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Thursday, November 04, 2010

Discontinuing or postponing administrative disciplinary action while criminal action involving the same event is pending and related issues

Discontinuing or postponing administrative disciplinary action while criminal action involving the same event is pending and related issues
Levine v New York City Transit Authority, 70 AD2d 900, affirmed 49 NY2d 747

New York courts have considered discontinuing disciplinary action while criminal action is pending, holding that an appointing authority has no obligation to postpone administrative disciplinary action even if the county district attorney requests that the administrative disciplinary action be postponed. This was the point made by the court in Levine v New York City Transit Authority.

It may, however, sometimes be advantageous for the appointing authority to wait until the criminal matter has been adjudicated. New York courts have ruled that a criminal conviction compels an automatic finding of guilt in an administrative disciplinary hearing involving the same offense.

If an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are filed related to that same incident of theft, there is no lawful way for a disciplinary hearing officer to find the employee not guilty of stealing. Probably the leading case illustrating this point is Kelly v. Levin, 440 NY2d 424. In Kelly the court ruled that is a reversible error for an administrative disciplinary body to acquit an employee if the individual has been found guilty of a criminal act involving the same allegations.

The reason this is true is that the standard of proof required in a criminal proceeding is greater than that in an administrative disciplinary proceeding. In a criminal case, the standard is proof beyond a reasonable doubt. In contrast, the standard to be met to find an employee guilty of the charges filed against him or her in administrative disciplinary action is “substantial evidence” or, in some situations, “a preponderance of the evidence.”

Is an employee subjected to "double jeopardy" if the employer proceeds with an administrative disciplinary action at the same time as criminal charges are pending or following the criminal action should the employee be acquitted? Courts have ruled this is not double jeopardy.

In Bermudez v NYC Transit Authority, Appellate Division, upholding a lower court's determination, said that as to the "double jeopardy" issue,[1] "the dismissal of the criminal charges brought against [Bermudez], which were predicated upon the same acts which were the subject of the disciplinary proceeding commenced against him, has no bearing upon the determination terminating his employment."

In Matter of the Haverstraw-Stony Point CSD, 24 Ed. Dept. Rep. 466, the Commissioner of Education ruled that a Section 3020-a hearing panel is not required to adjourn an administrative disciplinary hearing when parallel criminal proceedings are underway.

A claim of double jeopardy is, however, more frequently encountered in efforts to suppress a disciplinary action in situations were the charges reflect the same acts or omissions that were the subject of counseling memoranda or performance evaluations. The courts have rejected this theory.

In Patterson v Smith, 53 NY2d 98 the Court of Appeals said that including charges concerning performance that were addressed in a counseling memorandum was not “double jeopardy.”

The court explained that a “proper counseling memoranda” contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself. Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event or events.

The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate [Fusco v Jefferson County School District, CEd, 14,396 and Irving v Troy City School District, CEd 14,373].

The point made in Fusco and Irving is that comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.

What distinguishes lawful “constructive criticism” of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature?

In Holt v Board of Education, 52 NY2d 625, the Court of Appeals decided that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding. In other words, the act of placing correspondence critical of the employee’s conduct or performance in his or her personnel file did not constitute discipline.

The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism. In contrast, alleged “constructive criticism” may not be used to frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure. In other words, an appointing authority may not frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure by claiming its action was merely “constructive criticism.”

In the Fusco and Irving cases, the Commissioner of Education found that “critical comment” exceeded the parameters circumscribing “lawful instruction” concerning unacceptable performance.

In Fusco’s case, the Commissioner said that “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” noting that the memorandum “contains no constructive criticism or a single suggestion for improvement.” Rather, said the Commissioner, the memorandum focused on “castigating [Fusco] for prior alleged misconduct.”

In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law.

* Bermudez attempt to vacate the award contending that he had been acquitted of criminal charges that had led to the administrative disciplinary action.

If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

Termination of employment pursuant to Civil Service Law Section 73

Termination of employment pursuant to Civil Service Law Section 73
Fallon v Triboro. Bridge & Tunnel Auth., 259 AD2d 377

An individual who is terminated pursuant to Section 71 or Section 73 of the Civil Service Law because of his or her absence caused by a disability may decide to sue the employer, claiming the termination was unlawful.* Such was the situation underlying the Fallon case.

The Triboro Bridge and Tunnel Authority terminated Gregory Fallon pursuant to Section 73 of the Civil Service Law after he had been continuously absent in excess of one year. Fallon sued, claiming various violations of his civil rights under federal and state law. The court found that Fallon had been absent on disability leave for 12 years and had never sought to return to work, with or without accommodation, even after he was denied ordinary disability retirement benefits.

The Authority had told Fallon that it would terminate him if he failed to qualify for ordinary disability retirement. This, said the Appellate Division, constituted “adequate pretermination notice,” commenting that “[i]n the context of Section 73 discharges, [due process] amounts to no more than an opportunity for the employee to present opposing views as to whether [he] has been absent for one year or more and whether [he] was able to return to [his] position.”

As to any post-termination rights, the Authority “in language tracking the provisions of Civil Service Law Section 73,” had written Fallon advising him of his termination and “that he could apply for a medical examination within a year of the termination of his disability, and if found fit, could apply for reinstatement.” This, said the court, was sufficient to meet due process requirements.

The Appellate Division also ruled that Fallon failed to make a prima facie case of disability-based discrimination under the Vocational Rehabilitation Act (29 USC Section 794) because the Authority “is not a recipient of federal funds.”

Fallon also contended that the Authority had violated the Americans with Disabilities Act. The court determined that his ADA rights had not been violated “since he makes no allegation that he requested an accommodation for his alleged disability and was refused.”

In view of this, the court ruled, “there is no ground to conclude that [the Authority] violated the New York State Human Rights Law (Executive Law Section 296), prohibiting disability-based discrimination” and dismissed Fallon’s appeal.

* Section 71 provides for leave in connection with a work-connected injury or disease. Section 73 provides for the termination of an individual who is on leave pursuant to Section 72, which mandates leaves of absence in the event an employee is unable to work because of an injury or disease that did not result from a work-related incident.

Tuesday, November 02, 2010

Dual employment

Dual employment
Holbrook v Rockland Co, 260 AD2d 437

Most public officers and employees serve in one position at a time. Sometimes, however, an individual may be employed by two different jurisdictions simultaneously. Such dual employments generally require the knowledge and approval of the appointing authorities involved.*

Dual employments are often suspect -- particularly when both are purported to be “full-time” posts. Another consideration: is there the appearance of, if not an actual, a conflict of interest involved in a particular “dual employment” situation. As the Attorney General advised in an informal opinion:

In the absence of a constitutional or statutory prohibition against dual-office holding, one person may hold two offices simultaneously unless they are incompatible [Informal Opinions of the Attorney General 98-17, May 11, 1998].

The opinion notes that the “leading case on compatibility of office” is People ex rel. Ryan v Green, 58 NY 295. In Ryan the Court of Appeals said that “two offices are incompatible is one is subordinate to the other or if there is an inherent inconsistency between the two offices.”

The Holbrook case involved a “dual employment” situation, but with a novel twist. Here the “appointing authority” in each instance was the voter. Charles E. Holbrook had been elected to two different Rockland County public offices, by two different electorates, and, as a result, was simultaneously serving in two different elective offices in two different jurisdictions.

However, in 1993 Rockland County had passed a local law -- the so-called “two hats” law -- barring an elected county officials from holding any other elected town or village office [Rockland County Local Laws of 1993, #6]. In other words, an individual could not hold a county elective office if in so serving he or she would be simultaneously serving as a local elected officer in another public jurisdiction.**

Holbrook, who was elected to serve in the Rockland County Legislature, had also been elected to position of town supervisor of a town in Rockland County. He challenged Local Law 1993 #6, as well as a 1997 local law providing for reapportionment of election districts, contending that both local laws were invalid because they had been enacted without a voter referendum as mandated by Municipal Home Rule Law Section 23(2)(e) and (f).

The Appellate Division affirmed a ruling by a Supreme Court justice rejecting Holbrook’s complaint, holding that both local laws had been validly adopted. The decision noted that while Section 23(2)(e) and (f) requires a referendum if the proposed local law “changes the term of an elective office”, or “curtails any power of an elective officer,” Rockland’s “two hat” laws merely prohibited Rockland County legislators from simultaneously holding a second elective office. The Appellate Division said that the local laws in question neither changed the terms of an elective office nor curtail any powers of an elective officer.

* Dual employments, in which appointments to different positions are made, are not the same as a “joint appointment.” In a joint appointment, two [or more] appointing authorities jointly authorize the employment of an individual in a single position and the two appointing authorities typically share the personnel service costs.

** Local Law 1993, #6, permitted elected county officials then holding two elective offices to continue to serve in both offices until January 1, 1998.

Friday, October 29, 2010

Jarema credit and eligibilty for tenure

Jarema credit and eligibilty for tenure
Barbaccia v Locust Valley CSD, 282 AD2d 674

The central issue in the Barbaccia case concerned a teacher’s eligibility for Jarema credit for the purposes of granting tenure. As the decision demonstrates, determining whether an individual qualifies for Jarema credit is not always an easy task.

The case arose when Tori Barbaccia was denied tenure prior to the end of his two-year probationary period. He claimed that he had acquired tenure be estoppel a year earlier as he was entitled to Jarema credit for one and one half years of prior service as a “permanent per diem” substitute teacher with his employer, the Locust Valley Central School District.

Barbaccia had served as a per diem substitute during the 1992-93 and 1993-94 school years. He was then appointed as a part-time four-fifths social studies teacher for the 1993-94 school year. In September 1, 1995, Barbaccia was given a two-year probationary appointment and by letter dated April 11, 1997, was advised that he would not be recommended for tenure. He was terminated effective August 1, 1997.

Claiming that he had acquired tenure by estoppel or acquiescence in February 1997, Barbaccia sued to compel the board to reinstate him to his former position with tenure and back salary on the authority of Section 3012(1)(a) of the Education Law. Section 3012(1)(a), sets a three-year probationary period for teachers, but allows a reduction of the probationary period for up to one year by extending a credit (referred to as “Jarema credit”) for up to two years of “satisfactory service as a regular substitute.”*

The school board argued that Barbaccia did not qualify as a “regular substitute” since he “did not take over the class of another teacher on a permanent basis for any definite time but rather substituted for other teachers on a daily basis or for other short periods of time.” Barbaccia, the district claimed, fell within the category of “itinerant substitute.”

Barbaccia substituted for many teachers and in different subject areas, including his certified area of social studies, but never replaced any teacher for any extended period of time and never for a full semester or term. The Appellate Division, however, said what is controlling is the character of the teacher’s actual service.

The ruling notes that the Commissioner of Education has classified substitute teachers: those performing regular substitute service and those performing itinerant substitute service.

A “regular substitute” is one who takes over the class of another teacher upon a permanent basis, i.e., under circumstances where the regular teacher for maternity reasons, or for sabbatical or sick leave, has been given a definite leave of absence” while the “itinerant substitute” is a person who is called in for half a day, for short periods or for a week or more, to take the place of a teacher who is temporarily absent because of sickness or otherwise.”

An itinerant substitute is paid upon a day rate, is not entitled to membership in the teachers’ retirement system, and receives no recognition by statute for that type of service” (65 NY St Dept Rep 65, at page 67).

In Matter of Spechler, 90 NY2d 110, the Court of Appeals held that whether one falls within the category of “regular substitute” or “itinerant substitute” must be based on the substitute teacher’s actual service. It said that the substitute teacher’s title, rate of pay (per diem or annual salary), and whether the teacher for whom the substitution is made was absent for a definite or indefinite period may be factors to be considered but each alone is not dispositive and “the distinction between definite and indefinite absences should not be rigidly applied.”

The Appellate Division decided that Barbaccia was not entitled to any Jarema credit for the fall 1992 semester because he did not provide services for the entire semester nor for the time he worked as a part time teacher. But since the part time employment was immediately prior to the probationary appointment, the court ruled that he may be entitled to Jarema credit for the time he served as a “permanent substitute” that may otherwise qualify.

To resolve the issue, the court remanded the question of whether Barbaccia qualified for Jarema credit to Judicial Hearing Officer Marie G. Santagata.

* "Jarema credit" is named after the bill's sponsor, Assemblyman Stephen J. Jarema.

Thursday, October 28, 2010

Mandatory retirement

Mandatory retirement
Mainello v McCall, 252 AD2d 235, motion to appeal dismissed, 93 NY2d 919

In 1988 the state amended the Retirement and Social Security Law to change the mandatory age of retirement for certain members of the Police and Firefighters’ Retirement System [PFRS] from age 60 to age 57 [Chapter 795 of the Laws of 1988].

State Police Assistant Deputy Superintendent John A. Mainello challenged the requirement that he retire from his position upon his attainment of age 57 [RSSL Section 381-b(e)].

He filed a lawsuit contending that the legislature’s action violated the state Constitution. He said it contradicted the so-called “Nonimpairment Clause” (Article V, Section 7), which provides that a retiree’s retirement benefits from a public retirement system of this state are contractual and may neither be diminished nor impaired.

Mainello argued that his retirement benefits would be compromised because he would “lose three years of member service.” The Appellate Division disagreed, holding that Mainello’s early retirement would have a “minor and entirely incidental” influence on his retirement benefits.

Furthermore, the Appellate Division pointed out that the law only protects the benefits of current retirees, not the potential benefits of employees who are approaching retirement. [“(T)he fact that there can be no Constitutional impairment of pension system benefits does not create a constitutional right to stay in public employment” (see Cook v City of Binghamton, 48 NY2D 323); “(An) expectation of remaining in public employment ... is not within the scope of protection afforded by the Nonimpairment Clause.” (see Lake v Regan, 135 AD2d 312)]

In addition, the amendment requiring PFRS members to retire at age 57 “was enacted to further a legitimate public policy goal,” the Appellate Division said.

Courts will probably apply a similar reasoning to other challenges to mandated early retirement on constitutional grounds.

Judge Cardona dissented, commenting that “it is settled law that “[t]he Nonimpairment Clause of the New York Constitution was adopted in order to prevent the reduction of an individual’s retirement benefits after he or she had joined a retirement system operated by the State or one of its civil divisions.” Judge Cardona also cited Lake v Regan [supra] in support of his position.

In effect Judge Cardona took the position that a member of a public retirement system is entitled to at least the level of benefits provided by law when he or she joined the system when he or she retires. Because the system provides a “defined benefit,” Judge Cardona concluded that a member suffers an impairment of his or her constitutionally protected retirement benefit if the calculation of his or her “defined benefit” would be adversely affected by any amendment to the Retirement and Social Security Law prior to his or her effective date of retirement.

Religious freedom and employment

Religious freedom and employment
Marchi v BOCES, 2nd Cir., 173 F.3d 469

A school risks violating the Establishment Clause of the U.S. Constitution if any of its teachers’ activities give the impression that the school endorses a religion.

But how far can a school board go in limiting a teacher’s classroom speech on religious issues before it tramples on another Constitutional guarantee: the right to free expression? The U.S. Court of Appeals for the Second Circuit, which includes New York State, wrestled with those issues in the Marchi case.

Dan Marchi, a certified special education teacher in the Capital Region BOCES, taught socially and emotionally disturbed high school students. Marchi said he “underwent a dramatic conversion to Christianity,” and admitted that he shared this experience with his students.

In the fall of 1991 he modified his instructional program to discuss topics such as forgiveness, reconciliation, and God. He used a tape, Singing the Bible, in class and voiced his thankfulness to God in at least one letter to a parent.

After Marchi ignored letters directing him to refrain from using religion as part of his instructional program, the BOCES filed charges of insubordination and “conduct unbecoming a teacher” against him. A state Department of Education hearing officer found that Marchi had committed an act of insubordination and imposed a penalty of six months’ suspension without pay.

However, Marchi’s return to teaching was conditioned on his commitment, in writing, to adhere to a directive that he would not discuss religion in class. Upon advice of his attorney, Marchi said that he would adhere to the directive.

Marchi then filed a civil rights complaint pursuant to 42 USC 1983, alleging that:

1. By suspending him in 1995, BOCES violated his rights to academic freedom, free association, free speech, and free exercise of religion, as well as his rights under the Religious Freedom Restoration Act;

2. BOCES violated his right to due process and retaliated against him when deciding his classroom assignment upon his return to teaching;

3. The directive he accepted was unconstitutionally vague and overbroad; and

4. The directive “proscribe(d) protected speech between Marchi and students’ parents.”

A federal district judge dismissed his complaint, saying “thousands of teachers of common intelligence are able to distinguish between their instructional program and their personal life and do so without violating the establishment clause.” In addition, the District Court found that the challenged directive “addresses only [Marchi’s] instructional program and no other aspect of [his] personal life”.

Marchi appealed the ruling. The Circuit Court agreed with the lower court, holding that while “the directive is unquestionably a restraint on Marchi’s First Amendment rights,” not all restraints on free exercise and free speech rights are invalid. The court said that the validity of a particular restraint depends on the context in which the expression occurs.

The Circuit Court noted that the decisions that governmental agencies make in determining when they are at risk of Establishment Clause violations are difficult.

In dealing with their employees, public employers cannot be expected to resolve so precisely the inevitable tensions between the Establishment Clause and the Free Exercise Clause “that they may forbid only employee conduct that, if occurring, would violate the Establishment Clause and must tolerate all employee conduct that, if prohibited as to non-employees, would violate the Free Exercise Clause.”

In discharging its public functions, said the Court, the governmental employer must be given some latitude and the employee must accept that he or she does not retain the full extent of free exercise rights that he or she would enjoy as a private citizen.

Wednesday, October 20, 2010

Rescinding a letter of resignation

Rescinding a letter of resignationGrogan v Holland Patent CSD, App. Div., 4th Dept., 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756

Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that Holland Patent CSD food service worker Gina Grogan learned when she attempted to rescind her letter of resignation.

Grogan sent a letter to the district stating that she was resigning from her position “effective immediately.” After the letter had been forwarded to the district’s clerk, Grogan decided to withdraw her resignation. When the school board refused to allow her to do so, she sued.

The critical question: Did Grogan rescind her letter of resignation before it had been delivered to the “appointing authority?”

In this instance the appointing authority was the school board. The Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the Board.” Therefore, the resignation could not be withdrawn without the board’s consent.

Citing Oneida County’s Rules for Classified Civil Service, the Appellate Division sustained a lower court’s dismissal of Grogan’s petition.

The Appellate Division also referred to the Rules of the State Civil Service Commission, 4 NYCRR 5.3. 4 NYCRR 5.3, in pertinent part, provide that “every resignation shall be in writing” and “a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” The Rules of the State Commission only apply to state employees but many political subdivisions of the state have adopted similar provisions. In this instance, Oneida County’s Civil Service Commission had adopted such a provision.

The court said that “the record reveals a reasonable basis for the [board’s] decision not to consent to [Grogan’s] withdrawal of [her] resignation, and there is no indication that the decision was affected by an error of law, was arbitrary and capricious, or that it constituted an abuse of discretion.”

It should be noted that action by the appointing authority to “accept the resignation” is not “a condition precedent” for the resignation to take effect unless such action by the appointing authority is mandated by law.

For example, the Rules of the State Commission provide that if no effective date is specified in the resignation, it takes effect upon delivery to the appointing authority. If, on the other hand, an effective date is specified, the resignation is to take effect on that date. In any event, “acceptance of the resignation” by the appointing authority is not required.

In contrast, an appointing authority may elect to ignore a resignation delivered to it by an individual against whom disciplinary charges have been, or are about to be, filed and proceed with the disciplinary action. With respect to employees of the State as an employer, 4 NYCRR 5.3(b) provides, in pertinent part, as follows:

Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.
Significantly, should the appointing authority elect to disregard the employee’s resignation and proceed with disciplinary action, if the individual is found guilty and the penalty imposed is “dismissal,” the separation is recorded as a “dismissal” and not as a “resignation.” This means that the individual will be required to indicate that he or she was “terminated for cause” should such a question be asked in any application for employment he or she files in the future.

Another possible element in such cases: the individual whose resignation is ignored declines to appear at the disciplinary hearing. In such cases, the appointing authority must go forward and try the employee “in absentia.”

The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.

The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."

New York City police officer Robert A. Mari was served with disciplinary charges alleging that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in criminal activities; (3) intentionally disclosed an informant's identity to a target of police activity; and (4) harassed "a former paramour."

When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.

The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."

The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in effect, a concession of guilt.

 If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

Thursday, October 07, 2010

Civil Service Law Section 72 leave

Civil Service Law Section 72 leave
Lara v City of New York, 1999 WL 459803.

It is not unusual for an employee placed on disability leave pursuant to Section 72 of the Civil Service Law to allege that his or her employer’s action in placing the individual on such leave constituted unlawful discrimination because of a disability. In the Lara case, national origin discrimination was claimed to have motivated placing the employee on “an involuntary medical leave” that eventually resulted in Lara’s being placed on Section 72 leave.

Pablo Lara, who was born in the Dominican Republic, was employed as a Program Officer by the New York City Department for the Aging (DFTA). His duties included monitoring contracts between DFTA and community-based organizations.

The New York Foundation for Senior Citizens, for instance, wrote a letter complaining that Lara “continuously” compared the Foundation administration to “‘militant dictatorships in many African countries.’” Throughout a meeting, it was alleged, Lara’s voice was raised and “he seemed agitated.” He repeatedly mimicked Foundation staff at the meeting.

The department decided to place Lara on an involuntary medical leave of absence effective March 21, 1997. Lara was also instructed to report to Dr. Azariah Eshkenazi for a psychiatric examination. According to the decision, Dr. Eshkenazi diagnosed Lara as having a “personality disorder, paranoid type” and “generalized anxiety.”

Lara was also examined by a psychiatrist of his own choosing, Dr. Pedro Rodriguez. Dr. Rodriguez said he found no evidence of “serious psychiatric conditions, including psychosis and personality disorder that could have prevented [Lara] from doing his work.”

Administrative Law Judge [ALJ] Ray Fleischhacker was designated to hold a Section 72 hearing. The ALJ decided to adjourn the hearing so that Lara could be examined by a third psychiatrist, Dr. Myron Gordon. Dr. Gordon diagnosed Lara as having “paranoid personality disorder.”

On December 3, 1997, the ALJ issued a “Report and Recommendation” in which he concluded that Lara was “mentally unfit to perform the duties of his position.” He recommended that Lara be placed on Section 72 leave.

The Department placed Lara on Section 72 leave effective December 15, 1997. While on such leave, Lara was re-evaluated by Dr. Eshkenazi, who determined that “Lara’s mental condition had not improved and that Lara remained unfit to return to work.” The department terminated Lara’s employment effective December 15, 1998. Section 73 of the Civil Service Law authorizes the termination of an individual who has been continuously absent on Section 72 leave for at least one year.

Meanwhile, Lara filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) on April 16, 1997, contending that the department’s decision to place him on involuntary medical leave constituted national origin discrimination. EEOC issued Lara a “right to sue letter” and Lara initiated litigation in federal district court.

A federal district court judge dismissed Lara’s petition, agreeing with the department that Lara had failed to perform his duties satisfactorily and, consequently, he failed to satisfy one of the critical elements required to establish a prima facie case of unlawful discrimination -- the individual’s ability to satisfactory perform the duties of the position.

Judge Cote said that the city had submitted “uncontroverted evidence” of Lara’s inappropriate behavior at staff meetings and that there was unrebutted evidence that “DFTA contractors complained repeatedly about Lara’s unprofessional behavior and requested that Lara be replaced by another program officer.” Accordingly, said the court, “Lara fails to raise an issue of fact that he was performing his job satisfactorily and [thus] fails to establish a prima facie case.”

The decision also notes an important procedural element. Lara had named the City, Shaffer, and DFTA as defendants. Judge Cote said that “[t]here is no individual liability under Title VII and the Title VII claims against Shaffer must be dismissed.” In addition, the court ruled that the Title VII claims against DFTA also had to be dismissed because under Chapter 17, Section 396 of the New York City Charter all actions and proceedings for the recovery of penalties for the violation of any law shall be brought in the name of the City of New York, and not that of any agency, except where otherwise provided by law.

Monday, October 04, 2010

Designating employee as managerial or confidential

Designating employee as managerial or confidential
Lippman v PERB, App. Div., Third Dept., 263 AD2d 891

The designation of managerial and confidential employees within the meaning of the Taylor Law is important to both employers and unions. In the Lippman case the Appellate Division, Third Department, set out the criteria courts follow in reviewing determinations by the Public Employment Relations Board [PERB] concerning the designation of such personnel.

PERB denied a request by the Office of Court Administration to designate nine high-level, nonjudicial Unified Court System [UCS] employees as managerial or confidential pursuant to Civil Service Law Section 201(7).

Employees designated “managerial or confidential” are excluded from the definition of public employees and are generally not covered “by the myriad of rights and protections afforded to public employees under the Taylor Law.”

The nine individuals served in position with the Court of Appeals, the Law Reporting Bureau and the First and Second Appellate Divisions and were then in a negotiating unit represented by the Civil Service Employees Association, Local 1000.

The Appellate Division affirmed PERB’s determination denying the nine managerial or confidential status on the authority of Court of Appeals decision in Rosen v Public Employment Relations Board, 72 NY2d 42.

Although UCS contended that the incumbents should designated managerial “based upon their role in the policy-making process of the courts where they work,” PERB had found that the nine did not “formulate policy” nor did they have a major role in personnel administration as contemplated by Civil Service Law Section 201(7)(a).

PERB’s “long-standing definitions of policy formulation” includes both “a person who has the authority or responsibility to select among options and to put a proposed policy into effect,” and a person “who participates with regularity in the essential process which results in a policy proposal and the decision to put such a proposal into effect.”

UCS contended that “employees need not be the ultimate decision makers to be designated as managerial policy formulators, and that it is sufficient if they assist the ultimate decision makers.” PERB, said the court, has recognized that the “definition of a policymaker is, and must be, sufficiently broad to include those relatively few individuals who directly assist the ultimate decision makers in reaching the decisions necessary to the conduct of the business of government.”

However, every employee who advise the ultimate decision makers is not automatically a policy formulator to be designated as managerial and excluded from the Taylor Law’s protections. Rather, the employer must demonstrate that the particular employee participates in the essential processes by which the employer makes its decisions regarding the department’s mission and the means by which those policy objectives can best be achieved.

The court said that it would defer to the expert charged with administering the Taylor Law -- PERB -- in view of its expertise with respect to the fundamental policies underlying that law.*

As to the standard the Appellate Division used: “‘[s]o long as [PERB’s] interpretation is legally permissible and so long as there is no breach of constitutional rights and protections ... ‘“, the court said it would accept PERB’s construction if reasonable and not arbitrary or irrational, [Village of Lynbrook v PERB, 48 NY2d 398].

The Court said that “[t]he determination of who “directly assists” the ultimate decision makers necessarily involves drawing distinctions and lines among employees based, inter alia [among other things], upon the nature, timing and level of their involvement in the decision-making processes, and upon the practices and hierarchy of the employer.”

Based on the record before it, the Appellate Division concluded, PERB acted rationally in making such distinctions and determinations regarding these employees.

What about “supervisory employees working with or for managerial employees.” The decision notes that such personnel “are not automatically or presumably confidential employees within the meaning of Civil Service Law Section 201(7)(a)(ii).” “Indeed,” said the court, “knowledge of personnel or disciplinary matters is often inherent in supervisory positions and does not warrant a confidential designation where it is limited and does not encompass labor relations information significant to the basic mission of the employer.”

* In contrast, the Appellate Division pointed out that “where ... the question is one of pure statutory construction,” dependent only on accurate understanding of the legislative intent, judicial review is less restricted as “statutory construction is the function of the courts.”

Thursday, September 23, 2010

Determining seniority for tenure purposes

Determining seniority for tenure purposes
Kaufman v Fallsburg CSD, Court of Appeals, 91 NY2d 57

Seniority is probably the most critical factor in determining who may be lawfully retained in a layoff situation. In the Kaufman case, the New York Court of Appeals addressed the competing seniority claims of two elementary grade teachers seeking to avoid being excessed by the Fallsburg Central School District.

Two teachers, Forman and Kaufman, were both appointed to the elementary tenure area on September 1, 1992. Forman had been given a probationary appointment in the special education tenure area in November 1990 but in the 1991-92 academic year she was assigned to teach sixth grade subjects to mixed classes consisting of regular education students and six learning-disabled special needs students. On September 1, 1992, the District additionally appointed Foreman to the elementary tenure area, and assigned her to teach fourth grade.

Kaufman, who had prior service in the District as a substitute teacher, also received a probationary appointment in the elementary tenure area on September 1, 1992. Kaufman then took over the instruction of Foreman's sixth grade class.

Effective June 30, 1994, the District abolished four elementary education positions. Kaufman was excessed when the District determined that she had the least seniority in the elementary tenure area. Kaufman sued, contending that she was entitled to additional credit in the elementary tenure area for the two months she taught as a regular substitute elementary teacher during the 1991-1992 school year and thus had greater seniority in the elementary tenure area than did Foreman.

While the District conceded that Kaufman was entitled to the two months of additional credit as she claimed, it said it had also recalculated Foreman's seniority and concluded that she was entitled to additional credit in the elementary tenure area for the entire 1991-1992 school year during which she taught the mixed sixth grade class of regular education and special needs students. This, the District argued, meant that Foreman still remained senior to Kaufman in the elementary tenure area.

Kaufman challenged this, contending that: (1) The facts in the record did not establish that Foreman served in the elementary tenure area during the 1991-1992 school year; and (2) the District did not have any authority to grant Foreman seniority credit in the elementary tenure area as of September 1991 because the District (a) failed to expressly notify Foreman that her assignment for the 1991-1992 school year was outside her initial special education appointment, and (b) it had not obtained Foreman's prior written consent to that out-of-tenure area assignment.

These omissions, Kaufman contended, barred the District from retroactively crediting Foreman with elementary tenure area seniority for her service during the 1991-1992 school year. A New York State Supreme Court justice disagreed, reasoning that accepting Kaufman's theory would penalize teachers for school district mistakes by depriving them of credit to which they would have been entitled but for the school district's error. The Appellate Division concurred with the Supreme Court's analysis and affirmed the lower court's ruling (234 AD2d 698).

The Court of Appeals agreed, dismissing Kaufman's appeal. It said that the lower courts "correctly concluded that there was a sound factual basis for the District's determination that Foreman devoted a substantial portion of her time during the 1991-1992 school year to teaching in the elementary tenure area." The Court said that the record contains "ample evidence to support the District's finding that Foreman devoted over 40% of her time to teaching the "common branch subjects" of reading, science, arithmetic and language arts to her sixth grade students."*

The Court also held that the fact that some of her sixth-graders were learning-disabled special needs students "does not, under these circumstances, compel a different conclusion and thus Foreman was entitled to seniority credit in the elementary tenure area for her service during the 1991-1992 school year."

What about the District's failure to comply with the notice provisions set out in 8 NYCRR 30.9(b)? Shouldn't this prevent the District from giving Foreman retroactive elementary area seniority credit for the 1991-1992 sixth-grade assignment?

The Court of Appeals said that "concededly, Foreman was not formally notified that her assignment to teach sixth grade in 1991-1992 was out of her original tenure area, and her consent was not obtained." More important, said the Court, 8 NYCRR 30.9(b) was promulgated pursuant to a legislative tenure scheme designed "to protect competent teachers from the abuses they might be subjected to if they could be dismissed at the whim of their supervisors," citing Ricca v Board of Education., 47 NY2d 385, 391.

Finding that the underlying purpose of 8 NYCRR 30.9(b) is not fulfilled by applying that provision to block a teacher from receiving seniority credit which, absent school district error, would have been received by reason of actual service in an out-of-tenure area, the Court said that the regulation has a two-fold protective purpose: (1) it protects teachers from being required to accept assignments outside of their designated tenure areas involuntarily; and (2) it protects teachers from being deprived of credit in a previously appointed tenure area if they unwittingly accept, and serve in, out-of-area assignments.

The Court of Appeals concluded that 8 NYCRR 30.9(b) was intended, and has been consistently construed administratively, as a safeguard for teachers who are assigned (either involuntarily or without their knowledge) outside of their designated tenure areas. Accordingly, the provision should not be interpreted to prevent a teacher from knowingly and voluntarily waiving that section's consent requirement when strict application of the regulation would itself impose adverse consequences upon the teacher.

* 8 NYCRR 30.1[g] provides that a "substantial portion" of the teacher's time "means 40 percent or more of the total time spent by a professional educator in the performance of his [or her] duties, exclusive of time spent in preparation, monitoring or in co-curricular activities."

If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/

Tuesday, September 14, 2010

Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee

Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee
Delia v. City of Rialto, USCA, 9th Circuit, No. 09-55514, decided September 9, 2010

In this 42 USC §1983 action, Firefighter Nicholas B. Delia sued the City of Rialto, the Rialto Fire Department, a number of Rialto Fire Department officials and a private attorney, Steve Filarsky alleging violations of his constitutional rights during a departmental internal affairs investigation in which he was involved.

Although the Ninth Circuit concluded that Delia’s constitutional right under the Fourth Amendment were violated as the result of a warrantless search of his home, it also determined that this right was not clearly established at the time of this constitutional violation. Accordingly, the Circuit Court affirmed the district court’s order granting qualified immunity to the several fire officials named in Delia’ complaint and affirmed the lower court’s granting the City’s motion for summary judgment dismissing Delia’s complaint.

The Circuit Court, however, reverse the district court’s granting qualified immunity to Filarsky, the private attorney retained by the City in the course of its investigation of Delia.*

The court explained that the doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” citing Pearson v Callahan, 129 S. Ct. 808.

In Pearson the Supreme Court indicated that the basis for proving public officials with “qualified immunity” was to balance “two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”

Addressing the lower court’s deeming Filarsky eligible for such qualified immunity, the Circuit Court said that “Unlike the other individual defendants in this case, Filarsky is not an employee of the City." Rather, said the court, he is a private attorney, retained by the City to perform certain services in connection with an internal affairs investigation.

Delia contended that Filarsky, as a private attorney, was not entitled to claim a qualified immunity while Filarsky argued that under the circumstances, and his work on behalf of the City, this was “a distinction without a difference.”

In support of his argument Filarsky cited Culliman v Abramson, 128 F.3d 301. In Culliman the Sixth Circuit Court of Appeals held that a law firm that had been hired by the City of Louisville to serve as outside counsel was entitled to qualified immunity against plaintiffs’ §1983 claims.

In Culliman the court said “We see no good reason to hold the city’s in-house counsel eligible for qualified immunity and not the city’s outside counsel.”

Acknowledging the 6th Circuit’s ruling, the Ninth Circuit court noted that in Gonzalez v Spencer, 336 F.3d 832, a different panel of the 9th Circuit held that a private attorney representing a county was not entitled to qualified immunity.

The defendant in Gonzales was a private attorney retained to defend Los Angeles County in an underlying civil rights suit brought by the plaintiff.

In rejecting the attorney’s claim of qualified immunity, the Gonzales court reasoned, “[the attorney] is not entitled to qualified immunity. She is a private party, not a government employee, and she has pointed to ‘no special reasons significantly favoring an extension of governmental immunity’ to private parties in her position.’”

The Circuit Court said that it was bound by the Gonzalez decision as Filarsky did not allege any “intervening en banc decision [by the Ninth Circuit], Supreme Court decision,** or intervening legislation which would permit us to overrule the holding in Gonzalez.”

Thus, said the court, Filarsky was not entitled to qualified immunity as a private attorney performing services for a public entity and reversed the district court’s grant of summary judgment in his favor. It then remanded the matter for trial or “further proceedings as determined by the district court.”

* Filarsky had previously represented the City in conducting interviews during internal affairs investigations.

** The 6th Circuit’s holding in Culliman and the 9th Circuit’s holding in Gonzalez suggests that the issue of whether an attorney in private practice performing services on behalf of a government entity may claim a “qualified immunity” if named as a defendant as the result of some act or omission in the performance of his or her duties may be ripe for consideration by the Supreme Court.

The decision is posted on the Internet at:

Monday, August 02, 2010

Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law

Uninterrupted Civil Service Law §72 absence for one year or more permits termination of employee pursuant to §73 of the Civil Service Law
NYC Dept. of Corrections v Anonymous, OATH Index #1472/10

OATH Administrative Law Judge Alessandra Zorgniotti recommended that the New York City Department of Correction terminate a correction officer absent on Civil Service Law Section 72 leave from employment pursuant to Section 73 of the Civil Service Law after the officer has been absent from duty continuously for more than one year due to a non work-related disability.

Zorgniotti credited the opinion of the Department's doctor that the officer was not currently fit to return to work because “his medical condition was active and that the stresses of returning to work in the jail could trigger another episode with serious consequences.”

Section 72 leave is available to an employee who is unable to perform his or her duties because of a disability other than a disability resulting from an occupational injury or disease as defined in the Workers’ Compensation Law, while Section 71 of the Civil Service Law provides for a leave of absence when the employee is absent due to an occupational injury or disease.

There is, however, one significant difference between Section 71 leave and Section 72 leave. The one-year leave period* allowed under Section 71 is determined on the basis of the individual’s cumulative absence while the minimum leave period under Section 72 is based on the employee’s ininterrupted absence for one year.

In other words, under Section 72, the employee may be terminated pursuant to Section 73 of the Civil Service Law if he or she has been absent from work for an uninterrupted period of at least one year.

In contrast, an employee absent on Section 71 leave may be terminate after he or she has been absent for a cumulative total of at least one year, even if such absences are intermittent whereby the employee returns to work and then goes on Section 71 leave again because of the same injury or disease.

It should be remembered that under both Section 71 and Section 73, separating an employee from service after the employee has been absent for the minimum period mandated for such leave is discretionary and the appointing authority is not required to terminate the employee.

Further, the individual separated from the position pursuant to either Section 71 or Section 73, as the case may be, is eligible for reinstatement to his or her former position is he or she applies for such reinstatement within one year of termination of the disability. If a suitable position is not available, the individual’s name is to be placed on a preferred list and he or she may be reinstated to a suitable position in a lower grade while on such a preferred list if available.

* In the event is the employee’s absence resulted from an assault sustained in the course of his or her employment, he or she is entitled to a leave of absence for at least two years unless his or her disability is of such a nature as to permanently incapacitate him or her for the performance of the duties of his or her position.

The decision is posted on the Internet at:

Friday, July 23, 2010

Applying the Rule of Three when there are tied scores involved

Applying the Rule of Three when there are tied scores involved
Source: A Google Alert received by NYPPL

A "Google Alert" received by NYPPL via the Internet concerned applying the Rule of Three set out in §61.1 of the Civil Service Law based on the following facts:

“I scored a 100 on a New York State civil service promotional exam. There were 7 openings for supervisor. Five candidates scored a 100. One of the four declined the promotional opportunity. The promotions were given to two eligibles who scored 100, four eligibles who scored 95, and one eligible who scored a 90.

“I am familiar with the "rule of three" and have researched New York State Civil Law, NYS CSL 61.1 in particular. Every example that is given refers to a situation in which one promotional opportunity is available. For example, if one eligible scores 100, one eligible scores 95, and one eligible scores 90, and all the other candidates score lower than 90, the rule of three means that the eligible who scored the 90 can be given the promotion over the two eligibles who scored higher that he/she did.

“However, I did not come across an example of how the rule of three would work when more than one position is available.”

NYPPL’s response:*

Considering the application of the Rule of Three on a “step-by-step basis,” the Rule of Three “works” as follows:

1. As to the five candidates receiving a score of 100, as one has declined, the four remaining eligibles are certified. Two are appointed, resulting in five vacancies yet remaining to which appointments may be made.**

2. The next group of candidates eligible for selection for appointment would consist of the two remaining candidates scoring 100 plus the four eligibles that received a score of 95, a total of six eligibles. The four eligibles attaining a score of 95 are appointed, leaving one vacancy yet to fill.

3. The next group of candidates eligible for selection for appointment would consist of the two candidates with a score of 100 and the one [or more] eligibles attaining a score of 90. A candidate who received a score of 90 on the examination may be lawfully selected, thereby filling the last available vacancy, without offending the Rule of Three.

Another example:

Ten candidates received scores of 100 while four achieved scores of 95 and one candidate had a score of 90. Again, one of the candidates attaining a score of 100 declines, leaving nine candidates with scores of 100 interested in being appointed. With seven vacancies available for appointment, the appointing authority may fill all, some or none of the vacancies but only the nine interested candidates attaining scores of 100 are "reachable" for appointment. Candidates receiving a score of less than 100 are not included on the list certified for appointment and thus are not part of the candidate pool. Why? Because once six appointments are made from among the nine eligibles attaining a score of 100, three eligibles remain available for selection to fill the seventh and last vacancy, thus triggering the Rule of Three.

If, however, a second eligible attaining a score of 100 were to decline the appointment, all four eligibles with a score of 95 would become eligible for appointment and they, together with the remaining eight eligibles have a score of 100, would constitute a pool of twelve individuals reachable for appointment and the appointing authority could select any seven of the twelve for the appointment.***

In other words, the number of candidates eligible for appointment at any particular point in time is a "moving target."

[NYPPL periodically post answers to selected general questions concerning public personnel law issues. Readers may e-mail their question to publications@nycap.rr.com]

* This analysis assumes that the "entire eligible list" consisted of ten eligibles: five candidates attaining a score of 100, four candidates attaining a score of 95 and one candidate attaining a score of 90. However, had there been more than one candidate attaining a score of 90, all the eligibles attaining a score of 90 would have been in the "candidate pool."

** N.B. An appointing authority is not required to use a mandatory eligible list and may, as a matter of discretion, elect not to fill the vacancy. On the other hand, an appointing authority may use a “non-mandatory” eligible list to fill a vacancy either on a permanent basis or on a provisional basis. However, if the appointing authority makes a provisional appointment “from a nonmandatory list,” the appointee may attain tenure in the position under certain circumstances [see Civil Service Law §65.4.] The seminal case that considered such an appointment situation is Matter of Roulette, 40 AD2d 611.

*** In some departments and agencies the appointing authority may elect, or pursuant to the terms of a collective bargaining agreement, be required to fill vacancies on the basis of the "Rule of the List" whereby individuals on an eligible list are appointed in the order of their rank or position on the list.

Tuesday, June 29, 2010

Provisional employee has no right to continued employment as a provisional

Provisional employee has no right to continued employment as a provisional appointee
Singletarly v NYC Dept. of Homeless Services, Supreme Court IA PART 27, Justice Gammerman, [Not selected for publication in the Official Reports]

In the Singletarly case Judge Gammerman sets out the basic rules concerning the rights of a provisional employee to continued employment as a provisional employee. In a nutshell, the court held that provisional appointments cannot, “with one rare exception inapplicable here,* ripen into a permanent appointment” and provisional employees have no civil service status and acquire no vested rights by virtue of their temporary or provisional service.

Singletarly was serving as a permanent Fraud Investigator, a position in the noncompetitive class. The New York City Department of Homeless Service provisionally appointed him to a vacant Associate Fraud Investigator position, a competitive class position, effective February 20, 1998.

On June 8, 1998 the Department reinstated him to his permanent title, Fraud Investigator. Claiming that this change constituted a “demotion,” thus entitling him to notice and a hearing within the meaning of Section 75 of the Civil Service Law, Singletarly sued.

Justice Gammerman dismissed Singletarly petition, noting that as his “appointment was a provisional appointment from the non-competitive class” and as he never took or passed a civil service examination** for any position or title, nor was he on or selected from an eligibility list” ... Singletarly “has no entitlement to any position or to any particular title.”

Describing Singletarly’s status as a provisional employee as that of “an employee at will” Justice Gammerman concluded that Singletarly “could be terminated from any position without good cause.”***

The court also briefly analyzed the status of a provisional employee, commenting that when there is no appropriate eligibility list available for filling a [wholly] vacancy in the competitive class the position may be filled on a provisional basis.

A provisional employee, however, has no expectation of tenure rights, including the right to notice or hearing prior to termination, or being given the reason for his or her termination. Thus, said the court, “a provisional employee may be terminated at any time without charges proffered, a statement of reasons given or a hearing held.”

* The “rare exception” referred to by the Justice Gammerman is probably the one leading to the decision in Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611. In Roulett the court held that the continued provisional employment of a person eligible for permanent appointment to the position when the individual is qualified for permanent appointment from a nonmandatory eligible list results in that individual being deemed permanent in the position upon the completion of the period of probation otherwise required [Section 64.5, Civil Service Law].

** Section 52 of the Civil Service Law authorizes the State Department of Civil Service to allow noncompetitive and labor class employees in the service of the State to compete in promotion examinations when such examinations are held in conjunction with open competitive examinations for the same title.

*** This, however, may not be entirely accurate with respect to Singletarly insofar as termination from his noncompetitive class position is concerned if he (1) is a veteran who served in time of war or is an exempt volunteer firefighter or (2) satisfies the requirements set out in Section 75.1(c) of the Civil Service Law. Further, a collective bargaining agreement negotiated pursuant to the Taylor Law may give persons not otherwise protected by Section 75 certain pre-termination due process rights.

Monday, June 21, 2010

Disciplinary probation

Disciplinary probation
Feliciano v Safir, Supreme Court, [Not officially reported]
Garnett v Safir, 253 A.D.2d 700, Motion for leave to appeal denied, 92 N.Y.2d 817

The Feliciano Case:

Although the specific events underlying the Feliciano case are but rarely encountered, the decision demonstrates that an employee’s “disciplinary probation status” may follow the individual to a new agency upon his or her transfer if the new employer wishes to condition the approval of the transfer on the continuation in such status.

Nelson Feliciano became a New York City police officer when the New York City Transit Authority Police Department [TAPD] was merged with the New York City Police Department [NYPD] in April 1995. Feliciano was serving a “dismissal probation” as a result of his settlement of disciplinary charges that had been filed against him by TAPD when the merger took place.

NYPD required Feliciano to sign a waiver allowing it to assume jurisdiction over the disciplinary charges as a condition of his transfer to NYPD.

NYPD dismissed Feliciano effective October 30, 1997 without holding a pre-termination hearing because of his alleged misuse of sick leave.

Feliciano had called in sick on April 30, 1997. When an officer from the NYPD’s Absence Control and Investigations Unit (“ACIU”) appeared at Feliciano’s house at about 2:00 p.m. the next day, “Feliciano was inexplicably not at home.”

Feliciano called the ACIU and represented to one of the ACIU officers that he had a valid medical pass which excused his absence from his home between the hours of 4:00 p.m. and 8:00 p.m. through May 1, 1997. Upon checking, ACIU learned that Feliciano’s medical pass expired on April 23, 1997. When confronted with this information, Feliciano apologized for his “misstatement” about the validity of his medical pass. Ultimately NYPD dismissed Feliciano.

Claiming that “[w]ithout the waiver, the disciplinary matter could have been resolved in a much more favorable manner and ... [he] would not have been on probation,” Feliciano sued. He asked the court to order his reinstatement with back salary and benefits. In addition Feliciano contended that [1] Safir acted arbitrarily and capriciously by dismissing him without benefit of a pre-termination hearing; [2] the penalty imposed was excessive; and [3] the decision to terminate him was made in bad faith.

Justice Cozier dismissed Feliciano’s petition, noting that “[u]nless there is a demonstration of bad faith or a constitutionally or statutorily impermissible purpose, the Commissioner has broad discretion to terminate probationary employees at any time, without stating a reason, and without a pre-termination hearing.”

The decision notes that Feliciano failed to comply with sick-leave regulations, an infraction which was subject to summary dismissal. As Feliciano had abused the NYPD’s sick leave regulations, which go directly to his ability to perform his job duties in a satisfactory manner, Justice Cozier concluded that because Feliciano was a probationer, a pre-termination hearing was not required and ruled Feliciano’s dismissal from his position with NYPD lawful under the circumstances.

The Garrett Case:

The facts in the Garrett case are more typical of the disciplinary probation situations.

Renee Garrett, another New York City police officer, was found guilty of various disciplinary charges and was suspended without pay for 60 days. She was also placed on a “one-year disciplinary probationary dismissal” effective January 24, 1997. On July 9, 1997, the Commissioner terminated her.

According to the decision, Garrett’s disciplinary probation was imposed after she was found guilty following allegations that [1] she was absent without permission from her assigned post; [2] she failed to perform her duties as directed; and [3] she engaged in an oral altercation and was discourteous to a superior officer.

Garrett sued, challenging the underlying disciplinary action and penalty and, in addition, contending that she was unlawfully terminated as a probationer and that she was dismissed in bad faith.*

The Appellate Division, First Department, upheld Garrett’s dismissal, commenting that “her termination within the probationary period was validly premised upon misconduct predating the commencement of the probationary period.” It noted that she had been found guilty of charges filed against her and that “the penalty of probationary dismissal does not shock our sense of fairness, particularly in light of [Garrett’s] less than exemplary service record.”

The court then said that Garrett’s probationary termination was justified by an incident during the probationary period. According to the decision, Garrett was “late in relieving another officer from her post.”

Accordingly, Garrett had no right to a pre-termination hearing under the circumstances. As to Garrett’s claim that her termination was made in “bad faith,” the Appellate Division simply noted that “there is no credible evidence to support [her] allegations.”

* Garrett had challenged both the disciplinary determination of January 24, 1997 and her probationary termination of July 9, 1997. Both actions were consolidated and considered in this appeal.

The text of the opinion is at:

If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/

Monday, June 14, 2010

Applying the confidentiality provisions of Civil Rights Law §50-a

Applying the confidentiality provisions of Civil Rights Law §50-a
Matter of Crowe v Kelly, 38 AD3d 435

Kieran Crowe, a New York City police lieutenant, was served with a notice of discipline setting out disciplinary charges and specifications based on allegations made by two of the sergeants he supervised. He entered pleas of not guilty to these charges and invoked his right to a hearing.

Crowe asked for “copies of specified confidential documents” concerning the two sergeants’ alleged misconduct unrelated to the disciplinary charges served on Crowe. When the Department refused to provide Crowe with this information, he asked Supreme Court to issue an order directing the Department to provide him with the records. Following an in camera* review of these records by the court, the Department was directed to produce certain records from the sergeants’ disciplinary files for use at Crowe’s administrative hearing.

The Appellate Division vacated the lower court’s order. It said that the records “…fell within the ambit of the confidentiality provisions of Civil Rights Law §50-a.”

According to the ruling, in order to overcome the confidentiality requirements applicable to the personnel records of police officers, firefighters and certain other civil servants, satisfying each the following requirements is critical:

1. The court to which such application for disclosure is made must conduct a hearing on the application, giving all interested parties an opportunity to be heard.

2. The party requesting disclosure has the initial burden of making “a clear showing of facts sufficient to warrant the judge to request records for review.”

At the conclusion of the hearing, if the requisite showing is made, the court can order that the records be sealed and delivered to it.

After conducting an in camera inspection, the court must make a finding that such records, or portions thereof, are “relevant and material” to the underlying action before it can release those records to the person requesting them.

The Appellate Division ruled that the documents in question have no direct bearing on any issue in Crowe’s disciplinary hearing except with respect to the credibility of the sergeants. The sole use of the sergeants’ disciplinary records would be as extrinsic evidence to contradict or refute any false or evasive testimony the sergeants may give when questioned on cross-examination regarding these prior acts of misconduct to impeach their credibility. This, said the court, falls squarely within the collateral evidence rule. But, noted the Appellate Division, Crowe, “as the sergeants’ supervisor, already has sufficient knowledge of the facts surrounding the prior acts of misconduct that can be adduced during cross-examination.”

Under these circumstances, the Appellate Division ruled that the “protections afforded to disciplinary records should not be set aside” and vacated the order issued by Supreme Court.

* Typically, an in camera review of documents is conducted by the judge in private rather than in open court.

The decisions is posted on the Internet at:

Friday, June 11, 2010

Employee’s placement on involuntary administrative leave alleged to constitute defamation and infliction of emotional distress

Employee’s placement on involuntary administrative leave alleged to constitute defamation and infliction of emotional distress
Clark v Schuylerville Cent. School Dist., 2010 NY Slip Op 04902, Decided on June 10, 2010, Appellate Division, Third Department

Linda Clark, a teacher at Schuylerville Central School District, was placed on administrative leave after showing the R-rated movie Macbeth to her 10th grade class “in violation of the [d]istrict's policy and procedures."].

Clark sued the School District and others, alleging defamation and intentional infliction of emotional distress.

Here the Appellate Division considered certain allegations made by Clark in the third of three appeals.

In the previous appeal the court said that the only surviving claim concerned Clark’s “cause of action for defamation” based on statements that Clark alleged were made by the principal of Schuylerville Junior/Senior High School, Thomas S. Martin. Clark had appealed a Supreme Court ruling that denied her motion to compel the District and Honeywell to give additional deposition testimony. The Appellate Division affirmed the Supreme Court’s ruling.*

In this, the third appeal, Clark asked the Appellate Division to vacate a Supreme Court order that granted the school district’s motion dismissing Clark's sole remaining cause of action for defamation, and denied Clark's motion for a default judgment based upon the alleged spoliation of evidence.** The Appellate Division affirmed Supreme Court’s rulings.

The Appellate Division explained that Clark’s defamation claim was based upon her assertion that Martin told the District's attorney that Clark had shown an "R" rated film to students in violation of the District's policies and procedures.

Martin, however, denied ever having made the statement alleged in the complaint and Clark, said the Appellate Division, failed to raise a triable issue of fact in that regard.

Notwithstanding Martin’s denial, however, the Appellate Division noted that even had Martin made such a statement, Clark conceded that in the absence of such statements having been made with malice, the doctrine of “qualified privilege” would have applied as “the communication occurred between persons with a common interest in the subject matter.”***

As to Clark’s claim that the statements she alleged had been made by Martin constituted “malice,” the Appellate Division commented that malice includes spite, ill will, knowledge that a statement is probably false or a reckless disregard for its falsity, and that "spite or ill will refers not to speaker’s general feelings about the individual, but to the speaker's motivation for making the defamatory statements"

On this issue, the court concluded that Clark “failed to present any competent evidence that the alleged statement was ‘made with an intent to harm [her,] . . . with a reckless disregard for [its] truth, . . . [or] solely because [Martin] disliked [her],’ thus she failed to demonstrate an issue of fact regarding the existence of malice sufficient to defeat the qualified privilege.

As to Clark’s seeking sanctions on based on her allegations of “spoilage of evidence,” the Appellate Division decided that the record did not support a conclusion that Martin improperly destroyed documents related to this action. Further, said the court, Clark’s “vague and speculative allegations regarding prejudice arising from the alleged destruction of documents do not support a claim of spoliation.”

* Clark v Schuylerville Cent. School District, 57 AD3d 1145. The Appellate Division sustained a Supreme Court ruling that denied Clark’s motion to compel District officials and Honeywell, the District’s attorney, to give additional deposition testimony. The court said that the District its burden of establishing that the attorney-client privilege attached as the school officials were seeking legal advice from their attorney relating to the management of the District's teaching staff, and that their conversations with their attorney were “confidential and private."

** “Spoliation of evidence” refers to the intentional or negligent withholding, or destruction of relevant evidence in a legal proceeding.

Under certain conditions even a false statement made by a superior concerning an employee may subject to what is termed a "qualified privilege" if the statement was made without malice in the course of a public officer's or employee's performance of his or her official duties. In such cases the employer may defend itself on the basis of "good faith" notwithstanding the fact that the statement is later shown to be false. In any event, the privilege is lost if the objected to material is given to an “unprivileged person” or to both privileged and unprivileged persons. [See, generally, Herlihy v Metropolitan Museum of Art, 214 A.D.2d 250.]

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_04902.htm

Wednesday, June 09, 2010

Writ of mandamus granted compelling employer to pay retiree for accrued vacation credits

Writ of mandamus granted compelling employer to pay retiree for accrued vacation credits
Matter of Sabatino v Suffolk County, 2010 NY Slip Op 04797, Decided on June 1, 2010, Appellate Division, Second Department

From July 3, 1984, until December 31, 2003, Paul Sabatino II served as Counsel to the Suffolk County Legislature. He retired as Chief Deputy Suffolk County Executive, after 30 years of service to Suffolk County in various positions as a "managerial exempt employee."

Upon his retirement Suffolk County paid Sabatino for accrued vacation in the amount of 630 hours. Sabatino, however, contended that he was entitled to be paid for an additional 444 hours of accrued vacation time,* or a total of 1074 hours of credit.

Sabatino argued that the additional 444 hours of accrued vacation credit was due him, having been "previously approved" by Suffolk County Resolution No. 659 on January 1, 1989. When the County declined to pay him for these additional 444 hours of vacation credit, Sabatino filed a petition in the nature of mandamus** seeking a court order compelling the County to pay him the additional amount he claimed was due him.

Supreme Court granted Sabatino’s petition; the Appellate Division affirmed Supreme Court’s action.

The Appellate Division said that Suffolk County Resolution No. 659 was subsequently enacted as Suffolk County Administrative Code §631-1(C). It provides that "Upon separation from County service by retirement, … an exempt employee shall be granted payment by the County for unused vacation time for all unused vacation time accrued prior to December 31, 1988, which has vested in such exempt employee as of that date and remains unused at the time of separation …."

In this instance, said the court, “it is clear from the record” that, prior to the effective date of §631-1(C), Sabatino, then a member of the "legislative personnel" of Suffolk County, was granted written approval by the Presiding Officer of the County Legislature to carry over the 444 hours of his vacation credits. Accordingly, the Appellate Division held that consistent with the terms of §631-1(C), “those 444 hours vested in him, and he was entitled to be paid for them upon his retirement from service with the County.”

The Court also commented that “While a municipality's interpretation of its local laws is entitled to great deference, and its interpretation will be upheld if it is not irrational, unreasonable, or contrary to governing language,” in situations where the issue involved is one of the “pure legal interpretation,” such deference is not required.

Ruling that Supreme Court properly determined that Sabatino satisfied the requirements of §631-1(C), the Appellate Division said that the County “may not impose additional requirements which are not present” in the Code.

* The cash value of the 444 hours of the unused vacation accruals claimed by Sabatino: $40,221.97.

** The writ of mandamus is one of number of the ancient “common law” writs and is granted by a court to compel an official to perform "acts that officials are duty-bound to perform." Other writs include the writ of prohibition – a writ issued by a higher tribunal to a lower tribunal to "prohibit" the adjudication of a matter then pending before the lower tribunal on the grounds that the lower tribunal "lacked jurisdiction;" the writ of injunction - a judicial order preventing a public official from performing an act; the writ of "certiorari," compelling a lower court to send it record of a case to the higher tribunal for review by the higher tribunal; and the writ of “quo warranto” [by what authority]. The Civil Practice Law and Rules sets out the modern equivalents of the surviving ancient writs.

The decision is posted on the Internet at:

Out-of-title work Article 78 petition dismissed for failure to exhaust remedy provided in the collective bargaining agreement

Out-of-title work Article 78 petition dismissed for failure to exhaust remedy provided in the collective bargaining agreement
CSEA v Groton Cent. School Dist., 2010 NY Slip Op 50982(U), Decided on June 7, 2010, Supreme Court, Tompkins County, Judge Robert C. Mulvey [Not selected for publication in the Official Reports]

CSEA complained that the library aide job assignments given to negotiating unit members Tracy Cooper and Elizabeth Hill violated the out-of-title prohibition contained in Civil Service Law Section 61.*

Cooper and Hill were appointed to non-competitive teacher aide positions by the Groton Central School District. CSEA filed a petition pursuant to CPLR Article 78 seeking a court order directing Groton to compensate both Cooper and Hill “for all work performed in the higher level 'Library Clerk' job title.”

The school district, seeking summary judgment, submitted a verified answer to CSEA's petition and raised a number of objections and defenses.

The record indicated that Cooper and Hill, who held non-competitive teacher aide positions with the Groton Central School District, were informed that they would be assigned to the library in their respective schools for the 2009-2010 school year and their duties were designed to support the Library Media Specialists there.**

The two major arguments were advanced by the school district in support of its action:

1. Cooper and Hill were teacher's aides and properly placed in their respective school libraries to assist the teachers in charge of those libraries and that their continued classification as a "Teacher Aide" after such placement was in accordance with law and was neither arbitrary nor capricious; and

2. Neither Cooper nor Hill exhausted their available administrative remedies inasmuch as "their respective complaints were not processed through the contract grievance procedure available to them."

Judge Mulvey found this latter argument persuasive, noting that CSEA was the collective bargaining representative for both Cooper and Hill and they are bound by the terms of the collective bargaining agreement CSEA negotiated on their behalf.

The court said that “the terms of the agreement appear to cover out-of-title work … and … the agreement establish a three-stage grievance procedure."

The record indicated that [a] none of the grievance procedures outlined in the agreement were initiated by either Cooper or Hill and [b] CSEA had not satisfactorily demonstrated that it initiated any grievance procedures. Under these facts, the Court concluded that CSEA's petition should be dismissed due the failure of Cooper and Hill to exhaust their available administrative remedies.

Further, said the Judge Mulvey, had the available administrative remedy been exhausted and the Article 78 action thereafter inititated, CSEA's petition would have been dismissed "on the merits."

Considering their alleged “out-of-title” work claims, Judge Mulvey said that Cooper’s and Hill’s continued classification as Teacher Aides was appropriate and should not be overturned, noting that the fact that “there is some overlap of duties performed by Cooper and Hill as teacher aides in the library and those of a ‘Library Clerk’ does not warrant the relief requested.”

According to the ruling, the record indicated that a significant portion of Cooper’s and Hill's duties involve supervision of children in the library as well as providing assistance to the Library Media Specialist. Such duties, the court said, are not included in the job description for a "Library Clerk."

Judge Mulvey ruled that the continued classification of Cooper and Hill as Teacher Aides has a rational basis and was neither arbitrary nor capricious and dismissed CSEA's Article 78 petition.

* Civil Service Law §61.2 sets out a prohibition against out-of-title work, providing that "No person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position in accordance with the provisions of this chapter and the rules prescribed thereunder. No credit shall be granted in a promotion examination for out-of-title work."

** Both employees started working in the libraries in September 2009 and their positions continued to be classified as non-competitive Teacher Aide “with the approval of the Civil Service Commissioner of Tompkins County.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_50982.htm

Rescinding a tenure appointment

Rescinding a tenure appointment
Shaffer v Schenectady City School Dist., USCA2, LEXIS 20463

If an appointing authority claims that it made a mistake in taking or confirming a personnel action, may it rescind the action or correct the error if the individual voices an objection? This is the underlying issue in the Shaffer case.

Commenting that relevant provisions of "Education Law admits of multiple readings" and that there is no relevant case law concerning the issue, the U.S. Circuit Court of Appeals, Second Circuit, has "certified the question" to the New York State Court of Appeals to determine whether a teacher granted tenure by a school board resolution that states it is to be effective at some future date is immediately entitled to the protections of Section 3020-a of the Education Law available to tenured personnel.

Special education teacher Sharon Shaffer was told by the Superintendent that she would not be recommended for tenure at the end of her probation period. On June 2, 1998 the School Board adopted the following resolution:

"In accordance with the recommendation of the Superintendent of Schools in his written report ... the person whose name is set forth below is hereby appointed on tenure effective on the date set forth below."

A list consisting of thirty-three names, including Shaffer's entitled "Recommendation For Tenure" was appended to the resolution. The "tenure list" indicated the respective tenure areas, and effective tenure dates of the persons listed. Shaffer's tenure date was listed as September 1, 1998.

Claiming that its June 2, 1998, resolution incorrectly included Shaffer's name, on June 17, 1998, the Board voted to rescinded her "tenure appointment." Its theory: on June 17, 1998, Shaffer "was not yet a tenured teacher, but one with merely an expectation of becoming tenured on September 1."

Shaffer sued the District claiming it violated her rights under 42 USC 1983 when it revoked her tenure and dismissed her from her position. The District, on the other hand, contends that Shaffer inclusion on the "tenure list" attached to its June 2, 1998 resolution "was merely the result of a clerical error when [her name] was mistakenly included on a list of teachers to whom tenure was to be granted" and it acted promptly to correct the error.

The critical issue to be determined: did Shaffer acquired tenure as a result of the Board's action on June 2, 1998, and, if so, was the subsequent revocation of that tenure was lawful?

In Gould v Board of Education, 81 NY2d 446, the New York State Court of Appeals held that a "tenured teacher has a protected property interest in [his or] her position and a right to retain it subject to being discharged for cause in accordance with the provisions of [the Education Law]."

Considering the Board's argument that it cannot be bound if its action was the result of an "error" and therefore Shaffer cannot claim any right to tenure, summarized below are two decisions concerning the impact of a mistake made in reporting or recording a personnel action:

1. The Commissioner of Education, in Longshore v Massena Board of Education, 32 CEd 12839, considered the status of a part-time teacher whose "personnel action sheet" described his appointment as "probationary from September 1, 1991 until September 1, 1992." Finding that "[t]he record supports [the District's] contention that the references in the personnel action sheet and notification of appointment form were erroneous," the Commissioner ruled that Willard M. Longshore "was not appointed to a probationary position." Accordingly, the District was not required to meet the notice requirements in Education Law Sections 3031 and 3019-a in order to terminate his employment.

2. In Moore v Smithtown Central School District, 116 AD2d 273, a "layoff seniority" case, the Appellate Division held that the fact that the district had, in error, included a communications skills teacher -- Moore -- on the "reading seniority list" was not controlling thus would not be relevant in determining Moore's preferred list status and reinstatement rights.

Timely reporting of “the accident” critical to claiming line of duty disability benefits

Timely reporting of “the accident” critical to claiming line of duty disability benefits
Matter of Sorano v Hevesi, 38 A.D.3d 1137

Debbie Sorano, a police officer for the City of Yonkers, filed an application for performance of duty disability retirement benefits based on an incident that occurred on January 18, 2001. Her application was rejected by the New York Employees’ Retirement System because she failed to file a notice or report of the incident with her employer within 30 days of the event as mandated by 2 NYCRR 331.2[b].*

Sorano sued, seeking a court order overturning the System’s determination pursuant to the “good cause” exception set out in the Regulation.

The Appellate Division affirmed the System’s decision, ruling that in order for Sorano to “have received the benefit of the good cause exception,” she had to show that she, or someone on her behalf, had filed a written report of the accident within 30 days of the event.

Sorano argued that she had, in fact, satisfied the 30-day requirement because she filed two medical reports with her employer within the relevant 30-day period.

The Appellate Division disagreed, holding that Sorano’s filing did not meet the requirements of the regulation because neither report “made any mention of a January 18, 2001 incident, much less set forth any of the specifics concerning the time, place, nature or cause thereof.”
Accordingly, the court ruled the System’s rejection of Sorano’s application for performance of duty disability retirement benefits for failure to provide the necessary written notice is supported by substantial evidence and will not be disturbed.**

* Retirement and Social Security Law §363-c [e] [b] (3) permits the “late filing” of a claim in the event “a failure to file notice has been excused for good cause shown as provided by rules and regulations promulgated by the comptroller.” The relevant regulation, 4 NYCRR 331.2 [b], provides, in pertinent part, that “good cause” means that the applicant, or someone on his or her behalf, filed a written notice with his employer setting forth the particulars of the time, place, nature and cause of the accident and the nature of the injury within 30 days of the event. The regulation further provides that “The applicant or applicant’s employer being unaware of the requirements of [§363(c)(b)(1)] of the Retirement and Social Security Law or this [regulation], regarding timely filing of notice of accident, shall not constitute good cause for failure to file timely notice.”

** Similar requirements control with respect to employees seeking disability benefits pursuant to §63(c)(b)(1) of the Retirement and Social Security Law.

The decision is posted on the Internet at:


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