Appellate Division considered such a case.

Summarized below are the views of the Appellate Division, First Department, concerning an administrators' or an employees' claim that their statements are privileged or that they are protected by some form of immunity in making such statements.

The issue arose when a number of individuals serving as volunteers with the Metropolitan Museum of Art complained that their supervisor, Cecile Herlihy, directed racial or ethnic epithets towards them. Herlihy denied the charges.

After what the Appellate Division characterized as "some sort of investigation," Herlihy was directed to "apologize for her remarks."

Ultimately Herlihy was dismissed by the Museum. She sued, claiming, among other allegations, that she had been slandered when charged with directing racial or ethnic epithets towards the volunteers making the complaint.

The defendants, on the other hand, argued that their statements were protected by an absolute or qualified immunity for the following reasons:

1. State and federal human rights laws gave them absolute immunity from retaliation for filing complaints alleging unlawful discrimination.

2. A "common-law privilege absolutely protected them from defamation suits" based on their communicating these allegations to Museum officials.

3. The statements that made concerning Herlihy were protected by a qualified privilege.

A state Supreme Court justice dismissed the action filed by Herlihy against the Museum but denied the volunteers' motion to dismiss Herlihy's action against them in its entirety. The volunteers appealed the Supreme Court's decision. The Appellate Division addressed each of their arguments in turn, holding that the following guidelines apply:

1. Statutory provisions prohibiting retaliation for filing civil rights complaints do not protect "bad faith complainants making false discriminatory related charges" from defamation actions that might arise following the filing of such complaints.

2. Common-law provides absolute immunity from defamation actions "only to those individuals participating in a judicial, legislative or executive function and is based on the personal position of status of the speaker."

3. Under New York law, a "qualified privilege" or a "qualified immunity" applies only in situations involving "good faith communications by a party having an interest in a subject, or a moral or societal duty to speak, ... made to [another] party having a corresponding interest."

With respect to claims of absolute immunity under common-law, the Appellate Division noted a ruling by the Court of Appeals concluded that a private citizen speaking at a public hearing "was not conferred with absolute privilege because, unlike members of the ... Board, the [individual] had no office at the hearing [see 600 West 115th St. Corp. v Von Gutfeld, 80 NY2d 130].

The Appellate Division ruled that the defendants in this action did not enjoy absolute immunity under common-law because "they did not make their statements in an official capacity while discharging a governmental duty, nor were the statements made during, or for, a judicial, quasi-judicial or administrative hearings."

In considering the defendant's claim to a qualified privilege, the Appellate Division said that "the underlying rationale behind a qualified privilege is that so long as the privilege is not abused, the flow of information between parties sharing a common interest should not be impeded." A qualified privilege will be lost, however, if the statements claimed to be defamatory were "published with malice or with knowledge of their falsity or reckless disregard as to their truth or falsity...." 

The decision indicates that "common interest warranting a qualified privilege" has been found to exist between employees of an organization [Loughry v Lincoln First Bank, 67 NY2d 369], members of a faculty tenure committee [Stukuls v State of New York, 42 NY2d 272], and employees of a board of education [Green v Kinsella, 36 AD2d 677].

How did the Appellate Division resolve this case? First it upheld the lower court's ruling dismissing Herlihy's action against the Museum for "emotional distress." It then held that "it would be inconsistent to deny an action for emotional distress caused by [being charged] with the use of ethnic slurs while allowing one for being falsely labeled as a user of such slurs." Accordingly, the Appellate Division concluded that Herlihy's action for slander should be dismissed as well.

The Court said that although the racial or ethnic epithets attributed to Herlihy were "deplorable and ... evidence of a certain narrow-mindedness and mean-spiritedness ... [it] ... does not rise to the level of outrage required to recover under a cause of action that is limited to only the most egregious acts." In other words, the allegations of the defendants were not so egregious as to be sufficient to allow Herlihy to recover for being falsely labeled a user of such slurs.

* In contrast to the Doctrine of Qualified Immunity,” the Doctrine of Absolute Immunity insulates certain public officials from civil lawsuits involving the performance of their official duties. Included among those protected by “absolute immunity” are legislators in connection with their legislative duties and judicial and quasi-judicial officers performing judicial or quasi-judicial functions. 

The Doninger decision is posted on the Internet at: 

http://www.ca2.uscourts.gov/decisions/isysquery/c811c4ed-2d34-4a20-91ca-3c5ccf044757/1/doc/09-1452_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/c811c4ed-2d34-4a20-91ca-3c5ccf044757/1/hilite/ 

The Herlihy decision is posted on the Internet at: 

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=1&origin=Search&query=%22CECILE+HERLIHY%22&rlt=CLID_QRYRLT464015158845&rltdb=CLID_DB449175058845&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA579175058845&sv=Split&tempinfo=word&vr=2.0

Discipline penalties

Discipline penalties

Nicastro v Safir, App. Div., First Dept, 266 AD2d 167

Queally v Safir, App. Div., First Dept, 266 AD2d 167
Dillon v Safir, App. Div., First Dept., 265 AD2d 196

Penalties imposed following disciplinary action taken pursuant to Section 75 of the Civil Service Law are frequently challenged by appealing either to the civil service commission having jurisdiction or to the courts pursuant to an Article 78 proceeding [Article 78, Civil Practice Law and Rules].

Although the penalty of dismissal is the one most frequently appealed, lesser penalties are also subject to challenge as the Nicastro, Queally and Dillon cases demonstrate.

In Nicastro case, New York City police officer Ann Nicastro challenged her being found guilty of having been discourteous to individuals in the course of effecting an arrest.

The penalty imposed: the loss of 15 days of vacation time. The Appellate Division sustained both the disciplinary determination and the penalty imposed.

In Queally, decided with Nicastro, the court affirmed the imposition of the penalty of the loss of 10 days of vacation time after New York City police officer Robert Queally was found guilty of using excessive force to effect an arrest.

The Appellate Division referred to Pell v Board of Education, 34 NY2d 222, in support of these rulings.

A similar penalty, 10 days suspension without pay, was imposed on a New York City police officer found guilty of directing ethnically offensive epithets to a garage attendant while off-duty [Police Department v Murray, OATH #111/00, 11/26/99].

The third case, Dillon v Safir, also involved allegations of the use of excessive force.*

Here New York City police officer Bradley Dillon contested his being guilty of using excessive force in effecting an arrest and the penalty imposed: “dismissal probation for one year” and the forfeiture of 30 days of annual leave credit.

The Appellate Division dismissed his petition, holding that the disciplinary determination was supported by the records and that the penalty imposed by the Commissioner was reasonable under the circumstances.

* Dillon was subsequently terminated during his disciplinary probationary period [see 270 AD2d 116 – Here the Appellate Division upheld Dillon’s termination without a hearing and without a statement of reasons while he was serving a one-year disciplinary probation imposed pursuant to Administrative Code of the City of New York § 14-115 (d). This penalty was the one affirmed by 265 AD2d 196, above.

Eligibility for benefits pursuant to the Volunteer Firefighters' Benefit Law

Eligibility for benefits pursuant to the Volunteer Firefighters' Benefit Law

Matter of Weinstein v Somers Fire Dist., 37 AD3d 917

Robert Weinstein, a self-employed real estate agent, sustained a back injury in July 2001 while lifting an oxygen tank into an ambulance in furtherance of his duties as a volunteer firefighter. A Workers' Compensation Law Judge ruled that Weinstein’s injury constituted a permanent partial disability and that he had suffered a 50% loss of earning capacity. Accordingly, Weinstein was eligible for benefits provided by Section 10 of the Volunteer Firefighters' Benefit Law.*

The Fire District and its workers' compensation carrier appealed the Workers’ Compensation Board’s determination.

According to the ruling, Weinstein suffered "chronic low back pain . . . [which] reduced his ability to work." The record indicated that Weinstein’s employer had indicated that Weinstein’s “average work hours had been lowered from 60 hours per week to 25 hours per week” because of the work-related injury that resulted in Weinstein’s “chronic low back pain.”

This, said the Appellate Division, constituted substantial evidence in support of the Board's decision that claimant's injury resulted in a 50% reduction in earning capacity.

* The Volunteer Firefighters’ Benefit Law provides, in relevant part: “A volunteer firefighter who is injured in the line of duty is entitled to workers' compensation benefits if he or she demonstrates a loss of earning capacity, namely, an inability to continue performing either the employment duties usually and ordinarily performed at the time of injury or those required by a reasonable substitute."

School district’s lawsuit against former members of a school board for alleged fiscal mismanagement held subject to a six-year statute of limitations and thus was timely filed

School district’s lawsuit against former members of a school board for alleged fiscal mismanagement held subject to a six-year statute of limitations and thus was timely filed 

Roslyn Union Free School Dist. v Barkan, 2011 NY Slip Op 03646, Court of Appeals

The issue in this appeal was whether a three or six-year statute of limitations applies to causes of action for negligence and breach of fiduciary duty by a school district against a former member of its school board. The Court of Appeals held the six-year limitations period in CPLR 213(7) is applicable and, therefore, this action was timely commenced by the School District against a former member of the school board.*

The School District’s action against a number of members of the school board stemmed from what the Court of Appeals characterized as a long-running conspiracy to loot the school district's coffers by a number of school district administrators. An extensive forensic audit by the State Comptroller determined that, from 1998 through 2004, approximately $11 million had been misappropriated: Assistant Superintendent for Business Pamela Gluckin had stolen over $4.6 million; Superintendent Frank Tassone had taken more than $2.4 million; and Account Clerk Deborah Rigano had received about $300,000. Various sums had been funneled to more than two dozen people.

The court noted that one of the defendants in this action, Carol Margaritis, was a member of the Board for approximately one year, beginning in 2000 and left the Board before Gluckin's criminal activities came to light. Further, said the court, there are no allegations that Margaritis knew about the ongoing illegal scheme, benefited from the theft of the school district's funds or received any portion of the stolen monies. Her only link to the situation was that she was a member of the Board during a time period that funds were being stolen by school district employees.

In any event, Margaritis moved to dismiss the complaint against her, arguing that the causes of action were time-barred because the school district's claims were subject to the three-year statute of limitations in CPLR 214 (4) and the complaint was filed more than three years after she ceased being a school board member. This argument was rejected by the high court and it ruled that the six-year statute of limitations controlled and thus the lawsuit against her was timely.

The Court of Appeals commented that this was “an unusual case because it is rare for school districts to engage in litigation against the individuals who voluntarily seek election to serve on school boards. Such public service is commendable and a vital component of our state's legal and moral duty to educate its children. The filing of a lawsuit by a school district against the members of its school board is certainly a disincentive for attracting qualified candidates to perform this important civic function.”

The court attributed this action by the district as responding to a particularly egregious set of facts involving severe financial mismanagement — over $11 million was stolen from taxpayers in a criminal conspiracy operated by two high-ranking school district employees and certain members of the Board were allegedly complicit because they may have breached the duties that were entrusted to them to protect the school district's assets.

Although the complaint here was not barred by the statute of limitations, the court agree with the Appellate Division that the school district's allegations did not state a cause of action against Margaritis for an accounting. “This equitable remedy is designed to require a person in possession of financial records to produce them, demonstrate how money was expended and return pilfered funds in his or her possession.”

As the State Comptroller was able to trace countless financial transactions in order to determine how the vast bulk of the stolen monies was used and the identity of the individuals who received the funds, the court ruled that there appeared to be no need for an accounting by Margaritis, but reinstated the causes of action for breach of fiduciary duty, common-law negligence and declaratory judgment as against her as having been timely filed.

* The question before the Court of Appeals was not whether any board member bears a degree of responsibility for the financial losses suffered by Roslyn Union Free School District but whether the case against the former members of the school board was timely filed.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03646.htm

Involuntary leave under Civil Service Law Section 72

Involuntary leave under Civil Service Law Section 72

NYC Parks and Recreation v Matthews, OATH, 219/00

The New York City Department of Parks and Recreation wanted to place Rufus Matthews on leave pursuant to Section 72 of the Civil Service Law. Matthews objected.

The department claimed that Matthews, a park maintenance worker, was medically unfit to perform the duties and responsibilities of his position due to a heart condition.

Matthews, on the other hand, contended that he was fully able to perform the duties of his position notwithstanding his “heart condition.”

Pointing out that Section 72 places the “burden of proving mental or physical unfitness” upon the entity alleging it, OATH Administrative Law Judge [ALJ] Rosemarie Maldonado held that Parks and Recreation had failed to prove by a preponderance of the evidence that Matthews was “currently unfit” to competently perform his job duties as a city park maintenance worker.

Maldonado said that Matthews’s personal physician presented “compelling evidence” that [Matthews’] “cardiac rehabilitation was complete, and that physical exertion did not pose an unreasonable risk to his patient.”

In response to the department’s concern that Matthews “is endangering himself” by insisting that he be reinstated to full duty, the ALJ said while “commendably humanitarian,” the legal issue remains the impact of Matthew’s condition on his current ability to work.

Maldonado said that unless there is a clear showing of present impairment, the employer cannot place an individual on Section 72 leave “simply because there is some risk” that Matthews’ performance of his work might place him in some physical jeopardy.

According to the decision, where it is apparent at the time of the hearing that the employee’s condition is in check or otherwise under control, OATH has declined to find unfitness merely because of the existence of the potential for relapse or deterioration.

Reassigning work formerly performed by an individual laid off after his or her position is abolished

Reassigning work formerly performed by an individual laid off after his or her position is abolished

Matter of Kelly Krause and the Spencer-Van Etten CSD, Commissioner of Education, Decision No. 15,516

The lesson in this decision is that although it is not unlawful to reassign or redistribute the work performed by the former incumbent of a position that has been abolished to other staff members, the individual or individuals to whom the work is assigned must be qualified to perform the duties assigned to them.

The Spencer-Van Etten Central School District employed Kelly Krause as a full-time home economics teacher beginning with the 2000-2001 school year. During the 2004-2005 school year, Krause taught three Home and Career Skills courses to seventh grade students and two related courses to high school students.

At its July 12, 2005 meeting, the District’s Board adopted a resolution abolishing a number of teaching positions, including its full-time Home and Career Skills teaching position. Krause was laid off and her name was placed on a preferred eligible list for the Home and Career Skills title.

The District, however, continued to offer Home and Career Skills courses during the 2005-2006 school year. These courses, however, were assigned to five of the District’s incumbent teachers, none of whom was certified to teach Home and Career Skills.

Krause appealed to the Commissioner of Education, contending that the District’s actions with respect to the Home and Career Skills curriculum did not meet regulatory requirements.*

The Commissioner ruled that the District had improperly assigned teachers who lacked the required certification to teach its Home and Career Skills courses. He also found the Krause was on the “preferred eligible list” and remained available to teach the course during the time at issue here.

Noting that Education Law §3009 prohibits boards of education from employing unqualified teachers, the Commissioner said that the District’s practice of assigning teachers without the requisite Family and Consumer Sciences/Home Economics certification to teach the entire core curriculum in effect circumvents both the certification requirements and the incidental teaching regulations.

Although he said that the District improperly assigned uncertified teachers to its Home and Career Skills courses, the Commissioner concluded that the District had not created a specific position mandating the use of the preferred list to fill the vacancy. In the words of the Commissioner”

The record here shows that no vacancy occurred and no new position was created; instead, [the District’s] former teaching duties were redistributed albeit to teachers who lacked the proper certification. If, as a result of this decision, the District creates a new position in Home and Career Skills, [Krause] may indeed be entitled to such position by virtue of her place on the preferred eligible list of candidates.

The Commissioner ordered the District to “cease assigning teachers who lack the appropriate Family and Consumer Sciences or Home Economics certification to its seventh grade Home and Career Skills classes, review its curriculum, and comply with Education Law §3013 in the filling of any future vacancies.”

* The Home and Career Skills core curriculum prepared by the State Education Department (“SED”) identifies four process skills and ten content areas to be included in the course. The curriculum also notes that a certified Family and Consumer Sciences teacher must teach the course.

Retiree’s survivors application to modify the retiree’s election of a retirement option rejected

Retiree’s survivors application to modify the retiree’s election of a retirement option rejected
Kevin M Gorey, Jr. v New York State Comptroller, 2011 NY Slip Op 03329, Appellate Division, Third Department

Kevin M. Gorey Sr. applied for service retirement effective September 1, 2004 and elected benefit payments under the "Single Life Allowance" option. This option provided that Gorey Sr. would receive the maximum lifetime retirement allowance payable to him and the payments would stop upon his death. Further, this option did not permit Gorey to designate a beneficiary.

New York State and Local Employees’ Retirement System [ERS] sent Gorey Sr. a letter confirming his option selection and detailing his annual benefit payments. In addition, ERS told Gorey Sr. that he could his selection of his retirement option prior to September 30, 2004. Gorey Sr. did not submit any change and died on November 19, 2004.

Gorey Sr.’s children [Gorey, Jr.] asked ERS to void decedent's selection of the "Single Life Allowance" option, contending that Gorey, Sr. was incompetent at the time he made the selection. Ultimately ERS rejected Gorey Jr.’s application, holding that Gorey Jr. had not established that Gorey Sr. was incompetent* when he made his retirement option selection and Gorey Jr. sued in an effort to overturn the Retirement System’s decision.

The Appellate Division affirmed the Retirement System’s determination.

Noting that Gorey Jr. contend that the Retirement System “did not take adequate steps to ensure that [Gorey Sr.] made a proper retirement option choice, the court said that the Retirement System is "not required to insure that proposed retirees receive the best possible entitlement," citing Matter of Cummings v New York State & Local Employees' Retirement Sys., 187 AD2d 862, appeal dismissed 81 NY2d 834.

Further, said the court, the State Comptroller "has the exclusive authority to determine all applications for any form of retirement or benefits" and his decision will not be disturbed if it is supported by substantial evidence.

* The applicant for a retirement allowance is presumed to have been competent at the time he or she made his or her retirement option selection and the burden is on those challenging that election to prove the contrary.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03329.htm

Infringing on constitutionally protected speech

Infringing on constitutionally protected speech
Timothy M. Wrobel v County of Erie, CA2, 2007 WL. 186264

In reviewing Wrobel’s claim that Erie County had violated his right to free speech and association, the U.S. Court of Appeals for the Second Circuit said:

1. Government employees who are not policymakers have the right not to affiliate with or support a particular party or faction as a condition of employment.

2. Conditioning public employment on the provision of support for the favored political party “unquestionably inhibits protected belief and association”.*

The court concluded, “When reasonable inferences are drawn in Wrobel’s favor, the amended complaint sufficiently alleges that Wrobel was retaliated against for his lack of political affiliation with, or his refusal to pledge his allegiance to, the new Erie County administration.”

The Circuit Court also noted that in Zelnik v. Fashion Institute of Technology, 464 F.3d 217 (2d Cir. 2006), it explained that “actionable retaliation” in the context of the First Amendment was employer actions that “well might have dissuaded a reasonable worker [from asserting First Amendment-protected rights]”.**

As to Wrobel’s claim that the County had violated his First Amendment free speech rights, the Circuit Court said that "While we agree with the District Court that Wrobel’s pre-transfer speech was not on a matter of public concern, and was therefore not constitutionally protected we do not agree with its conclusion that Wrobel had not sufficiently alleged actionable retaliation following his expression of protected speech.”

Wrobel alleged that “defendant Douglas Naylon implicated him as the perpetrator of a theft of government property shortly after Wrobel discussed the corruption and politicization of his place of employment with an FBI agent.” Wrobel also alleged that other county officials had bribed others to testify against him at an arbitration hearing shortly after he engaged in protected speech.

In Conrick v Myers, 461 US 1l38, the United States Supreme Court established a two-prong test with respect to claims of dismissal in retaliation for "whistle blowing." To win, the individual must prove that (1) his or her speech is protected, i.e., the speech was a matter of public concern, and (2) that the protected speech was a substantial factor in motivating the termination

These adverse actions, said the court, “are sufficient to support a First Amendment retaliation claim,” because Wrobel’s petition “sets forth the necessary nexus between [Wrobel’s] statements concerning a matter of public concern and the defendant[s’] subsequent alleged retaliatory acts.”

Essentially public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreements concerning internal operations of the department or the agency that does not rise to the level of a “public interest,” do not appear to be protected by the Constitution.***

The decision is posted on the Internet at:  

http://nypublicpersonnellawarchives.blogspot.com/2007/01/freedom-of-association.html

* See also §107 of the Civil Service Law setting out certain prohibitions against certain political activities and improper influence.

** The court commented that monitoring of Wrobel’s phone calls, transfer of Wrobel to a faraway location, initiation of a criminal investigation against Wrobel, and other adverse actions alleged in the amended complaint—if proven true—would be sufficient to dissuade a reasonable worker from asserting his First Amendment rights. Wrobel, said the court, adequately alleges that the adverse actions were taken in retaliation for his protected associational activity.

*** See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, where the court held that a public employee’s speech was not constitutionally protected where the speech was “motivated by and dealt with her individual employment situation”.

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”

In re Police Officer Ruben Olavarria, etc., v Raymond W. Kelly, as Police Commissioner of the City of New York, et al., 37 AD3d 191

The so-called Pell Doctrine frequently is cited as the standard against which a disciplinary penalty imposed on a public employee by the appointing authority is to be measured.*

In Olavarria, the Appellate Division affirmed the imposition of the penalty of dismissal on a New York City police officer found guilty of a number of alleged acts of misconduct, including assault, insubordination, being discourteous to superior officers, violating an order of protection, and being asleep on duty.

Ruling that it found no basis to question the credibility of the findings underlying holding that Olavarria was guilty of these charges, the Appellate Division said the “Under the circumstances, the penalty of dismissal does not shock the judicial conscience,” citing another leading decision addressing the imposition of the “ultimate” administrative disciplinary penalty, -- dismissal. Harp v New York City Police Dept., 96 NY2d 892.

For the full text of this decision, go to:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/penalty-of-dismissal-sustained.html

* Pell v Board of Education, 34 NY2d 222, a disciplinary penalty imposed by an appointing authority will not be overturned unless the court finds that it is shocking to one's sense of fairness.

A coda to "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations"

A coda to "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations"

Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

“Important practice reminder

An important reminder that applies in most administrative jurisdictions: "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations", on the New York Public Personnel Law blog. Neither do settlement negotiations or even (sometimes) administrative appeals. And, as in the case discussed in [another post*], the statutes of limitations for judicial review of administrative decision are often very short (four months for a personnel decision in this case). In my practice days, one of the first research tasks I set myself when taking on an administrative matter was "how many days do I have to take this to the Court of Appeals if it goes south?" Or north, as the case may be. Just in case.

“And typically the S/L is measured from the promulgation of a "final" order. When is "final" in this context in this jurisdiction? Do you know?” 

* Dean Patty Salkin (Albany Law School) describes such a situation in "Fed. Dist. Court Prevents Performing Arts Center From Relocating to Dilapidated Historic Warehouse" on her Law of the Land blog: 

Edward M. McClure

Malpractice in disciplinary actions

Malpractice in disciplinary actions

Tinelli v Redl, CA2, 199 F.3d 603, Affd. 121 S.Ct. 47

After being found guilty of disciplinary charges, an individual decides to sue his or her attorney, contending that the lawyer’s action, or failure to act, in the disciplinary hearing or an appeal constituted malpractice.

In the Tinelli case, the U.S. Circuit Court of Appeals, Second Circuit considered such a malpractice claim. The decision sets out a test for determining if there is a basis for such an action against the attorney.

Joseph Tinelli was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. He retained an attorney, Frank Redl, to represent him in the matter. Following a two-day hearing, the hearing officer found Tinelli guilty of three charges of “misconduct and incompetence.”

The appointing authority adopted the findings of the hearing officer and imposed the penalty recommended by the hearing officer: termination.

Tinelli appealed. According to the decision, Redl failed to take any “further action ... after the initial filing of the petition for Tinelli’s appeal” in New York State Supreme Court. As a result, six months later Tinelli’s “appeal expired.”

Tinelli sued Redl, contending that the attorney’s (1) failure to perfect the Article 78 appeal and (2) his failure to ask the court for an extension of time to perfect the appeal, constituted malpractice.

He also charged that Redl’s performance at the administrative disciplinary hearing constituted malpractice.

The U.S. Circuit Court of Appeals decided that whether or not Redl’s handling the appeal constituted malpractice depended on whether or not Tinelli’s appeal would have been successful. In other words, if Tinelli would not have won the appeal regardless of the action or inaction of his attorney, there was no basis for holding the attorney liable for malpractice.

After reviewing the record, the circuit court said that “Tinelli’s appeal would not have succeeded because the hearing officer’s findings of misconduct and incompetence were supported by substantial evidence and because there was no abuse of discretion in recommending Tinelli’s termination under the circumstances.”

The court dismissed Tinelli’s claim, holding that his attorney could not be held liable for malpractice because he failed to perfect the appeal since Tinelli would not have been able to overturn either the administrative disciplinary determination or the penalty imposed.

As to Tinelli’s claim that “Redl’s poor performance at the administrative hearings constituted malpractice,” Redl’s motion for summary judgment dismissing this allegation was also granted.

Mandatory subjects of negotiations

Mandatory subjects of negotiations

Carmel PBA v PERB, 267 AD2d 858

The Carmel PBA case involves a “legal interpretation” made by the New York State Public Employment Relations Board [PERB].

The Appellate Division ruled that the administrative agency’s determination would be upheld if it is not affected by an error of law, is neither arbitrary nor capricious, and does not constitute abuse of discretion.

The case arose when PERB ruled that Town of Carmel’s changing an “early vacation procedure” was a nonmandatory subject of collective bargaining. The PBA challenged PERB’s decision, claiming that in addition to being arbitrary and capricious and against the substantial weight of the evidence, the ruling constituted “an error of law.”

Carmel had in place a scheme for selecting vacation to be taken during the year -- “vacation picks.” PBA members could select their vacation before the beginning of the year in which vacation time is to be taken (“early vacation picks”) or during the year prior to the taking of the requested vacation time (“later vacation picks”). In addition, a “minimum staffing level rule” required that at least four police officers be assigned to patrol shift.

The Town changed the “staffing” requirements to be observed in selecting vacations in October 1995. The new procedure:

1. Barred the “overlap of vacations” by police officers and sergeants on the same tour; and

2. If the department had only one lieutenant, the chief of police, lieutenant and/or sergeant could not “overlap [their respective] vacations.”

PBA filed an improper practice charge with PERB contending that the Town violated Section 209-a(1)(d) of the Civil Service Law when it unilaterally imposed the new policy.

Initially, PERB deferred its consideration of the charge because a grievance arbitration concerning the matter was pending.

The arbitrator ruled that the parties’ 1994 agreement’s provision concerning vacation selection did not apply after 1995. After the arbitrator’s issued the award, PERB accepted jurisdiction and addressed the merits of the PBA’s petition.

PERB decided that “the vacation selection procedure was necessarily and “inextricably entwined with the Town’s staffing determination.” This, it held, meant that it was not a mandatory subject of negotiation. The PBA appealed.

The Appellate Division commenced its review by pointing out that while “the refusal of public employers to negotiate in good faith with recognized employee organizations concerning the terms and conditions of employment constitutes an improper employment practice within the meaning of Section 209-a,” not all terms and conditions of employment are subject to mandatory negotiation.

What is a mandatory subject of collective bargaining?

The court said that PERB has the authority to make this determination and so long as its “interpretation is legally permissible and * * * there is no breach of constitutional rights and protections, the courts have no power to substitute another interpretation.”

Accordingly, said the court, PERB’s determination that the Town’s policy prohibiting certain overlaps of vacation was not a mandatory subject of collective bargaining under the Taylor Law must be confirmed.

In explaining its ruling the Appellate Division cited International Assn. of Firefighters of City of Newburgh, Local 589 v Helsby, 59 AD2d 342, 345, leave to appeal denied, 43 NY2d 649.

In that decision the court held that the number of employees the municipality will hire “is clearly a basic policy decision to be made solely by the municipal governing body as to the allocation of its resources and the extent and quality of fire protection to be provided by the [municipality] for its citizenry.”

How does this impact on the PBA’s claim that the Town should be required to negotiate the policy change? The Appellate Division’s answer:

Since the Town’s determination to increase its minimum staffing level is clearly a basic policy question for it to make, to hold that here is a duty to bargain the early approval of overlapping vacations is incompatible with the Town’s managerial prerogative to set and change minimum staffing levels at the employer’s discretion.

Finding that PERB’s decision was not arbitrary or capricious or based on an error of law, the Appellate Division dismissed the PBA’s appeal.

A postscript to "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual"

A postscript to "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual" [See: http://publicpersonnellaw.blogspot.com/2011/04/doctrine-of-estoppel-not-available-to.html ]

Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

"In his New York Public Personnel Law blog, Harvey Randall reviews a case involving one kind of administrative law issue that often darkens an attorney's door: The government has given your client something by mistake and now intends to take it back. But your client, ignorant of the error, has spent the money or made plans or persuaded investors or otherwise reasonably relied on the erroneous decision and doesn't want to pay it back, change plans, return investments, or otherwise reverse course. In the case discussed by Mr. Randall in "Doctrine of Estoppel not available to bar an administrative action to correct an error notwithstanding its adverse impact on the individual", a retired city government lawyer finds out seven years after retirement that she has been overpaid almost $1000 per month, and the New York City Employees' Retirement System is going to deduct 25% of her (reduced) pension until it is repaid. She has spent the money and made all sorts of plans that depend on the original monthly payment. Sounds like a job for Equitable Estoppel!

"Not. The opinion from the reviewing court cites to a lot of state precedent, but doesn't really get to the meat of the law here. The City is relying on a N.Y. statute:

"Should any change or error in records result in any member or beneficiary receiving from the retirement system more or less than he or she would have been entitled to receive otherwise, on the discovery of any such error such Board shall correct such error, and as far as practicable, shall adjust the payments in such a manner that the actuarial equivalent of the benefit to which he or she was entitled shall be paid.

"New York City Administrative Code §13-182 (emphasis added).

"According to Mr. Randall:

"Accordingly, in the event an overpayment is made, the agency has authority to recoup the overpayment by withholding or reducing the current pension benefits to which the retiree would otherwise be entitled. As to applying the doctrine of estoppel in this case, Judge Mendez ruled that the doctrine could only be applied against a governmental entity if failure to apply the doctrine would defeat a right legally and rightfully obtained.

"Not just the authority to recoup the overpayment, but the obligation to recoup the overpayment. The court's opinion does not explain the law behind why estoppel fails in this case, but we can look at what is sometimes termed the first maxim of equity: "Aequitas sequiture legem" - "equity follows the law". 30A C.J.S. Equity § 128 (updated March 2011); Story, Joseph. Commentaries on equity jurisprudence: as administered in England and America (Boston, 1836), §64. This maxim means different things in different contexts. For our purposes in this case, equity will not contradict a statute or common law rule on point (subject to a bunch of exceptions that rarely apply against governments and that don't apply here). Here we have a statutory - a legal - requirement that the City get the money back.

"I'm sorry but your client is, ummmm, going to be disappointed."

EMM