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

August 09, 2012

Estoppel is not available against an administrative agency for the purpose of ratifying an administrative error


Estoppel is not available against an administrative agency for the purpose of ratifying an administrative error
Appeal of Jennifer Geiger, Decisions of the Commissioner of Education, Decision #16,379

This decision illustrates that an individual’s actions in reliance on information provided by a school official that subsequently proves to be incorrect will not excuse the individual's not complying with statutory or regulatory requirements.

Jennifer Geiger filed a petition as a candidate for election to the school board.

Education Law §2608(1) proves that candidates for office of member of the board of education must file a nominating petition “in the office of the clerk of the board of education between the hours of nine a.m. and five p.m., on or before the twentieth day preceding the day of the annual election.” §2608(1) also provides that “[t]he clerk shall refuse to accept petitions ... which are not timely.”

With respect to the election in question, the statutory deadline for filing nominating petitions was five p.m. on April 25, 2012.  The school district admittedly had advised individuals seeking election to the board that nominating petitions were due by four p.m. on April 27, 2012. 

Ms. Geiger submitted her petition after five p.m. April 25, 2012, but prior to the district’s published deadline of four p.m. on April 27, 2012. The district clerk, however, rejected Geiger's nominating petition as untimely because it was not filed by the statutory deadline of five p.m. on April 25, 2012.

The Commissioner of Education dismissed Ms. Geiger’s appeal, pointing out that “Because Education Law §2608(1) requires that nominating petitions be filed in the office of the district clerk on or before the twentieth day preceding the day of the annual election, petitions may not be filed after the statutory deadline.” Further, said the Commissioner, the board’s incorrect statement of the filing deadline does not authorize school district officials to depart from the statutory filing requirements….”

The Commissioner’s ruling is consistent with Renaud v City of New York, 269 A.D.2d 283. In Renaud the Appellate Division said that "estoppel is not available against an administrative agency for the purpose of ratifying administrative error."

The Geiger decision is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume52/d16379.html

Less than 30-days notice of termination of a probationary educator does not always result in the payment back salary


Less than 30-days notice of termination of a probationary educator does not always result in the payment back salary
Vetter v Board of Educ., Ravena- Coeymans-Selkirk Cent. School Dist., 53 AD3d 847

A probationary teacher of physical education and health education employed by Ravena-Coeymans-Selkirk Central School District. During the school year, several students made written complaints that the teacher had walked through the middle school girls' locker room while females were changing their clothes. Placed on administrative leave while an investigation was conducted, the teacher was told by the Superintendent that she planned to recommend his termination at the June 19, 2006 Board meeting .The decision notes that although the Board terminated the teacher’s employment on June 21, 2006 effective July 21, 2006, it did not notify him of that fact in writing until a letter dated July 19, 2006 was sent to him.

The teacher sued, seeking a name-clearing hearing pursuant to US Constitution 14th Amendment and 42 USC §1983, payment of 30 days salary in accordance with Education Law §3019-a and an award of counsel fees pursuant to 42 USC §1988. Without conceding that the probationer was entitled to a name-clearing hearing, the district agreed to provide him with one. Supreme Court awarded the teacher counsel fees related to his attempt to secure the name-clearing hearing, but denied his request for 30 days salary. Both parties appealed those portions of the Supreme Court’s ruling respectively viewed as adverse to them.

Regarding the teacher’s demand for salary payment, the Appellate Division said that a school district terminating a probationary teacher that fails to provide the 30-days notice required by Education Law §3019-a, must provide "one day's pay for each day the notice was late." Although it is uncontroverted that the teacher was only given two days notice of his termination - 28 days less than the required 30 days notice – the court agreed with the district that because “the time during which salary would be paid on account of the late notice fell during the summer vacation a time” when the teacher did not work and, therefore, would not otherwise have been paid, he was not entitled to receive any pay based upon the district's failure to provide the requisite notice.

The court noted that there is no evidence that the probationary teacher would have been entitled to any pay during the period in question if he had not been terminated. Thus, under these circumstances, the payment of salary to him would, in effect, provide a windfall to him and would not serve the purposes for which such payment was intended.

As to Supreme Court’s awarding the teacher attorney fees, the Appellate Division said such fees were erroneously awarded to him. The United States Supreme Court has clearly held that a voluntary resolution of a matter "lacks the necessary judicial imprimatur" to warrant "an award of attorney's fees." In this instance the district decided to give the probationer the “name-clearing hearing” he demanded. As the hearing was the result of the voluntary actions of school district, which was not enforced by a consent decree or judgment of Supreme Court, the Appellate Division ruled that the award of counsel fees was improper.

NYPPL Comments: A name clearing hearing, however, serves only one purpose - to clear the accused individual's good name and reputation. It does not result in the individual obtaining any right to reemployment. This means that having been provided with a hearing and having cleared his name is, at best, all the relief an individual can expect. Prevailing at a name-clearing hearing does not require the individual to be reemployed by his or her former employer.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/07/less-than-30-days-notice-of-termination.html

August 08, 2012

Failure to produce a valid license required to perform the duties of the position bars individual’s employment


Failure to produce a valid license required to perform the duties of the position bars individual’s employment
NYC Department of Sanitation v Wright, OATH Index #1601/12

OATH Administrative Law Judge John B. Spooner found that the worker’s failure to possess a valid driver’s license barred him from continued employment as a sanitation worker. The Appointing Authority adopted Judge Spooner recommendation that the individual be terminated from his position.

The decision indicates that the worker “violated department rules by failing to have a valid driver’s license and not having the license reinstated after being notified of the need to do so.”

Where a valid license, permit or certification is required to lawfully perform the duties of the position, courts have ruled that an individual may be suspended without pay if he or she becomes unable to lawfully perform the duties of the position because of a lack of, or the loss of, the required license, certification or similar permit. “Summarily” in this context means without preferring disciplinary charges and providing a due process hearing once the individual has been given a reasonable opportunity to produce the required credential and has failed to do so.

Common examples of situations leading to a valid summary dismissal include the revocation of a truck driver’s permit to operate a motor vehicle on public roads, the loss of an attorney’s license to practice law and the expiration of a temporary permit to teach. All that appears to be necessary in such cases is for the appointing authority to make some reasonable inquiry to determine if the employee may lawfully perform the duties of the position.

Essentially courts have viewed employees who lack such a required credential as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. As the Court of Appeals indicated in New York State Off. of Children & Family Servs. v Lanterman, 14 NY3d 275, termination from the position because the individual does not possess a valid required license or certification is not a disciplinary termination.

Other examples include Meliti v Nyquist, 53 AD2d 951, affirmed 41 NY2d 183 (immediate suspension of teachers was lawful because their teaching licenses had expired) and O’Keefe v Niagara Mohawk Power Corp, 714 FSupp 622, (traveling company demonstrator was not discriminated against when a private sector employer terminated the individual after his driver’s license was suspended).

In contrast, in Martin ex rel Lekkas, 86 AD2d 712, the issue focused on the employer's requiring Lekkas, an Assistant Clinical Physician, to have a valid license to practice medicine while serving as an administrator, a position that did not involve Lekkas’ practicing medicine. The appointing authority had terminated Lekkas from his position because he did not hold a valid New York State license to practice medicine. The Appellate Division ruled that only in the event the duties of the position require the incumbent to be licensed may the lack of such a license serve as grounds for termination.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/12_Cases/12-1601.pdf



Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position


Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position
Consalvo v City of New York, 53 AD3d 521

A New York City Sanitation Department employee was instructed to remove a dead cat from a public roadway. While removing the animal for the roadway the employee was struck by a hit-and-run driver, and thereafter died. Diane Consalvo sued the City, alleging wrongful death claming the City was negligent. The Supreme Court denied the City’s motion for summary judgment dismissing the action. On appeal, the Appellate Division, Second Department reversed the lower court’s ruling.

The Appellate Division said that “The duty of an employer to provide its employees with a safe place to work does not extend to hazards which are part of or inherent in the very work which the [employee] is to perform [nor] to secure the safety of [an employee] against a condition, or even defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence and experience of the [employee]”

In this instance, said the court, the City demonstrated it was entitled to judgment as a law by showing that the employee was an experienced sanitation worker, that it was part of his work to pick up dead animals from the roadway, and that the risks inherent therein, including the risk of being struck by a car, were readily observable.

Consalvo relied upon union rules, which the court said “were promulgated not as a safety measure, but to promote efficiency,” and upon the alleged "custom" of the Sanitation Department to dispatch two workers to collect garbage. However, said the Appellate Division, such evidence did not raise a “triable issue of fact” sufficient to defeat the City's entitlement to judgment as a law.

In another “safe workplace” case, Scharff v Sachem Cent. School Dist. at Holbrook, 53 AD3d 538, the court said that although Labor Law §240(1) affords special protection to workers who sustain personal injuries as a result of elevation-related risks such as falling from a height or being struck by a falling object that was improperly hoisted, the provision does not "encompass any and all perils that may be connected in some tangential way with the effects of gravity."

The injured worker testified that he slipped and fell onto the surface of a roof of a school while working. The school district, said the Appellate Division, met its burden of establishing its prima facie entitlement to judgment as a law by showing that the employee’s injury was not incurred as a result of an elevation-related risk. The Appellate Division also commented that “Supreme Court properly found that the [worker’s] affidavit, in which he alleged that he also slid down the roof, contradicted prior deposition testimony and was an attempt to create a feigned issue of fact.

The Consalvo decision is posted on the Internet at:

The Scharff decision is posted on the Internet at:
 

August 07, 2012

The Doctrine of Collateral Estoppel held to bar applicant’s claim for unemployment insurance benefits


The Doctrine of Collateral Estoppel held to bar applicant’s claim for unemployment insurance benefits
Matter of Redd (Commissioner of Labor), 2012 NY Slip Op 05886, Appellate Division, Third Department

Initially suspended without pay from her employment for alleged misconduct, an arbitrator ultimately found the employee guilty of misconduct and terminated from her position.

The individual then filed for unemployment insurance benefits. The Unemployment Insurance Appeal Board denied her claim for unemployment insurance benefits on the basis that she lost her employment through misconduct.

The Appellate Division affirmed the Board’s decision, holding that as “there was a full and fair opportunity to litigate the issue in the prior proceeding, collateral estoppel* effect must be given to the arbitrator's factual findings regarding claimant's misconduct.”

Further, said the court, upon review it concluded that "the Board properly took into account the arbitrator's factual findings regarding the events which led to claimant's dismissal and then went on to reach its own conclusion as to whether claimant's behavior constituted [disqualifying] misconduct under the Labor Law."

As the record before court provided substantial evidence to support the Board's conclusion that claimant engaged in disqualifying misconduct, the Appellate Division said that it found no basis to reverse the Board’s ruling.

* The Doctrine of Collateral Estoppel holds that the determination of the facts litigated between the parties to an earlier proceeding are binding and conclusive on those parties in any subsequent litigation involving the same issue[s] and parties.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05886.htm

Mode of payroll payment should not affect the employer’s being reimbursed for the salary paid an educator while he or she was receiving workers’ compensation benefits


Mode of payroll payment should not affect the employer’s being reimbursed for the salary paid an educator while he or she was receiving workers’ compensation benefits
Pawlewski v Buffalo Bd. of Educ.,
53 AD3d 834

A teacher employed by the Buffalo Board of Education, was injured when she fell at work. She was still out of work at the time of the relevant workers' compensation hearings. The controlling provisions of the collective bargaining agreement between the Board and the educator’s union provide that the teacher was continue to receive her regular wages and benefits for up to two years and "the salary allowance paid [to her] under worker[s'] compensation [would] be assigned to the [employer]."

Buffalo paid the teacher her full salary during this period but when it sought reimbursement, the Workers' Compensation Board modified its hearing officer’s determination, finding that Buffalo was not entitled to reimbursement for payments it made to the teacher for the “summer recess” period during which she was “on disability leave.”

Buffalo and its workers' compensation carrier appealed.

The Appellate Division noted that Workers' Compensation Law §25 (4) (a) “provides, in pertinent part, that if an employer ‘has made payments to an employee in like manner as wages during any period of disability, [the employer] shall be entitled to be reimbursed out of an unpaid installment or installments of compensation due.’”

In this instance the teacher had received her full annual wages, which had been paid in the same manner as she had received them before her injury in accordance with the contractual terms providing that a teacher's total annual salary is paid over a period of 10 months. Under the circumstances, said the court, the Board erred in reversing that part of the ALJ’s determination that would have reimbursed Buffalo for the summer recess period.

The decision is posted on the Internet at:

August 06, 2012

Waiving further administrative or judicial consideration of the resulting decision as a conditions of electing a particular administrative review procedure binding


Waiving further administrative or judicial consideration of the resulting decision as a conditions of electing a particular administrative review procedure binding
Colon v New York City Employees' Retirement Sys., 2012 NY Slip Op 05819, Appellate Division, Second Department

When the application for a performance-of-duty retirement disability pension was denied by the Board of Trustees of the New York City Employees' Retirement System, the applicant was advised that there were three different options to seek review of the determination available: (1) to commence a CPLR article 78 proceeding within four months of receipt of the denial letter; (2) to request review of her case by a Special Medical Committee consisting of three independent physicians; or (3) to refile for a disability pension.

The applicant elected to have her case reviewed by the Special Medical Committee and, as a condition of obtaining such a review, waived any right to further administrative or judicial review of the Board of Trustees' determination.

The Special Medical Review Committee concluded that while the applicant was, indeed, disabled, the disability was not the result of a job-related accident.

Board of Trustees adopted the Special Medical Review Committee's recommendation, again denying the application, and the applicant filed an Article 78 petition seeking to overturn the Board’s determination.

Denying the appeal, the Appellate Division said that by “electing to have her case reviewed by the Special Medical Review Committee and executing a waiver of her right to further administrative or judicial review, [the applicant] agreed to accept the Special Medical Review Committee's determination as binding and conclusive.”

Noting that the applicant did not allege that the waiver was the result of coercion or duress and its terms were “clear and unambiguous,” the court explained that "[W]hen a waiver is freely and knowingly made and not the product of coercion or duress, a party can waive his rights to seek review of an administrative proceeding and such determination is binding."

The decision is posted on the Internet at:

Limitations on the use of sick leave by police officers


Limitations on the use of sick leave by police officers
Economico v. Village of Pelham, 50 NY2d 120

Is it lawful to terminate a police officer on sick leave at full pay if he or she is unable to perform the duties of the position due to a non-work related injury or disease?

In contrast to the discontinuation of a police officer from the payroll while he or she is eligible for benefits pursuant to §207-c of the General Municipal Law,* a police officer placed on a leave of absence pursuant to §72 of the Civil Service Law because of an injury or disease that is not work-related may be terminated from his or her position pursuant to §73 of the Civil Service Law at the discretion of the appointing authority.

Notwithstanding a Taylor Law contract provision providing for “unlimited sick leave with pay” for police officers unable to work due to non-service related disabilities, the New York State Court of Appeals has held that a police officer so disabled could be terminated pursuant to §73 of the Civil Service Law. The Court distinguished Economico from the Yonkers teacher case (Board of Educ. v Yonkers Fedn. of Teachers, 40 NY2d 268) where the Court held there was no prohibition against the establishment of a limited job security clause in a collective bargaining agreement.

The State’s interest in maintaining the efficiency and continuity of its civil service was held to be a substantial one and §73 truncates the employee’s right to be continued in his or her position without limitation, even in the face of a contract provision to the contrary, at the discretion by the appointing authority. It should be noted, however, that a police officer eligible for General Municipal Law §207-c benefits would be subject to the provisions of §71 of the Civil Service Law while a police officer absent due to an injury or disease that was not job-related is typically granted leave, with or without pay, pursuant to §72 of the Civil Service Law.

In Dolan v Whalen, 49 NY2d 991, the Court of Appeals held that a hearing in connection with termination pursuant to §73 is required if there is “some factual dispute impacting upon the employer’s right to discharge” the employee.**

Although §73 speaks of “termination,” such a termination is not a “dismissal” in a pejorative sense as the individual has certain rights to reinstatement to his or her former position, or a similar position, upon his or her recovery from the underlying disability or, if there is no suitable vacancy available at that time, the placement of his or her name on a preferred list. The same it true with respect to an individual who is terminated from his or her position while on leave pursuant to §71 of the Civil Service Law.

The police officer injured in the line of duty is entitled to unlimited leave with pay and other benefits pursuant to General Municipal Law, Sections 207-c(1), which leave is at full salary until the disability ceases or the individual retires or is retired, as provided by law. 

Further, the police officer cannot be required to use any leave credits available to him (Op. St. Comp. 79-356). The Comptroller’s Opinion noted that “a municipality and its policemen may not agree through collective bargaining that a policeman injured in the performance of his duties apply accumulated sick leave or vacation credits to receive the full amount of his salary during the period of his [or her] disability.”

* An appointing authority may not summarily terminate an individual’s §207-c disability benefits [Kempkes v Downey, 53 AD3d 547].

** See Sheeran v New York State Dept. of Transp., 18 NY3d 61, a case addressing the rights of an individual who has voluntarily absented him or herself from work due to a non-work related injury of disease and seeks to return to his or her position.

=======================

General Municipal Law§§ 207-a and 207-c - a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder and other disability retirement issues is available from the Public Employment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.

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August 04, 2012

Reports and information published by New York State's Comptroller Thomas P. DiNapoli


Reports and information published by New York State's Comptroller Thomas P. DiNapoli
Issued during the week of July 30 - August 5, 2012 [Click on the caption to access the full report]

DiNapoli: Special Education Contractor Bilked Taxpayers Out of $2.6 Million

IncludED Educational Services, a Cedarhurst–based provider of special education services, inappropriately charged New York City’s Department of Education and others more than $2.6 million over a two–year period, including more than $850,000 in salaries paid to the sons and other relatives of its executive director, according to an auditreleased Wednesday by State Comptroller Thomas P. DiNapoli. The findings have been referred to the Manhattan District Attorney’s Office.


DiNapoli: Auditors Block $1.4 Million in Improper Unemployment Insurance Payments

State Comptroller Thomas P. DiNapoli prevented $1.4 million in inappropriate unemployment insurance payments or payment requests by the Department of Labor, including to recipients that were employed, deceased or unauthorized to work in the United States, according to a reportreleased Tuesday. The Comptroller’s Office also found nearly $1 million in improper payments, which had already been paid.


DiNapoli: Local Governments Facing New Fiscal Reality

The Office of the State Comptroller has released a reportentitled New Fiscal Realities Challenge Local Governments, which is now available on our website. This summarizes 60 audit reports released in fiscal year 2011–12 that identified local governments with inaccurate budgeting practices. The report also summarizes 23 budget reviews that OSC completed during the same time period. The report outlines the Comptroller’s commitment to ensuring that local officials develop budgets that provide transparency and accountability to taxpayers. The report can be accessed on the OSC website at http://www.osc.state.ny.us/localgov/pubs/fiscalrealities2012.pdf.


DiNapoli: MTA Gave Apple Inside Advantage For Grand Central Terminal Lease

The Metropolitan Transportation Authority (MTA) slanted a supposedly competitive process to fill prime retail space in Grand Central Terminal in Apple’s favor, according to an auditissued Monday by New York State Comptroller Thomas P. DiNapoli. Auditors and investigators found that the MTA worked exclusively with Apple behind the scenes on a lease for more than a year before issuing a request for proposals that resulted in only one response — from Apple.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the following audits: the Town of German; the Town of Hurley; the Town of Ridgeway; Washington County; and, the Westfield Volunteer Fire Department.

August 03, 2012

An appeal to the Commissioner of Education must comply with all precedural requirements set out in the relevant Regulations of the Commissioner


An appeal to the Commissioner of Education must comply with all precedural requirements set out in the relevant Regulations of the Commissioner
Appeal of R.F. and D.F., on behalf of their son R.F., from action of the Board of Education of the East Meadow Union Free School District, Decisions of the Commissioner of Education, Decision #16,369

In this pro se appeal, R.F. and D.F. [the parents] appealed the suspension of their child, R.F., and asked the Commissioner to remove the Superintendent and the Board President from their respective positions.

The Commissioner denied the parents’ appeal on the merits but addressed a number of procedural matters that should be noted.

The School District contended that the appeal should be dismissed because the petition filed by the parents:

1. Failed to state a claim upon which relief may be granted;

2. Failed to join necessary parties; and

3. Was not verified. 

The School District also objected to parents’ response to its memorandum of law. On this point the Commissioner said: “Although labeled ‘Reply,’ it is unclear whether [the parents] intend this document to be a reply or reply memorandum of law …to the extent this ‘Reply’ was intended as a reply, it is untimely, because the parents failed to serve it within 10 days after service of the school district’s answer in accordance with §275.14(a) of the Commissioner’s regulations.”
 
If, however, the “Reply” was intended as a reply memorandum of law, the Commissioner pointed out that a reply memorandum of law may not be used to belatedly add new assertions that are not part of the pleadings and may be accepted only with the prior approval of the Commissioner, citing 8 NYCRR §276.4.  Although the Commissioner said that the parents had “apparently contacted my Office of Counsel prior to their submission, it fails to comply with §276.4 of the Commissioner’s regulations pertaining to memoranda of law, or with §276.5 pertaining to additional affidavits, exhibits and other supporting papers.”
 
Accordingly, said the Commissioner, “I have not considered it.”

The School District also contended that the appeal must be dismissed because the petition is not verified.  8 NYCRR §275.5 of the Commissioner's regulations requires that all pleadings in an appeal to the Commissioner be verified.  In the event a petition is not properly verified, the appeal must be dismissed.

The Commissioner, noting that the parents’ petition that was filed with his Office of Counsel included the required verification, ruled that dismissal on that basis is not warranted.

Turning to that portion of the parents’ appeal that challenged their child’s suspension from school and seeking to expunge any report of the incident from his school record, the Commissioner said that he will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest. As the child had already “served the suspensions and returned to school,” that aspect of the appeal, said the Commissioner, was moot.

However, said the Commissioner, to the extent that parents seek expungement of the incident from their child’s school record, that aspect of the appeal survived.

As to the parents’ seeking the removal of the Superintendent and the Board President, the Commissioner said that their application must be denied for failure to join necessary parties, i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

“Joinder” requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

Turning to the requirement that the appropriate parties must be served with the necessary papers, the Commissioner noted that the parents had “served only the district by personally serving the Superintendent’s secretary and … a member of the board.” As neither the Superintendent nor the Board President was personally served with a copy of the notice of petition and petition, the Commissioner ruled that the parents’ “removal application must be denied.”

Further, said the Commissioner, there was another basis for denying parents’ application for removal: the notice of petition was defective.  8 NYCRR §277.1[b] requires that the notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office. The parents, however, had failed to give such notice and, instead, used the notice prescribed under 8 NYCRR §275.11(a) for appeals brought pursuant to Education Law §310. 

A notice of petition that fails to include the language required by the Commissioner’s regulation is fatally defective and does not secure jurisdiction over the intended respondents.

Finally, the Commissioner noted that “A petition to the Commissioner is required to set forth the allegations in numbered paragraphs, be typewritten and double spaced, citing 8 NYCRR §275.3[c].  Although a liberal interpretation of these rules is appropriate where petitioners are pro se and there is no prejudice to respondent, the Commissioner noted that the parents’ lack of adherence to the regulations “has obfuscated their contentions.”

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume52/d16369.html

Employee’s termination based on the findings and recommendation of the disciplinary hearing officer


Employee’s termination based on the findings and recommendation of the disciplinary hearing officer
Snead v Village of Spring Valley, 2012 NY Slip Op 05749, Appellate Division, Second Department

Supreme Court dismissed a petition filed pursuant to Article 78 of the Civil Practice Law and Rules challenging the determination of the Village of Spring Valley Justice Court dismissing the individual from her position, noting that the Justice Court had adopted the findings and recommendation of the disciplinary hearing officer.

The Appellate Division affirmed the Justice Court’s action, noting that the alleged misconduct, falsification of public records, and insubordination, was supported by “substantial evidence adduced at the administrative hearing.”

In addition, the court held that “in light of the charges and the [employee’s] duties, the penalty imposed was not so disproportionate to the offenses as to be "shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law, citing Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05749.htm

Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim


Where available, the Doctrine of Absolute Privilege defeats a plaintiff's defamation claim
Murphy v City of New York, 2008 NY Slip Op 31926(U), Supreme Court, New York County, Docket Number: 0106059/2006, Judge: Karen Smith [Not selected for publication in the Official Reports.]

Judge Smith said that “the privilege of absolute immunity is bestowed upon an official who is a principal executive of State or local government or is entrusted by law with administrative or executive policy-making responsibilities of considerable dimension,'" and that this privilege “extends to those of subordinate rank who exercise delegated powers,” citing Firth v State of New York, 12 AD3d 907, lv to appeal denied, 4NY3d 709 and Ward Telecom. & Computer Services v State of New York, 42 NY2d 289.

In Firth, the New York Office the State Inspector General ”) was found to be cloaked with absolute immunity, where it had conducted an investigation of the Department of Environmental Conservation’s Law Enforcement Division and its subsequent report, allegedly containing defamatory statements about the Division’s former director, was later published on the Internet.

Among the most common situations where the issue of privilege is raised are those involving the employee alleging that internal communications between administrators or between an employee and an administrator concerning the worker contains defamatory statements. Murphy v Herfort, 428 NYS2d 117, is an example of litigation resulting from communications between administrators; Missek-Falkoff v Keller, 153 AD2d 841, is an example of a case where one employee sued another because of the contents of a memorandum from the second employee to a superior concerning a "problem" with the coworker.

This issue may also arise in connection with an employee's former employer supplying information to a prospective employer of the individual in response to a request for "references" (see Buxton v Plant City, 57 LW 2649). Unless malice is shown, the courts usually dispose of such a case by applying the doctrine of "qualified immunity."

In Tulloch v Coughlin, 50 F.3d 114, the US Circuit Court of Appeals, Second Circuit, considered the differences between absolute immunity and qualified immunity.
The difference is significant. Absolute immunity completely insulates an individual from civil law suits. In contrast, a qualified immunity protects the individual from liability only where the individual did not violate a persons "clearly established" right.

August 02, 2012

Performing tasks that are a reasonable outgrowth of an employee’s in-title work does not constitute “out-of-title” work


Performing tasks that are a reasonable outgrowth of an employee’s in-title work does not constitute “out-of-title” work
Scarsdale Assn. of Educ. Secretaries v Board of Educ. of Scarsdale Union Free School Dist., 53 AD3d 572

The Scarsdale Association of Education Secretaries filed a petition pursuant to CPLR Article 78 seeking a review of a determination of the Scarsdale Union Free School District that assigning certain employee security responsibilities did not constitute "out-of-title" work within the meaning of the Civil Service Law. Supreme Court dismissed the Association’s petition and the Appellate Division affirmed the lower court’s ruling.

The Association sued the School District as a result of its implementation of a "single point of entry system" in each of its elementary schools. In order for a visitor to enter the building, he or she had to go to the school's main entrance, which was monitored by a video camera, and ring a doorbell. Some of the secretaries and typists working at the schools were assigned the responsibility of granting the visitors access to the schools. This required the employee to look at a monitor, see that a visitor wanted to come inside, and press a "buzzer" to remotely unlock the door to the main entrance.

Subsequently the District required some secretaries and typists to provide contractors working inside school buildings with identification badges. The secretaries and typists claimed that these new responsibilities were not required by their job descriptions and thus constituted "out-of-title" work within the meaning of Section 61.2 of the Civil Service Law.

The Appellate Division agreed that Civil Service Law §61(2) prohibits out-of-title work except during an emergency situation but noted that “work is not considered out-of-title if it is related to, similar in nature to, or a reasonable outgrowth of, the employee's ‘in-title’ work,“ citing Healy v County of Nassau, 18 AD3d 873.

In this instance the court decided that ”the directives requiring the secretaries and typists involved to use the surveillance monitors and buzzers to admit visitors, and to supply contractors with identification badges, constituted a reasonable outgrowth of their “in-title” work. In particular, the court noted that the job description for the typists included "receiv[ing] visitors, ascertain[ing] their business and direct[ing them] to appropriate staff members."

As to the secretaries, the Appellate Division said that their job description included "a considerable amount of contact with the public."

The court decided that fact that these tasks overlap job responsibilities “set forth in the job specifications of the schools' security workers” does not mandate the conclusion that the secretaries and typists assigned to perform these tasks are performing out-of-title work.

The decision is posted on the Internet at:

August 01, 2012

A disciplinary settlement agreement in which the appointing authority waived the right to bring certain charges against an individual bars the appointing authority from subsequently bring charges based on the same event[s] or omission[s]


A disciplinary settlement agreement in which the appointing authority waived the right to bring certain charges against an individual bars the appointing authority from subsequently bring charges based on the same event[s] or omission[s]
Matter of Board of Educ of The Unadilla Val. Cent. Sch. Dist., 2012 NY Slip Op 05779, Appellate Division, Third Department

The Unadilla Valley Central School District appealed Supreme Court’s denial of its Article 75 petition to vacate an arbitration award.

The school district and one of its educators entered into a "settlement agreement" whereby:

1. The educator agreed to a retroactive suspension without pay, to a reassignment, to discontinue coaching school sports, and to the placement of a letter of reprimand in his personnel file in which he admitted that he had engaged in misconduct and conduct unbecoming a teacher; and

2. The school district agreed not to bring disciplinary charges pursuant to Education Law §3020-a agaisnt the educator "with regard to any of the matters involved in the investigation," but retained the right to bring disciplinary charges "alleging incompetency based upon the results of the Education Law [§]913 examination."*

The educator submitted to a §913 examination and the school district then filed disciplinary charges against the educator pursuant to Education Law §3020-a(1) alleging that the educator was “unfit to perform the job duties of a teacher" and suspended him with pay pending a hearing on the charge.

Ultimately the Hearing Officer issued a written decision concluding that the school district had failed to meet its burden of establishing that the educator was unfit to teach and dismissed the charge. The school district filed a petition pursuant Article 75 of the CPLR to seeking to vacate the arbitration award, which petition was denied by Supreme Court.

The Appellate Division affirmed Supreme Court’s ruling, explaining that judicial review of and authority to vacate a hearing officer's determination of disciplinary charges against a tenured teacher is limited to the grounds set forth in CPLR 7511(b)(1), including acts in excess of the arbitrator's power [and citing City School District of New York v McGraham, 17 NY3d 917] [w]here, as here, parties are subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny — it 'must have evidentiary support and cannot be arbitrary and capricious.'"

The school district had argued that the medical testimony established the educator's unfitness to teach, and the Hearing Officer's determination to the contrary is irrational and arbitrary and capricious.

Initially, said the Appellate Division, the Hearing Officer properly declined to sustain the charge based upon  the educator’s conduct as disclosed in the pre-settlement investigation given that in the agreement, the school district had "explicitly waived the right to bring charges with regard to any of the matters involved in the investigation." In contrast, said the court, the school district retained the right to pursue charges based upon the results of the Education Law §913 medical examination.

Although the educator’s prior underlying inappropriate conduct was certainly relevant to that charge and properly considered by all of the testifying medical experts in their assessments of his condition, the Appellate Division ruled the prior conduct could not, by itself, meet school district's burden of proof on the charge.

Further, said the Appellate Division, “the evidence regarding [the educator’s] underlying conduct did not authorize the Hearing Officer to impose discipline in the absence of a finding of guilt on the charge.” 

In contrast, if the school district had initially believed, based upon the results of the investigation, that the educator was unfit to teach, it could have pursued disciplinary charges pursuant to Education Law §3012(2)(a) or (b), premised upon the disclosed underlying conduct. It elected not to do so and, instead, waived the right to bring such charges in the settlement agreement and retained the educator as a tenured teacher in exchange for certain concessions from him.

On the merits, said the Appellate Division, Supreme Court properly confirmed the arbitration award dismissing the charge. Contrary to the school district's contentions, the arbitrator's award did not violate public policy so as to have "exceeded his power" nor was it irrational.

Given the hearing officer’s conclusion that the school district had failed to prove the sole charge presented, the court opined that “it certainly cannot be a violation of public policy to decline to impose a penalty or to require counseling or supervision” under these circumstances.

The Appellate Division then ruled that “As a result of the school district’s decision to enter into an agreement waiving a myriad of appropriate disciplinary charges of general unfitness to teach — such as neglect of duty, immoral character or conduct unbecoming a teacher, the charge before the Hearing Officer was limited to unfitness to teach by reason of a mental condition or disability." As the Hearing Officer rationally concluded that this charge was not proven, the Appellate Division affirm Supreme Court's order denying the school district's application to vacate the award.” 

On another point, the Appellate Division noted that Supreme Court had granted the educator's request for “an anonymous caption.” The Appellate Division pointed out that while the educator was entitled to request a private hearing on the disciplinary charges, there is no provision requiring anonymity on judicial review of an arbitration award on such charges.

* §913 authorizes the “Medical examinations of teachers and other employees,” such examination to be conducted by the individual’s personal physician or by a physician designated by the appointing authority.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05779.htm

New application filing period for all State promotion, transition, and open-competitive examinations


New application filing period for all State promotion, transition, and open-competitive examinations
New York State Department of Civil Service General Information Bulletin No. 12-03

New York Civil Service Department Director of Staffing Services Blaine Lynch has advised that the Department is implementing new filing periods for State civil service examinations commencing in Fall 2012.

The new application filing period will be 30 days for all promotion, transition, and open-competitive examinations.

This change is reported in General Information Bulletin No. 12-03 being distributed to State Department and Agency Directors of Human Resource, Personnel and Affirmative Action Officers.

The change is designed to allow the Department “to maintain a timely, high quality application review and to improve the efficiency of its test production schedule, while ensuring candidates have a sufficient and reasonable time in which to file an application for an examination.”

Bulletin No. 12-03 is posted on the Internet as a PDF file at:

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