Concerning disciplinary action in situations where a disability may be a consideration

Concerning disciplinary action in situations where a disability may be a consideration

Matter of Schlitz v Cavanagh, 14 Misc.3d 1213

The significant issue in the Schlitz case concerned the interplay of two different provisions of the Civil Service Law: serving disciplinary charges against an individual pursuant to Section 75 and Section 72, which is triggered, in cases of an employee’s inability to perform the duties of the position because of non-work related disease or disability.

Essentially Section 72 provides for the placement of an employee on a leave because of a disability, other than a disability resulting from an occupational injury or disease, in the event it is determined that he or she is unable to perform the duties of the position satisfactorily because of that disability.

In Penebre v Dzaluk, 51 AD2d 574, the Appellate Division ruled that §75 charges for misconduct should not have been served on a police officer but that the employer should have proceeded under §72, Ordinary Disability Leave instead. Penebre, said the court, “had performed successfully as a police officer for 13 years before his behavior markedly changed.” He became depressed and inattentive. Under these circumstances, the Appellate Division said that serving Penebre with §75 charges for misconduct was misplaced.

Schlitz also was served with disciplinary charges pursuant to Section 75. Before the conclusion of the disciplinary hearing, however, Schlitz was placed on Section 72 -- non-occupational disability leave -- from his position.

A physician was employed by the Town and asked to determine whether or not Schlitz was suffering from a mental health issue that affected his ability to perform his duties satisfactorily. The physician’s opinion, “given within a reasonable degree of medical certainty,” was that "any past misbehavior on the part of Mr. Schlitz would not have been because of a psychiatric condition."

Ultimately, Schlitz was found guilty of various instances of misconduct and the penalty imposed was demotion.

Schlitz appealed but withdrew his claim regarding the Section 75 determination by conceding that there was substantial evidence to justify the findings of misconduct and the penalty imposed. Instead, Schlitz contended that the Town knew that he was suffering from depression and that the filing disciplinary charges against him under these circumstances amounted to unlawful workplace discrimination against a person with a disability.

In addition, Schlitz argued that his employer was required to present the evidence of his depression in the §75 hearing as a defense or in mitigation of the misconduct charges.

Justice Mayer found that Town was within its rights to conduct the §72 proceeding and suspend the §75 hearing pending the results of Schlitz’s medical evaluation. Further, said the court, once the Town had evidence that the misconduct alleged in the §75 charges and specifications were not due to mental disability, it had the right to move forward under §75.

As to Schlitz’s claim that he was the victim of “unlawful workplace discrimination against a person with a disability,” the court said that the medical evidence in this case was that Schlitz’s acts of misbehavior were not caused by a psychiatric condition. Justice Mayer held that “there is no admissible proof that the petitioner is, or ever was, mentally disabled, and the claim of workplace discrimination perpetrated by the Town by bringing the charges of misconduct against an allegedly disabled person is, therefore, without merit.”

In contrast to discipline/termination procedures, the basic concept underlying the use of Section 72 in disability related situations is the separation/rehabilitation/reinstatement of the employee.

Section 72.1 sets out the procedures to be followed by the appointing authority before an employee may be placed on leave for ordinary disability involuntarily.

Section 72.3 describes the appeal procedures, including recourse to the courts pursuant to Article 78 of the Civil Practice Law and Rules, available to an individual involuntarily placed on disability leave following a Section 72.1 hearing.

Section 72.5 provides an exception to the basic requirement that a Section 72.1 hearing must be concluded before the employee may be placed on Section 72 disability leave involuntarily based on the appointing officer determination that there is a "potential danger" if the employee is permitted to continue on the job.

Daubman v Nassau County Civil Service Commission, 601 NYS2d 14, notes that §50.4(b) of the Civil Service Law allows a civil service commission to disqualify an individual for appointment if the applicant or appointee "is found to have a disability which renders him or her unfit to perform in a reasonable manner the duties of the position in which he or she seeks employment, or which may reasonably be expected to render him or her unfit to continue to perform in a reasonable manner the duties of the position...."

The Daubman decision suggests that a civil service commission should consider the standards imposed by the State's Human Rights Law in determining whether an individual should be disqualified because of a "disability."

Violating workplace rules may disqualify dismissed individual for unemployment insurance benefits

Violating workplace rules may disqualify dismissed individual for unemployment insurance benefits

Smith v Commissioner of Labor, 296 AD2d 803

Violating the employer's policy or work rules concerning sexual harassment may result in the termination of the employee. It may also disqualify the individual for unemployment insurance benefits.

The Appellate Division, Third Department, said that it is clear that an employee who is terminated because he or she "knowing" violated his or her employer's established policy or workplace rules may have been dismissed for "disqualifying misconduct" for the purposes of his or her eligibility for unemployment insurance benefits is concerned. In the Smith case, the Appellate Division, citing the Campbell decision, [In Re Campbell, 271 AD2d 787], demonstrated this principle in a case involving an employee's termination for violating the employer's policy prohibiting sexual harassment.

William F. Smith was fired for violating his employer's policy prohibiting its employees from "sending inappropriate communications by e-mail." When his application for unemployment insurance benefits was rejected by the Unemployment Insurance Appeals Board, Smith sued.

According to the evidence introduced in the course of an unemployment insurance administrative hearing, Smith had sent "questionable e-mail" to his co-employees to notify them of a meeting with the subject line reading "NUDE PICTURES - NUDE PICTURES". Smith's explanation for this: he had used the phrase as a means of gaining the attention of his readers.

About a year later Smith was fired following his sending an e-mail to his co-employees containing a list of "Top Ten" sayings at second jobs. One of the sayings listed by Smith: "Another table dance?"

At the unemployment insurance hearing, Smith's supervisor testified that after this episode he told Smith that "that this language violated the employer's policy against sexual harassment and the misuse of electronic communications." The supervisor also testified that he had told Smith that his repeating such inappropriate conduct would be severely sanctioned. Smith testified at the hearing that he had never received any such warning.

The Appellate Division sustained the Unemployment Insurance Appeals Board's decision that Smith had lost his employment under disqualifying circumstances -- i.e., he lost his employment due to his misconduct.

The court said that there was substantial evidence in the record to sustain the Board's determination and any issue concerning the credibility of the testimony of witness was for the Board to resolve.

Withholding a public employee’s salary increase

Withholding a public employee’s salary increase

Mukhopadhyay v City of New York, 296 A.D.2d 363

An employer tells an employee that he or she will not be given an "annual increment" or other form of a salary advancement or increase. Does this constitute disciplinary action, triggering the employee's right to a pre-determination "notice and hearing?" This was the significant issue in the Mukhopadhyay case.

When the City of New York decided not to award Bimal Mukhopadhyay "a managerial pay increase," Mukhopadhyay sued, contending that he was entitled to a "pre-determination" hearing pursuant to Section 75 of the Civil Service Law.

The Appellate Division rejected Mukhopadhyay's theory that the denial of his "managerial pay increase" by his employer constituted a disciplinary action, finding that:Since Mukhopadhyay had not been demoted, dismissed or otherwise subjected to disciplinary action, his claim that he was entitled to a pre-determination hearing pursuant to Civil Service Law §75(1) is incorrect. 

This ruling is consistent with the Rules of the New York State Civil Service Commission providing for the annual performance rating of certain individuals employed by the State as an employer [4 NYCRR 35].

4 NYCRR 35 requires that appointing authorities prepare an annual summary judgment - satisfactory or unsatisfactory -- of each employee's performance and conduct. This evaluation is then used to determine the individual's eligibility for any annual salary increment otherwise payable and eligibility for promotion. 

In addition, 4 NYCRR 35 requires the appointing authority to notify each of its employees in the competitive and noncompetitive classes of his or her performance rating, provide the employee an opportunity to review his or her rating with the individual's supervisor, and give to each employee whose performance is rated as unsatisfactory a copy of the rating. 

The Rule states that: Any annual salary increment to which an employee who has been rated unsatisfactory is otherwise entitled is to be withheld.

Although the 4 NYCRR 35 describes procedures for appealing an unsatisfactory performance evaluation, nothing in the Rule suggests that such an evaluation is disciplinary in nature and thus it does not seem that an unsatisfactory performance rating should be subject to notice and hearing requirements set out in Section 75.

Provisions similar to 4 NYCRR 35 have been adopted by a number of municipal civil service 

Article 78 action initiated before the arbitration award was promulgated

Article 78 action initiated before the arbitration award was promulgated

Jenkins v New York City Dept. of Education, 88 AD3 600

Antonio J. Jenkins, acting as his own attorney, challenged a §3020-a arbitrator’s determination finding him guilty of certain disciplinary charges.

Supreme Court denied Jenkins’ motion to restore the petition that Jenkins had earlier filed to the calendar and granted the New York City Department of Education's motion to dismiss his petition. 

Supreme Court ruled that Jenkins’ actions was time-barred because he did not file his appeal within 10 days of the arbitrator's determination as required by Education Law §3020-a(5).”

The Appellate Division reversed the lower court’s ruling, holding that Jenkins, having filed a petition in Supreme Court “before the arbitrator's ruling was issued” resulted in the appeal being timely for the purposes of §3020-a(5).

The court said that the lower court should have converted  “the instant action to an Article 75 proceeding and to consider the Department’s alternative bases for dismissal” rather than to have, as it did, dismissed Jenkins’ petition in its entirety.

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2011/2011_07503.htm

Employee must resign “for good cause” to qualify for unemployment insurance benefits

Employee must resign “for good cause” to qualify for unemployment insurance benefits

Quintana v NYC Police Department, 297 A.D.2d 857

New York City probationary police officer Miguel A. Quintana, a Bronx resident, was assigned to attend a training program at the police academy in Manhattan. This required Quintana to commute by subway from his home in the Bronx. Quintana said that because he wore his police uniform while traveling to and from the police academy, he became the target of negative comments and gestures from other commuters because of his employment as a police officer.

Claiming that these comments and gestures, together with the fact that a member of the police academy's faculty had attempted suicide, caused him to realize that a career as a police officer "isn't for me...." Quintana resigned from his position.

When Quintana applied for unemployment insurance benefits, the Unemployment Insurance Appeal Board ruled that he was disqualified from receiving benefits "because he voluntarily left his employment without good cause."

The Appellate Division, Third Department, affirmed the Board's determination, commenting that there was substantial evidence to support the Unemployment Insurance Appeal Board's finding that Quintana was disqualified from receiving unemployment insurance benefits "because the reasons for his resignation were personal and noncompelling."

The court pointed out that although apprehension for one's physical safety may constitute good cause for leaving employment in some instances, the record in this matter does not justify such a conclusion.

In addition, the Appellate Division pointed out that there was no medical evidence supporting Quintana's contention that "job-related stress" compelled him to resign from his position as a probationary police officer.

Due process and dismissal from office

Due process and dismissal from office

Mtr. of Gill, Decisions of the Commissioner of Education, 14,785

The decision by the Commissioner of Education in the Gill case explains the rights of a member of a school board and the procedures to be followed in the event a school board decides to remove one of its members from office.

The Wyandanch Union Free School District Board of Education voted to remove one of its board members, Andrew Gill, from office because of his alleged "official misconduct1."* According to the Commissioner's ruling, to constitute grounds for removal pursuant to Section 1709(18), the "official misconduct" must clearly relate to a board member's performance of official duties, either because of the allegedly unauthorized exercise of the member's powers or the board member’s intentional failure to exercise those powers to the detriment of the school district

Among the charges filed against Gill were the following:

1. Gill disrupted board meetings;

2. Gill falsely stated that the roof of a school building was in danger of falling down in an interview to be aired on television;

3.Gill, while representing that he was acting on behalf of the board, threatened to use physical force and used obscene language against a taxpayer; and

4. Gill asked a parent to bring false charges of sexual misconduct against a district employee.

In the course of the proceedings, Gill and his attorney left the hearing. The board continued the hearing "in absentia," presenting "the remainder of its proof in [Gill's] absence."** Following this, the board deliberated, found Gill guilty of a number of the charges and then voted to remove him for official misconduct. Gill appealed his removal from the Board, contending that he was denied due process.

In his appeal to the Commissioner, Gill argued, among other things, that the board did not respond to his "discovery demands" and otherwise acted to frustrate his right to administrative due process. Addressing this aspect of his appeal, the Commissioner said Gill cited no statutory or constitutional right to formal discovery in a removal proceeding conducted pursuant to Section 1709(18).*** 

In the words of the Commissioner: As long as [Gill] receive adequate notice of the charges, due process is served. 

The board, on the other hand, contented that it had provided Gill with a full and fair hearing consistent with his right to administrative due process and that it had properly removed from office after finding him guilty of official misconduct. The board also argued that Gill could have attempted to refute the charges at the hearing but elected to voluntarily absent himself from the proceeding.

The Commissioner sustained the board decision to remove Gill from office. He said that Section 1709(18) permits the board of education of a union free school district, among other things, "[t]o remove any member of their board for official misconduct."

The individual whom the board seeks to remove must be served with written charges at least ten days before the hearing and the individual must be "allowed a full and fair opportunity to refute such charges before removal." The Commissioner concluded that "[o]n the record before me, I find that [Gill was] afforded sufficient due process to satisfy this standard.

The Commissioner also found that Gill was given "a full and fair opportunity to refute the charges" as well as the opportunity to cross-examine the witnesses, examine the board's documentary evidence, and introduce his own documentary evidence.

In response to Gill's argument that he did not an opportunity to question a number of the witnesses who testified, the Commissioner said that Gill did have such an opportunity but "but voluntarily forfeited it by leaving the hearing under protest." The Commissioner also found that there was nothing in the record to justify Gill's electing to leave the proceeding.

Based on the totality of the circumstances, the Commissioner said that he did not find the board's removal of Gill for official misconduct to be improper and directed the board to appoint a successor trustee to replace petitioner Gill.

Another issue raised by Gill concerned his allegation that the hearing was "improperly conducted in executive session" in violation of the Open Meetings Law. The Commissioner said that the court has exclusive jurisdiction over complaints alleging violations of the Open Meetings Law and thus such complaints may not be adjudicated in an appeal to the Commissioner.

Finally, there was a recusal issue with respect to one of the board member's participation in the hearing and adjudication process involving Burnett. The Commissioner that it was improper for Wyandanch board member Rodney Bordeaux to consider the charges filed against Burnett.

According to the decision, Bordeaux was facing criminal charges of assaulting Burnett at the time of the hearing. 

The pendency of these charges, said the Commissioner, is a sufficient basis for someone to conclude that Bordeaux was likely to have some bias insofar as Burnett was concerned. Accordingly, noted the Commissioner, Bordeaux should have disqualified himself from participating in the determination of the charges filed against Burnett. In effect, the Commissioner cautioned that it is important to avoid even the appearance of bias in such a situation.

* Samuel Burnett, another trustee, was served with similar charges, found guilty of official misconduct and removed from office. On appeal, which was consolidated with the Gill appeal, [Decisions of the Commissioner 14,785] the Commissioner found that although there was proof sufficient to find Burnett guilty of some of the charges filed against him, the Commissioner did not find sufficient proof to establish grounds to justify Burnett's removal from office for "official misconduct." He directed that Burnett be reinstated to his position with the board.

** From time to time an individual may decline to participate in a disciplinary hearing being conducted pursuant to Section 75 of the Civil Service Law or some similar statute. It is well settled that in the event the employee fails to appear at the disciplinary hearing, the charging party must proceed and actually hold the hearing in absentia rather than merely proceed with the imposition of a penalty on the individual on the basis of his or her failure to appear at the hearing as scheduled 

*** Sometimes an individual will demand "a bill of particulars" requiring the appointing authority to set out the charges and specifications filed against the individual in greater detail. Although Education Law Section 3020-a.3c(iii)(C) provides an administrator or teacher with the right to demand a "bill of particulars" concerning the charges and specifications filed against him or her, no similar provision is included in Section 75 of the Civil Service Law. In some instances a Taylor Law agreement will contain a provision allowing the employee to demand a “bill of particulars” in the course of a disciplinary action.

Random search and employee privacy

Random search and employee privacy

US v Gonzales, CA9, 01-30059

May a government employee be required to submit to a random search by his or her employer and under what circumstances? These were the major issues in the Gonzales case. 

In the view the U.S. Circuit Court of Appeals, Ninth Circuit, government employees may be subjected to searches by a government employer, but the court must consider the strength of the employee's reasonable expectation of privacy, the justification for the government employer's search, and the scope of the search as it relates to the justification for the search, in order to determine whether the search is reasonable.

Alexander Gonzales was employed at a "post store" on a federal Air Force base. He was the target of a random search of employees as he left the store when a store detective asked him to let her look in his backpack. The store detective had no individualized suspicion that Mr. Gonzalez was stealing anything.

The store detective found four packages of spark plugs worth $3.75 each in the backpack. Although Gonzales told the store detective that he had purchased the spark plugs elsewhere, he ultimately pleaded guilty to larceny, reserving for appeal the district court's denial of his motion to suppress the evidence found in his backpack on the theory that it was the fruit of an unlawful search conducted in violation of the Fourth Amendment.

The Circuit Court said that, in the context of this case, the following applied:

1. The search was random, not based on individualized suspicion, for the purpose of deterring theft and apprehending employees who stole store items and was conducted pursuant to an established policy of the store.

2. Gonzalez signed or initialed a statement that store employees were subject to random searches when he started work and that he knew such random searches were store policy.

3. Although individuals do not lose Fourth Amendment rights merely because they work for the government instead of a private employer, government employees' expectations of privacy at the workplace may be "reduced by virtue of actual office practices and procedures."

4. The government employer did not need probable cause to believe that an employee was stealing, but its search had to conform to the test of reasonableness.

Thus, said the court, Gonzalez's "expectation of privacy" was limited by his knowledge of the store's policy of searching its employees' belongings to deter theft and to apprehend thieves.

There are, said the court, still two test that must be satisfied in this type of situation in order to hold that the search was justified at its inception.

The first test applied by the court: Was there a legitimate reason for the search?

In this instance, the court ruled that "Prevention of theft is a legitimate justification for a search. It's hard to run a store if the employees walk out with the inventory."

The second test: Was the "search as actually conducted was reasonably related in scope to the circumstances which justified the interference."

As to this second test, the court said that unless there is evidence that the search went beyond the scope of its justification, there is no basis to conclude that such a search went beyond what was reasonable.

The Circuit Court concluded that an employer is entitled to search an employee for stolen merchandise, even though the search was on a random basis without reasonable suspicion, but only if the individual had clear notice before he or she ever came to work that he or she would be subject to just such a search, and the search did not go beyond the scope appropriate to looking for stolen merchandise.

In contrast, the Circuit Court observed that "[a]n employee on his first day who had not yet signed or learned of the store policy, let alone a customer who neither knew of nor consented to any policy of random searches, might be in a much stronger position to have a reasonable expectation of privacy deserving protection from such searches...." 

Exceptions to dismissal of improper practice charge must be timely served

Exceptions to dismissal of improper practice charge must be timely served
Mtr. of Fern Rudin-Moore and DC-37, PERB Case U-25423

The Board affirmed the Decision of the ALJ dismissing Rudin-Moore's improper practice charge alleging that DC-37 violated §209-a.2(c) of the Act, when a DC-37 representative failed to respond to her inquiries regarding the status of a grievance that she had asked him to file on her behalf. The Board dismissed the exceptions on procedural grounds, finding that they had not been timely served on the other parties. Rudin-Moore filed exceptions with the Board on February 6, 2006, however, her exceptions were never served on either DC-37 or the District. 

Failure to follow administrative procedures precludes judicial review

Failure to follow administrative procedures precludes judicial review

Miller v Nassau County, 297 A.D.2d 344

The Appellate Division, Second Department, dismissed the appeal filed by Benjetta Miller in her attempt to obtain judicial review of Nassau County's placing her and a number of other employees in positions at a "lower salary line."

The Miller ruling illustrates the difficulties confronting an individual seeking a court review of an administrative action if he or she fails to follow the controlling administrative or statutory procedures.

In Miller's case, the Appellate Division found that there were two problems that barred the courts from assuming jurisdiction to review Nassau's placing her on a "lower salary line":

1. Miller failed to exhaust her administrative remedies under the parties' collective bargaining agreement -- i.e., she failed to file a timely grievance; and

2. To the extent that the Miller's claims fall outside of the scope of the collective bargaining agreement, she failed to serve a notice of claim on the County as required by Section 50-e(1)(a) of the General Municipal Law. 

Concerning individuals subject to financial disclosure

Concerning individuals subject to financial disclosure

Suffolk County Ethics Commission v Neppell, 307 AD2d 961

When the Suffolk County Ethics Commission [SCEC] asked Thomas M. Neppell, Jr., the chair of the Brookhaven Town Republican Committee, to file a financial disclosure form with the SCEC pursuant to Section A30-10 of the Suffolk County Charter, Neppell refused to do so, contending that he was neither a county officer nor a county employee.

SCEC sued Neppell, contending that because he was an officer of a political party officer, the County Charter required him to file a financial disclosure with it.

Noting that Suffolk County's Code Section A30-10A(1), Financial Disclosure provides in part that:

Every candidate for countywide elected office or for member of the County Legislature and every political party officer shall file with the Suffolk County Ethics Commission an annual statement of financial disclosure containing the information and in the form set forth in Chapter 61 of the Suffolk County Code.

Justice Doyle said that although Neppell argues he is not an employee of the County of Suffolk and thus he is not required to file a financial disclosure form, his argument must fail.

Why? Because, the court explained, General Municipal Law Section [GML] 811(1)(b) clearly authorizes municipalities to require financial disclosure from "local political party officials" as if such officials were officers or employees of such county, city, town or village...."

As the County's Code Sections A30-8(c) A30-10A(1) "appropriately dovetail with and mirror" the relevant section of the GML and as Suffolk County "has appropriately chosen to exercise the power to require the completion and filing of the annual statement of financial disclosure" by a local political party official as if he were an officer or employee of the County of Suffolk, Neppell was required to file because:

The Suffolk County Ethics Commission has captured the spirit and intent and the worthy objective of General Municipal Law Section 800 et seq. that is honesty in government, in formulating its local laws with regard to financial disclosure, in a format harmonious and consistent with state law.

Justice Doyle concluded that Neppell, as Chairman of the Brookhaven Town Republican Committee, "is a political party officer (as defined in Section A30-8 of the Suffolk County Charter) and is required to file a financial disclosure form with the Commission ...."

[Click on http://longisland.newsday.com/data/pdfs/levy/Memo%20on%20Financial%20Disclosure%20requirements%20from%20Ed%20Dumas.pdf for a recent statement concerning financial disclosure by the Nassau County Chief Deputy County Executive.]

Free speech and whistle blowing

Free speech and whistle blowing

Brochu v City of Riviera Beach, 304 F.3d. 1144

The Brochu case interweaves allegations of the suppression of free speech, whistle blowing and retaliation into its fabric.

Steven Lobeck, a City of Riviera Beach police officer, sued the City police department for alleged reverse race discrimination in imposing discipline.

Subsequently, Edward Brochu, another City of Riviera Beach police officer sued the City alleging it had violated Title VII by retaliating against him because he testified against the City in the Lobeck litigation. As an example of such retaliation, Brochu alleged that he was transferred to a less desirable assignment, with significant changes in job duties and responsibilities.

Brochu also sued the City pursuant to 42 USC 1983, claiming that the City had violated his First Amendment rights to free speech because:

1.It had engaged in a pattern and practice of retaliating against employees who exercise their First Amendment rights; 

2.He had responded to a request to participate in an investigation into the City police department by the FBI; 

3.He had actively participated in the election campaigns of various reform candidates for the city council who had made campaign promises to clean up problems in the police department during his "off-hours;" and, 

4.He had met with others to discuss the problems in the police department and to formulate potential solutions.

Brochu alleged that his participation in "these anti-corruption activities" resulted in his being placed on administrative leave and his being subjected to conditions that were so intolerable that he had to resign from his position under circumstances that amounted to constructive discharge.

The jury awarded Brochu $2,000,finding that the City had retaliated against him for engaging in conduct protected by Title VII. Further, the jury awarded him an additional $450,000.00 on his First Amendment claim, finding that protected speech activity was a substantial and motivating factor for the City's decision to place him on administrative leave, an action that amounted to a constructive discharge.

The Circuit Court vacated the jury's determination, holding that Brochu did not prove his 42 USC 1983 claim because he was put on administrative leave for a valid reason that had nothing to do with any speech protected by the First Amendment.

Citing Rankin v McPherson, 483 US 378, the Circuit Court said that "[a]lthough it is well-established that an employer may not discharge a public employee in retaliation for the employee's exercise of his right to freedom of speech, that right is not absolute.

In such a type of case, said the court, "[t]he problem ... is to arrive at a balance between the interests of the [employee] as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in promoting the efficiency of the public services it performs through its employees," quoting from Pickering v Board of Education, 391 US 563.

In the words of the Circuit Court:

We have no problem concluding that, under the case law, "speech activity concerning corruption and mismanagement of [a] Police Department and/or . . .support [of] candidates for the City Council" might be a matter of public concern. In this case, however, Brochu was not not merely "commenting upon matters of public concern," i.e., the alleged ineptitude of his superiors and/or the alleged corruption in the police department, nor was he merely publicly campaigning in favor of candidates he felt would support a reform agenda. Rather, he was a major player in the creation and dissemination of a virtually secret plan to overthrow the existing police administration and put himself and his friends in charge.

This, said the court, "was not the sort of public speech activity engaged in by an employee as a citizen who is protected by the First Amendment. This was back-room maneuvering by an employee as an employee which, even if tangentially related to the political process in Riviera Beach and even if motivated by a sincere desire to reform the police department, is not the sort of public discourse which the First Amendment was intended to protect."

The Circuit Court observed that if creating and disseminating such an overthrow plan somehow constituted protected speech, the issue was whether a First Amendment right to participate in that activity was outweighed by the employer's interests under the facts of this case. The court's conclusion:

A Pickering balancing analysis weighing Brochu's interest in engaging in protected activities against his employer's interest in "promoting the efficiency of the public services it performs through its employees" demonstrates that the City would have been entitled to judgment as a matter of law.

Why? Because, the court explained, "[a] police officer is considered "part of a quasi-military organization [and] [i]n a law enforcement agency, there is a heightened need for order, loyalty, morale and harmony, which affords a police department more latitude in responding to the speech of its officers than other government employers."

The Circuit Court concluded that "the secret plan created by Brochu was simply not protected speech activity [but] even if it were, its potential to cause havoc in the police department would ... definitively tip the Pickering balance in favor of the City."

The Circuit Court held that Riviera Beach was entitled to judgment as a matter of law and it was reversible error for the district court not to have granted that motion.

The Doctrine of Legislative Equivalency

The Doctrine of Legislative Equivalency

Babor v Nassau County Civil Service Commission, 297 A.D.2d 342

The doctrine of legislative equivalency, applied by the Court of Appeals in deciding the Torre case [Torre v County of Nassau, 86 NY2d 421, was also a key factor in the Babor case. The doctrine sets out the principle that a position created by a legislative act can be abolished only by a correlative legislative act. The Babor case concerned the abolishment of a number of positions by the Nassau County Commissioner of Health.

Marguerite Babor served as a Nassau County public health administrator. When the Nassau County Board of Supervisors adopted a budget reducing the Health Department's 1992 appropriation more than 20% below its appropriation for 1991, positions encumbered by Babor and other public health employees were abolished. This resulted in a number of layoffs.

Babor and other individuals sued the County and the Nassau County Civil Service Commission contending that their former positions had been abolished in bad faith. They also argued that their layoffs were in violation of Section 61.2 of the Civil Service Law as other employees were required to perform their former duties as "out-of-title" work.

Finally, they contended that the abolishment of their former positions violated the doctrine of legislative equivalency as only the legislature, which they claimed created their positions, could direct that they be abolished. In other words, they argued, a county administrator may not unilaterally abolish a position created by the legislature.

Supreme Court, Nassau County granted the County's motion for summary judgment and dismissed Babor's petition. The Appellate Division reversed that part of the Supreme Court's dismissal rejecting Babor's argument based on the doctrine of legislative equivalency and remitted the case to the lower court.

The Appellate Division said that while, on it face, Babor's petition presents an issue as to whether the doctrine of legislative equivalency was violated, the parties provide different interpretations of the documentary evidence relevant to making a determination concerning the issue. Therefore, said the court, the Supreme Court must resolve this aspect of the case. Accordingly, summarily dismissing this branch of their claim was improper and a trial was required to resolve the issues of fact involved.

In contrast, the Appellate Division ruled that the Supreme Court "properly dismissed" Babor's petition insofar as she sought reinstatement to her position based on allegations that the County acted in bad faith and violated Section 61.2 of the Civil Service Law by assigning out-of-title work to other employees. With respect to these aspects of Babor's petition the Appellate Division concluded that:

The County established its entitlement to summary judgment with respect to those claims, and [Babor] failed to present evidence sufficient to raise any triable issues of fact.

Refusal to administer civil service test to an applicant during pending litigation violated the individual’s First Amendment rights

Refusal to administer civil service test to an applicant during pending litigation violated the individual’s First Amendment rights

Lathrop v Onondaga County, USDC NDNY, 220 F. Supp. 2d 129

Charlene Lathrop enrolled in the Central New York Police Academy in 1997. She completed all of the course requirements except the "defensive tactics" portion of the program successfully. After she failed a "retest" for defensive tactics, the Academy told her she could be again retested within a year of her provisional appointment as a police officer with the Village of Marcellus.

Lathrop, however, had filed a human rights complaint against the Academy alleging discrimination because of her gender. Following its receipt of the complaint, the Academy's offer to again retest Lathrop was withdrawn by its director. Although Lathrop subsequently passed the defensive tactics portion of her training requirement, the State Division of Criminal Justice Services refused to certify her as a police officer because she had not passed the test within one year of her appointment to her police officer position.

Chief JudgeScullin ordered the Division to certify Lathrop as qualified for appointment as a police officer. Judge Scullin held that Lathrop's First Amendment rights were violated as a result of being denied any retest opportunities during the relevant year qualifying period in retaliation for her having filed a civil rights complaint against the Academy. In effect, said the court, the State refused to certify a police officer candidate who had not completed her testing within the required time period because it barred her from taking the test while her gender discrimination claim was pending.

Significantly, the decision notes that the Academy director had told Lathrop that she would not be tested because of the pending litigation she had initiated. This, in itself, said Judge Scullin, constituted a violation of Lathrop's First Amendment rights.

Further, the court noted that any delay in Lathrop's becoming fully qualified for employment as a police officer resulted from actions taken by the Academy rather than because of failure on her part to satisfy its requirements.

The relief directed by Judge Scullin: DCJS was ordered to issue a "certificate of completion" to Lathrop certifying that she had completed the basic course required for appointment as a police officer and thus met this requirement for such employment.

Emergency Rule filed by the New York State Department of Civil Service changes the ratio of the State and the State employee and State retirees contributions for health insurance premiums

Emergency Rule filed by the New York State Department of Civil Service changes the ratio of the State and the State employee and State retirees contributions for health insurance premiums

Source: “Provision of the Health Benefit Plan for Active and Retired New York State Employees,” Item CVS411100007E; State Register dated October 12, 2011

§167.1(a) of the Civil Service Law provides that the State is to pay 90 percent of the health insurance premium for individual coverage and 75 percent of the premium for dependent coverage. The Department of Civil Service has promulgated an Emergency Rule changing the ratio of the “employer/employee” contributions for health insurance for active and retired New York State Employees effective September 27, 2011 requiring active and retired individuals to pay a greater portion of the premium for their health insurance than is now set by law.

On October 20, 2011 the Retired Public Employees Association wrote NYS Civil Service Commission President Patricia Hite objecting to this emergency rule insofar as it changed the ratios of the “employer-retiree” contribution for health insurance premiums for now retired State employees and their dependents from those set out in §167.1(a) of the Civil Service Law.

RPEA contends that “Except as otherwise provided by an agreement between the State and an employee organization entered into pursuant to Article fourteen of the Civil Service Law [the Taylor Law], §167.1(a) requires the State to contribute nine-tenths of the cost of premiums or subscription charges for health insurance coverage of each such State employee or retired State employee and three-quarters of the cost of premium or subscription charges for the coverage of dependents of such State employees and retired State employee except as otherwise provided by §167.1(a).” No such agreement covers retired employees of the State as an employer.

The letter notes that §167.1(a) of the Civil Service Law has not been amended and that “It is well-settled that a State regulation should be upheld [only] if it has a rational basis and is not … contrary to the statute under which it was promulgated,” citing Kuppersmith v Dowling, 93 NY2d 90 [emphasis in the original].

RPEA points out that the Emergency Rule is “is contrary to the statute under which it was promulgated” because §167.1(a) currently provides that the State as the employer shall pay 90% of the health insurance premium for individual health insurance coverage and 75% of the health insurance premium for dependent health insurance coverage on behalf of its retirees.

In contrast, the Emergency Rule, in pertinent part, provides that with respect to State retirees who retired on or after January 1, 1983 and current employees of the State retiring prior to January 1, 2012, the State will contribute 88 percent of the premium for individual health insurance coverage and 73 percent of the premium for dependent coverage.

As to employees retiring on or after January 1, 2012 from a title allocated or equated to salary grade 9 or below, the Emergency Rule provides that the State will contribute 88 percent of the premium for individual coverage and 73 percent of the premium for dependent coverage while for employees retiring on or after January 1, 2012 from a title allocated or equated to salary grade 10 or above, the Emergency Rule provides that the State will contribute 84 percent of the premium for individual coverage and 69 percent of the premium for dependent coverage.

The full text of RPEA’s October 20, 2011 letter to President Hite is posted on the Internet at:

http://rpea.org/documents/commentsobjectEmergRule-10-20-11-2.pdf

Personal interests not protected by the Taylor Law

Personal interests not protected by the Taylor Law

Westhampton Beach Police PBA and Village of Westhampton Beach, 35 PERB 3026

An employee making complaints unrelated to any specific provision in the collective bargaining agreement and that essentially concern matters of private, personal interest, has not established any basis for prosecuting a claim that he or she was subjected to adverse personnel action because of his or her engaging in a protected activity within the meaning of the Taylor Law.