Using hearsay evidence in a disciplinary hearing

Using hearsay evidence in a disciplinary hearing
Saunders v City of New York, App. Div., First Dept., 273 A.D.2d 103, motion for leave to appeal denied, 95 N.Y.2d 766

A New York City police officer was terminated from his position after being found guilty of having "assaulted and caused physical injuries” to two individuals.

The officer appealed, contending that the Commissioner's determination was not supported by substantial evidence because it was based on hearsay. The Appellate Division disagreed, holding that "[t]he hearsay statements of the complainants were sufficiently probative to constitute substantial evidence."

According to the decision "[h]earsay may constitute substantial evidence where, as here, it is sufficiently reliable and probative on the issues to be determined."

This, in turn, depends on the credibility of the witnesses. The issue of the credibility of the witnesses at the officer's departmental disciplinary hearing, said the court, "was a matter to be assessed by the Deputy Commissioner who presided at the trial.”

Accordingly, said the court, determinations concerning the credibility of witnesses "is largely beyond our power of review."

Barring a former employee from property

Barring a former employee from property
Toussaint v Local 100, TWU, CA2, U.S. App. LEXIS 16257

May an employer prohibit an individual it has dismissed from entering its property? The Second Circuit Court of Appeals ruled the employer may prohibit such an individual from entering its non-public areas.

A Transportation Workers Union representative had been dismissed from his position with the New York City Transit Authority [NYCTA]. NYCTA then banned the representative from the non-public areas of its property. The representative sued, contending that this action by NYCTA violated his First Amendment rights.

The Circuit Court affirmed a federal district court's dismissal of the Union representative’s petition. The lower court had determined that he "failed to show a likelihood of success on the merits" because:

1. He did not demonstrate that he was excluded from non-public areas because the Transit Authority's motivation was to impair the exercise of his First Amendment freedoms or;

2. The Transit Authority's rule barring discharged employees from non-public areas lacked a reasonable basis.

The representative also attempted to obtain a stay of arbitration, claiming that NYCTA and Local 100 went forward with his arbitration "without allowing him to participate in selecting a neutral arbitrator to chair the arbitration panel." The Circuit Court of Appeals rejected this representation as moot "because the arbitration [had] proceeded to conclusion."

Employee exonerated of alleged off-duty misconduct

Employee exonerated of alleged off-duty misconduct

NYC Department of Corrections v Gayle, OATH Index #105/12

OATH Administrative Law Judge John B. Spooner recommended dismissal of a charge that a correction officer had caused more than $250 worth of damage to her former landlord’s property.

The landlord’s testimony that he saw the correction officer hitting the bathroom walls with a sledgehammer was uncorroborated and contradicted in part by evidence that the landlord himself had damaged the apartment.

The correction officer’s testimony that she had moved out of the apartment one month before the damage was incurred following alleged “improper actions by the landlord,” was corroborated by her sister’s testimony, date-stamped photographs showing the apartment in disarray, and the landlord’s admission that he had piled bolts of fabric inside the correction officer’s apartment and removed light bulbs because he was frustrated by her failure to pay rent and abrupt departure from the apartment.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1051.pdf

Payroll deductions

Payroll deductions
Westchester County Correction Officers Benevolent Association, 33 PERB 3025

Although a "letter ruling" by the Internal Revenue Service advised the employer that it had the discretion to withhold income tax from the wages of individuals on workers' compensation leave or receiving benefit pursuant to Section 207-c of the General Municipal Law bi-weekly and reimburse the employee for such deductions annually or elect not to make such deductions, PERB ruled that it was an improper practice for the employer to change its procedure from not making such deductions to making bi-weekly deductions without first negotiating the change with the employee organization even where the claim for such benefits was controverted by the employer since the exercise of discretion is generally subject to a duty to bargain.

An alleged ambiguity in the collective bargaining agreement concerning the applicability of a provision constitutes a matter of contract interpretation and is for the arbitrator to resolve

An alleged ambiguity in the collective bargaining agreement concerning the applicability of a provision constitutes a matter of contract interpretation and is for the arbitrator to resolve

Board of Educ. of Yorktown Cent. Sch. Dist. v Yorktown Congress of Teachers, 2012 NY Slip Op 06023, Appellate Division, Second Department

Yorktown Central School District filed an Article 75 petition seeking a permanent stay arbitration of a claim by a teacher for approval of certain graduate credits for compensation pursuant to a collective bargaining agreement. Supreme Court granted the school districts petition and the Yorktown Congress of Teachers appealed.

The Appellate Division reversed the lower court’s ruling “on the law” and directed that the parties proceed to arbitration.

The court noted that the relevant collective bargaining agreement included [1] an annex to the salary schedule providing for payments for approved graduate credits and [2] a “four-step grievance* procedure culminating in binding arbitration.”

The Appellate Division explained that in determining whether a dispute between a public sector employer and employee organization on behalf of an employee is arbitrable,** a court must first determine whether there is a statutory, constitutional or public policy prohibition against arbitration of the grievance. If it finds no such prohibition against arbitration, the court must examine the parties' collective bargaining agreement to determine "whether the parties in fact agreed to arbitrate the particular dispute."

Finding that arbitration of the instant dispute was not prohibited by public policy or statute, including those provisions of the Education Law permitting any party aggrieved by a determination of a board of education to appeal to the Commissioner of Education nor by the power of a school board to manage the educational affairs of the school district, the Appellate Division found that there was a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA – i.e., a claim for approval of graduate credits for compensation and the general subject matter of the CBA.

Noting that “some uncertainty exists as to whether the subject matter of the dispute is encompassed within the provision governing payments for approved graduate credits or the exclusion from arbitration of matters involving the Board's discretion,” the Appellate Division said that any alleged ambiguity in the CBA "regarding the coverage of any applicable provision is . . . a matter of contract interpretation for the arbitrator to resolve."

Accordingly, the Appellate Division granted the Youngstown Congress of Teacher’s cross petition to compel arbitration.

* In this instance the CBA defined a "grievance" as "any dispute or claim by either party . . . arising out of or in connection with this Agreement" other than matters that involved [a] the School Board's exercising its discretion, [b] a nonapproval of tenure decision; and [c] matters where a review was prescribed by law.

** Subject limited exceptions, as a general rule only the certified or recognized employee organization may demand arbitration of a grievance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06023.htm

Reinstatement following layoff focuses on tenure rights

Reinstatement following layoff focuses on tenure rights

Chauvel v. Nyquist, 55 AD2 76, affd., 43 NY2 48)

Does “greater system-wide service” control situations involving layoff of teachers, or is it seniority in corresponding or similar positions that determines which person is to be offered an open teaching position first?

Where the performance of duties of the open position is unquestionably “similar” to those of the abolished positions, the teacher having the greater seniority in the performance area, not in the employing school district itself, is to receive the appointment.

Standards for such re-employment are more narrow than those dealing with layoff (Ward v. Nyquist, 43 NY2d 57) so as to prevent erosion of the tenure rights of the incumbents of abolished positions and means that the duties required to be performed in the vacant position must be similar to the duties performed by the person in his previous position before it was abolished. A test was stated in Elkins, 14 Ed Dept Repts 193, to the effect that if more than one-half of the functions to be performed by the incumbent of the new position are those which he performed in his old position, the positions are similar.

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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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Statute of limitations for challenging a personnel decision begins running when the individual is notified of the final and binding determination

Statute of limitations for challenging a personnel decision begins running when the individual is notified of the final and binding determination
McCarry v Purchase Coll., State Univ. of N.Y., 2012 NY Slip Op 06026, Appellate Division, Second Department

In a proceeding pursuant to CPLR Article 78 challenging the decision of the President of the State University of New York College at Purchase not to reappoint an assistant professor to the Purchase faculty, Supreme Court annulled the President’s determination and remitted the matter to for a de novo review and a new determination. Supreme Court also directed the retroactive reinstatement of the faculty member with full compensation and benefits pending the de novo review.

The Appellate Division reversed the lower court’s rulings “on the law."

Pointing out that the assistant professor’s challenge to the President’s decision was time-barred by the four-month statute of limitations, the court explained that the statute of limitations set forth in CPLR §217(1) began to run on the date that the challenged determination became final and binding.*

Citing Matter of Village of Westbury v Department of Transp. of State of N.Y., 75 NY2d 62, the Appellate Division said that "A determination generally becomes binding when … the agency has reached a definitive position that inflicts concrete injury to the aggrieved party that cannot be prevented or significantly ameliorated by further administrative action” and the individual has been advised of that determination.

In this instance it was undisputed that the assistant professor commenced his Article 78 action more than four months after receiving notice that he had not been reappointed to his teaching position.

Significantly, the court said that the limitations period did not run from the date upon which the assistant professor's fixed-duration employment contract automatically ended but rather commenced to run when he received notice of the “final determination” that he would not be reappointed to the college faculty.

Further, said the court, even had the faculty member Article 78 action “been timely commenced, the record demonstrates that the [College President] substantially complied with the internal rules of Purchase College, State University of New York and the determination was not arbitrary and capricious."

* N.B. A request to “reconsider” a final and binding administrative determination does not toll the running of the Statute of Limitations [Lavin v Lawrence, 54 AD3d 412].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06026.htm

Evidence of progress in employee’s treatment for alcoholism tempers disciplinary penalty

Evidence of progress in employee’s treatment for alcoholism tempers disciplinary penalty

NYC Department of Sanitation v Anonymous, OATH Index #1637/12

Although the New York City Department of Sanitation sought to terminate an employee after a positive alcohol test, OATH Administrative Law Judge Tynia D. Richard recommended a 30-day suspension for the sanitation worker.

Judge Richard noted that the employee had offered evidence of his progress through alcohol treatment as a recovering addict.

The Department’s request for termination was essentially based on the two earlier opportunities that it had provided the worker to recover from his alcohol dependence.*

In fashioning a penalty recommendation, the ALJ noted that employee had voluntarily entered the treatment program, took responsibility for his actions and showed insight into the extent of his problem, and that such a penalty might be combined with ongoing alcohol testing (though not provided under Civil Service Law §75) as the Department sees fit.

* Individuals who abuse alcohol may be considered disabled under the ADA if the person is an alcoholic or a recovering alcoholic. Courts have usually held that alcoholism is a covered disability. For example, in Williams v. Widnal, 119 F3d 305, [Cert. Denied 118 S. Ct. 871], the court said, without discussion, that alcoholism “is a covered disability.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1637.pdf

Payment of vacation leave accruals upon separation from employment

Payment of vacation leave accruals upon separation from employment
Bolin v Nassau County Bd. of Coop. Educ. Servs.,52 AD3d 704

Although the employee admitted that she "agreed to resign" and plead guilty to attempted grand larceny in the second degree, she subsequently sought payment of her “accrued vacation benefits” and the return of her “personal property” from Nassau County Board of Cooperative Educational Services [BOCES].

BOCES had rejected the request for the payment of accrued vacation benefits in the sum of $31,020.80. Of amount, $16,768.00 representing the cash value of her 40-day vacation leave balance and $14,252.80 represented the cash value of her 34-day "vested bank" vacation leave balance. In a separate cause of action, the individual sought the return of certain items of her personal property that she claimed BOCES had unlawfully refused to return after she retired.

BOCES asked Supreme Court to dismiss the combined petition/complaint, arguing that, as a matter of public policy, their former employee was not entitled to either payment because she pleaded guilty to attempted grand larceny in the second degree.

The Supreme Court agreed with BOCES and dismissed the petition/complaint, holding that, as a law, BOCES was within its right to reject the request for a lump sum payment representing her unused and "vested bank" vacation leave in view of her guilty plea.

The Appellate Division disagreed, ruling that the guilty plea did not warrant dismissal of BOCES's former employee’s petition/complaint in its entirety because, in this instance, certain provisions of a collective bargaining agreement controlled.

The relevant provision in the collective bargaining agreement, said the court, "gives BOCES the discretion to deny payment for ‘vested bank’ vacation leave if the employee's separation from BOCES was ‘for cause.’”

Under the circumstances the Appellate Division ruled that Bolin’s separation from BOCES was "for cause" and thus she failed to demonstrate that BOCES was required to pay her for the cash value of her 34-day "vested bank" vacation balance as the collective bargaining agreement gave BOCES discretion to deny such payment in the event an employee’s separation was “for cause.”

As to the payment of payment of the cash value of the individual’s 40-day vacation leave balance, she argued that the collective bargaining agreement "confirm[s], accept[s] and acknowledge[s] a past practice, established for a substantial period of time," in which BOCES pays retiring employees for any unused vacation leave.

The Appellate Division said that while the collective bargaining agreement itself was ambiguous in that it does not specifically require BOCES to pay retiring employees the cash value of their accumulated vacation leave balances, the relevant amendment to the collective bargaining agreement relied upon specifically references such a past practice and does not contain a separation "for cause" limitation or exception.

The court concluded that Supreme Court had “improperly dismissed” her claims that (1) BOCES must pay her the cash value of her 40-day vacation leave and (2) that she is the owner of certain personal property that BOCES unlawfully refused to return to her.

NYPPL Comments: 4 NYCRR 30.1 setting out the relevant portion of the Attendance rules that apply to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides, in pertinent part, ”No employee who is removed from State service as a result of disciplinary action, or who resigns after charges of incompetency or misconduct have been served, shall be entitled to compensation for vacation credits under the provisions of this Part.” Many local civil service commissions have adopted a similar provision.

The full text of the decision is set out on the Internet at: http://nypublicpersonnellawarchives.blogspot.com/2008/07/payment-of-vacation-leave-accruals-upon.html

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

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

Issued during the week of August 20 – 26, 2012 [Click on the caption to access the full report]

DiNapoli: New York’s Fiscal Picture Remains Tied to Pace of Recovery

New York State tax revenues were close to expected levels in July after falling short of estimates in May and June, according to the July Cash Report released Monday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced Tuesday his office completed the following audits:

Town of Carrollton;

Town of New Scotland; and,

Town of Woodstock.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli Friday announced his office completed the following audits:

Department of Health;

Office for People with Developmental Disabilities;

New York State Health Insurance Program, Empire Blue Cross and Blue Shield Payments Made to Hudson Valley Hospital Center;

New York State Health Insurance Program, United HealthCare;

New York State Health Insurance Program, Empire Blue Cross and Blue Shield Payments Made to Stony Brook; and,

Department of Motor Vehicles.

Termination recommended after a special police officer found guilty of giving false information to a police officer

Termination recommended after a special police officer found guilty of giving false information to a police officer
NYC Administration for Children’s Services v Toro, OATH Index No. #1023/12 and OATH Index #1024/12

Two Administration for Children’s Services [ACS] special officers were found to have made false statements to supervisors and to an investigator regarding their involvement in connection with the traffic stop of a relative and former ACS special officer. It was alleged that a photocopy of an unauthorized ACS identification card was displayed to a NY/NJ Port Authority police officer in the course of the traffic stop.

One of the special officers at the scene of the traffic stop displayed his ACS ID card and badge and falsely told a Port Authority police officer that his relative would be getting a new ACS ID when his problems at work were resolved.

Due to the severity of the misconduct, OATH Administrative Law Judge Faye Lewis recommended termination of employment for one of the special officers, the brother of the former officer, despite the lack of his having any prior disciplinary record. The officer resigned shortly after the decision was issued.

Judge Lewis did not recommend a penalty to be imposed on the other special officer as his employment was terminated by ACS in connection with a different matter.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1023.pdf

Discipline involving alleged off-duty misconduct

Discipline involving alleged off-duty misconduct
Local 342 v Town of Huntington, 52 AD3d 720

Local 342 brought an Article 75 action seeking to vacate an arbitrator’s award based on a “finding that the Town had just cause for suspending [an employee] from his position with the Town."

The genesis of the Town’s action: An Ordinance Inspector from the Town cited a building owned by the accused employee and his wife for numerous violations of the Huntington Town Code. Local 342 had appealed the ruling, contended that the award was irrational because the employee’s performance of his duties was completely unrelated to the off-duty misconduct of which he was accused.

Supreme Court vacated the arbitration ward on the ground that it was irrational and, therefore, the arbitrator had exceeded her authority. The Appellate Division sustained the lower court’s ruling.

The Appellate Division ruled that while the charges against the employee emanating from his ownership of premises situated in the Town were "substantial and directly affect the safety of the public," they did not relate to his character, neglect of duty, or fitness to properly discharge the duties of his position. In this regard the Appellate Division decided that the Local had met its burden of showing that the award is irrational because there was "no proof whatever” to justify the award in view of the fact that the employee’s performance of his official duties “were completely unrelated to the off-duty misconduct of which he is accused.”

If an arbitrator's award is completely irrational, "it may be said that [s]he exceeded [her] power" and thus, said the Appellate Division, Supreme Court properly vacated the award.

NYPPL Comments: In New York State, unless otherwise provided by a collective bargaining agreement or by statute, typically only incompetence or misconduct related to job performance or off-duty misconduct adversely reflecting on the public employer [see, for example, Smith v Kerick, 292 A.D.2d 223 and Wilburn v McMahon, 296 A.D.2d 805] may serve as a lawful basis for an appointing authority initiating disciplinary action against a public officer or employee.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/discipline-related-to-alleged-off-duty.html

Court will not assume that the arbitrator will be unable to fashion an appropriate remedy

Court will not assume that the arbitrator will be unable to fashion an appropriate remedy
Board of Education of City School Dist. of City of Buffalo, 53 AD3d 1071

The Buffalo Fiscal Stability Authority (BFSA) imposed a wage freeze with respect to public employees of the City of Buffalo, including employees of the Buffalo City School District. In accordance with the freeze, the District did not pay wage increases mandated by the parties' collective bargaining agreement (CBA).

The unions initially sued in federal court challenging the constitutionality of the wage freeze under the Contracts and Takings Clauses of the United States Constitution but were unsuccessful [Buffalo Teachers Fedn. v Tobe, 446 F Supp 2d 134, affd 464 F3d 362, cert denied, 127 S Ct 2133].

The unions then filed a demand for arbitration and the District filed a petition pursuant to CPLR Article 75 seeking a permanent stay of arbitration.

The Appellate Division affirmed Supreme Court’s dismissal of the District’s petition, rejecting its argument that “any remedy awarded in the arbitration would violate public policy and thus that the grievance is not subject to arbitration.” The court said while a court may stay arbitration if it "examines an arbitration agreement . . . on its face and concludes that the granting of any relief would violate public policy" it would not “presume in advance of arbitration that the arbitrator will fashion a remedy that will violate public policy.”

Neither was the Appellate Division persuaded by the District’s claim that having litigated the issue in federal court, the union’s demand for arbitration was improper as the issue had already be the subject of a judicial review. It noted that the federal litigation was limited to constitutional challenges to the wage freeze, while the grievance filed by the union concerns is whether there was a violation of the CBA between the parties.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2008/07/court-will-not-assume-that-arbitrator.html

National security trumps federal employee’s civil service protection

National security trumps federal employee’s civil service protection

Various media reports

Newspapers and others have published articles about a United States Circuit Court decision that concluded that the federal Merit Systems Protective Board cannot consider appeals from federal workers demoted or terminated from their position based on their lack of  “security clearance.”

The Circuit Court held that ”the Board cannot review the merits of Executive Branch agencies’ national security determinations concerning eligibility of an employee to occupy a sensitive position that implicates national security.”

In response to a number of inquiries seeking a copy of the decision, the case is Berry [as Director, Office of Personnel Management] v Conyers and Northover and the Merit Systems Protective Board, # 2011-3207, Petition for Review of the Merit Systems Protection Board in Consolidated Case Nos. CH0752090925-R-1 and AT0752100184-R-1, US Circuit Court of Appeal, Federal Circuit.

The decision is posted on the Internet at:

http://www.cafc.uscourts.gov/images/stories/opinions-orders/11-3207.pdf

State Department’s mandatory retirement at age 65 of certain employees policy violates Age Discrimination in Employment Act (ADEA)

State Department’s mandatory retirement at age 65 of certain employees policy violates Age Discrimination in Employment Act (ADEA) 

Miller v Clinton, United States Court of Appeals, District of Columbia Circuit, Docket #10-5405

The United States Department of State terminated the employment of John R. Miller, Jr., a United States citizen working abroad, solely because he turned sixty-five years old.*The Department contended that it was free to terminate employees like Miller on account of their age as a matter of law.**

Noting that “the necessary consequence of the Department’s position is that it is also free from any statutory bar against terminating an employee like Miller solely on account of his disability or race or religion or sex, the Circuit Court of Appeals, Circuit Judge Kavanaugh dissenting. reversed the district court’s dismissal of Miller’s petition. The court said that it found nothing in the Basic Authorities Act, 22 U.S.C. 2669(c)2(c), relied upon by the State Department for its action that abrogated the ADEA’s broad proscription against personnel actions that discriminate on the basis of age.***

Noting that the Supreme Court has recognized that the ADEA’s sweeping mandate “broadly prohibits arbitrary discrimination in the workplace based on age,” citing Lorillard v Pons, 434 U.S. 575, the Circuit Court said that “The Act’s protections for employees of the federal government are, if anything, even more expansive than those for workers employed in the private sector … means, among other things, that federal employees cannot be subjected to mandatory retirement at any age.” In other words, said the court, there is “no permissible [age] cap” for federal employment.

The consequences of the State Department’s argument, said the Circuit Court, cannot be limited to the ADEA alone as were it to accept the Department’s contention that §2669(c) creates an exemption from the ADEA, it would have to reach the same conclusion regarding both Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§2000e et seq., and the Americans with Disabilities Act (ADA), 42 U.S.C. §§12101 et seq.3 as it could see no way to distinguish the latter two statutes from the ADEA.

The Circuit Court remanded the case to the district court “for further proceedings.”

* The ADEA [see 29 USC 14, §631(c)(1)] sets out an "age exception" for “bona fideexecutives or high policymakers” wherein it provides that “Nothing in this chapter shall be construed to prohibit compulsory retirement of any employee who has attained 65 years of age and who, for the 2-year period immediately before retirement, is employed in a bona fide executive or a high policymaking position, if such employee is entitled to an immediate nonforfeitable annual retirement benefit from a pension, profit-sharing, savings, or deferred compensation plan, or any combination of such plans, of the employer of such employee, which equals, in the aggregate, at least $44,000” [§29 U.S.C. 14, §631(c)(1)]. 

** The State Department contended that the statute under which Miller was hired, §2(c) of the Basic Authorities Act, 22 U.S.C. §2669(c), permitted the Department to exempt Miller from the protections of the ADEA

*** The court explained that “Congress would not have used ambiguous language had it intended to override the ADEA is confirmed by considering the language that Congress did use when it intended to carve out exceptions from that statute … when Congress had such an intention, it made that intention clear.”

The decision is posted on the Internet at:

http://www.cadc.uscourts.gov/internet/opinions.nsf/B65D15DDE4EE579F85257A53004E90E1/$file/10-5405-1387823.pdf