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N.B. §22 of the New York State's General Construction Law, in pertinent part, provides that “Whenever words of the masculine or feminine gender appear in any law, rule or regulation, unless the sense of the sentence indicates otherwise, they shall be deemed to refer to both male or female persons.” NYPPL applies this protocol to individuals referred to in a decision self-identifying as LGBTQA+.

March 26, 2010

Dismissal from a position because the individual does not possess a valid required license or certification is not a disciplinary termination

Dismissal from a position because the individual does not possess a valid required license or certification is not a disciplinary termination
Matter of New York State Off. of Children & Family Servs. v Lanterman, 2010 NY Slip Op 02432, Decided on March 25, 2010, Court of Appeals
[Decided with Matter of New York State Office of Alcoholism and Substance Abuse Services v Victor Ortiz]

These two cases involve State employees who were dismissed from their respective positions because they lacked the necessary licenses or credentials. Both sought to arbitrate whether their terminations constituted disciplinary actions.

Citing Matter of Felix v New York City Dept. of Citywide Admin. Servs. (3 NY3d 498 [2004]), the Court of Appeals said that “the dismissals clearly were not disciplinary, and the employees' assertion that they were does not have a relationship with their collective bargaining agreement sufficient to justify arbitration of the issue.”

Lauren Lanterman was a teacher employed by the Office of Children and Family Services (OCFS); Victor Ortiz was a counselor employed by the Office of Alcoholism and Substance Abuse Services (OASAS). Both were members of the New York State Public Employees Federation, and their rights were governed by the same collective bargaining agreement.

Lanterman was required to have a teaching certificate appropriate to her specialty; Ortiz was required to be a Credentialed Alcoholism and Substance Abuse Counselor (CASAC). Their respective credentials expired and both failed to obtain new ones. As a result, both were terminated from their respective positions.

The Court of Appeals said that its decision in Felix was relevant in deciding these appeals. In Felix, a New York City employee was dismissed for failing to establish City residence, which was a prerequisite to his employment under a local law. Although Felix sought a hearing under Civil Service Law § 75, the Court of Appeals rejected his claim, holding that the disciplinary provisions of the Civil Service Law did not apply to him.

The court explained that "while an act of misconduct invokes Civil Service Law §75 disciplinary procedures," an employee's failure to meet a residence requirement "is separate and distinct from an act of misconduct." In other words, issues involving job performance, misconduct or incompetency are subject to Civil Service Law disciplinary procedures while meeting a qualification for continued employment in ones position is not.*

The dismissals of Lanterman and Ortiz resulted from their failure to meet qualifications of employment — a teaching certificate in Lanterman's case, a CASAC credential in Ortiz's and thus the terminations were not disciplinary in nature.

Harvey Randall Comment: In situations where the appointing authority believes that the employee does not possess a valid required license, certificate or other requirement necessary to lawfully perform the duties of his or her position, providing the individual with a reasonable opportunity to produce the required credential would appear to satisfy the minimum requirements for administrative due process.

* As to requiring the possession of a license or similar credential, in Martin ex rel Lekkas, 86 AD2d 712, the Appellate Division held that only where performing the duties of the position required the incumbent to be licensed may the lack of such a license be grounds for termination. Lekkas, an Assistant Clinical Physician, did not hold a valid license to practice medicine while he was serving in a position that did not involve Lekkas’ practicing medicine. However, an amendment to the Education Law required persons previously appointed as physicians to obtain a license to practice medicine. Lekkas had been appointed to the position prior to the amendment but he had not obtained a New York State license to practice medicine within the prescribed time period. As Lekkas’ duties did not involve the practice of medicine, the Appellate Division ruled that he was not required to possess such a license.

Preparing a defense to disciplinary charges

Preparing a defense to disciplinary charges
Guastafeste v NYC Dept. of Sanitation, App. Div., 1st Dept., 282 A.D.2d 398

When an employee is served with disciplinary charges, he or she is entitled to be given information concerning such charges sufficient to permit his or her adequately preparing his or her defense [Pachucki v Walters, 56 AD2d 677]. Further, case law has long held that an employee may not be found guilty of acts of misconduct or incompetence that have not been charged [Shuster v Humphrey, 156 NY 231].

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The Guastafeste case focused on the issue of providing the employee with sufficient information concerning the charges in order for him or her to be able to prepare his or her defense so that it cannot rightfully be claimed that the individual was found guilty acts or omissions that were not charged.

Joseph Guastafeste, a New York City Department of Sanitation employee, was found guilty of misconduct and suspended him for 30 days without pay following his involvement in an accident while operating a department motor vehicle.

Guastafeste appealed, contending that the charges of misconduct filed against him by the department did not specifically charge him with having "caused the accident by negligently losing control of his vehicle." Accordingly, he argued, he had not been given an adequate opportunity to prepare his defense against this allegation.

The Appellate Division decided that it was clear from the specifications set out in the charges filed against him that Guastafeste was being charged with "negligently operating his vehicle." This, said the court, meant that Guastafeste had been given sufficient notice of this charge so as to enable him to adequately prepare his defense.

As to the penalty imposed -- 30 days suspension without pay -- the Appellate Division ruled that "for the misconduct proved against [Guastafeste], some of which involved violations of Department of Sanitation safety rules, [such a penalty] does not shock the judicial conscience and accordingly may not be disturbed."

In contrast, in Smith v Davis, a case involving alleged violations of the Americans With Disabilities Act and other civil rights law violations, decided by the U.S. Circuit Court of Appeals, Third Circuit on May 07, 2001, the court found that the explanation provided by Luzerne County [NJ] for terminating county employee Rodney Smith -- violation of its drug and alcohol policy -- did not tell Smith what he did to bring about his termination in sufficient detail as to justify the district court's summarily dismissing his complaint.

The court said that there "does not seem to be anything in the record specifying precisely what aspect of this policy Smith was found to have violated. While the County's brief contended that Smith was fired for absenteeism, his supervisors' declarations did not mention absenteeism as the basis for his termination. The court also noted that the County's "drug and alcohol policy contains no provision about absenteeism or sick leave that applies to Smith's termination."

According to the Circuit Court, "[w]hile absenteeism may have been what the [County] had in mind when they terminated him, there is a genuine issue as to whether this reason was legitimate or pretextual, particularly since there is evidence that Smith performed his duties to the apparent satisfaction of his supervisors for over six years and carried a case load substantially higher than his coworkers."

The Circuit Court noted that while Smith may have been fired for some other legitimate reason related to alcohol use, it would be improper to grant the County's motion for summary judgment without specific evidence that Smith was fired for such a reason.

A related point involving summary termination pursuant to a disciplinary grievance settlement is clearly illustrated in ruling by the Appellate Division in Taylor v Cass, 505 NYS2d 929. Under the terms of the disciplinary settlement Taylor was subject to termination without any hearing if, in the opinion of his superior, his job performance was adversely affected by his consumption of alcohol. Taylor was subsequently terminated from his position for sleeping on the job. The court pointed out that the reason given for summarily terminating Taylor -- sleeping on the job -- was not authorized by the settlement agreement and directed his reinstatement with back pay and benefits.

Sometimes an employee will demand "a bill of particulars" requiring the employer to set out the charges and specifications filed against the individual in greater detail. Although Education Law Section 3020-a 3 c(iii)(C) indicates that an administrator or teacher has the right to demand a "bill of particulars" concerning the charges and specifications filed against him or her, no similar provision is included in Section 75 of the Civil Service Law.

In some instances the disciplinary grievance procedure set out in a collective bargaining agreement allows the employee to demand a "bill of particulars."

Police chief held to have qualified immunity with respect to First Amendment violation allegations

Police chief held to have qualified immunity with respect to First Amendment violation allegations
Gubitosi v. Kapica, CA2, 154 F.3d 30

After a local newspaper reported that Police Officer Lori Gubitosi of the Town of Greenburgh was a lesbian, Gubitosi became reluctant to perform strip searches on female prisoners. She feared charges of improper sexual conduct or a civil rights suit.

The problem came to a head on May 31, 1994, when she refused to obey her superior officer’s order to perform a strip search of a female prisoner. This resulted in Gubitosi’s agreeing to the forfeiture of five days’ pay as an “administrative penalty,” and waived her right to a disciplinary hearing.

The following month Gubitosi received two separate personnel evaluation reports criticizing her job performance. In response, she submitted two memoranda objecting to various police practices on June 28, 1994.

The practices criticized by Gubitosi included allegations that police officers (1) attended “bagel parties” and birthday parties when they should have been performing police work at their assigned posts; (2) abandoned their patrol duties to take extended breaks at firehouses; and (3) drank and used obscene language while off-duty.

On July 22, 1994, Gubitosi was ordered by a superior officer to strip search three female detainees. Although she reported to her superior that she had done so, a subsequent search revealed contraband in the brassiere of one of the detainees. As a result of Chief John A. Kapica’s investigation, Gubitosi was suspended and disciplinary charges were filed against her, including allegations that she disobeyed a lawful order, failed to perform a lawful duty and knowingly made a false report. Found guilty, Gubitosi was dismissed from the force.

According to the decision, Chief Kapica had interviewed Gubitosi, who maintained -- both in the interview and in her written statement -- that she had strip searched the women. The disciplinary hearings were held between December 1994 and June 1995 under the Westchester County Police Act Sections 7 and 8 [Chapter 104 of the Laws of 1936, as amended]. Gubitosi was represented by an attorney but she did not testify.

Gubitosi sued, contending that her civil rights and her rights to free speech and due process had been violated by Chief Kapica, among others. She alleged that she was fired in retaliation for her criticisms of police practices.

Chief Kapica claimed he was entitled to qualified immunity because he lodged the charges against Gubitosi because of her insubordination and not because of her complaints regarding police practices, and that Gubitosi offered no affirmative evidence to counter the Chief’s assertion that he “didn’t retaliate.” Although a federal District Court justice decided that Chief Kapica was not entitled to a qualified immunity with respect to Gubitosi’s free speech claims, this ruling was reversed by the U.S. Court of Appeals, 2nd Circuit.

While Gubitosi argued that the short period of time between the date she submitted her criticisms and the date she was served with disciplinary charges constituted evidence of retaliation, the Circuit panel said that “it is simply impossible to miss the significant intervening events between these two dates, events corroborated by written statements and testimony given by fellow police officers and the three female detainees: plaintiff disobeyed the order to perform the strip searches, lied about it in the post-offense interview, and gave a false written statement about it.”

Finding that “the total absence of evidence of retaliation offered by [Gubitosi] is fatal to her case,” the Court ruled that Chief Kapica was entitled to a qualified immunity with respect to Gubitosi’s First Amendment claims. According to the Court, “[e]ven if we assume all the facts in the record “that the trial judge [would have] concluded the jury might find in plaintiff’s favor ..., we conclude that [Gubitosi] has failed to identify affirmative evidence showing that Kapica retaliated against her for the exercise of her First Amendment rights. As a result, his qualified immunity defense is established as a matter of law.”

Union newsletter articles alleged to be libelous

Union newsletter articles alleged to be libelous
Santiago v United Federation. of Teachers, Local 2, 39 A.D.3d 284

Manuel Santiago, an assistant principal, sued a teacher who served as a union representative alleging that two articles authored by the teacher that were published in a teacher union’s newsletter were libelous.

The articles were critical of Santiago’s “handling of certain disciplinary and school safety issues,” and accused him of “pocketing illegal per session money in violation of Chancellor’s Regulation C-175.” The articles indicated that after being told by the principal to stop working on Saturdays, Santiago “continued to punch in and collect money . . . [b]ecause an important person in the Superintendent’s Office has conspired with [Santiago] to take money that is designated for the instruction of our children and funnel it into [Santiago’s] bank account.”

The Appellate Division said that the teacher’s statements in her capacity as a union representative “criticizing [Santiago’s] professional competence and honesty,” fall within the broad definition of a “labor dispute” under federal law, and therefore are not subject to state law defamation claims in the absence of a showing of actual malice, i.e., that the writer “published the statements while highly aware that they were probably false.”*

The court also held that “the offending statements were qualifiedly privileged under state law because of the common interest shared by the union and the employer in preventing mistreatment of teachers in the workplace and ensuring compliance with the Chancellor’s rules.”
In order to overcome the privilege, Santiago had to establish either constitutional or common-law malice on the part of the writer of the article, said the court.

The Appellate Division concluded that “no issues of fact exist as to [allegations of] constitutional malice,” and, with respect to common-law malice, similar reasons show that “no issues of fact exist as to whether the [author] spoke out of spite or ill will” insofar as common-law malice is alleged.

Even if the teacher held some grudge against Santiago, said the Appellate Division, “it remains undisputed that the complaints about Santiago came from the teachers themselves.”

The Appellate Division affirmed the decision of Supreme Court Judge Yvonne Gonzalez granting the United Federation of Teacher Local 2’s motion for summary judgment dismissing Santiago’s complaint.

* The federal National Labor Relations Act does not cover public employees in New York State. In addition, Civil Service Law Section 209-a.6, a subdivision that is part of the Taylor Law, provides that “In applying this section, fundamental distinctions between private and public employment shall be recognized, and no body of federal or state law applicable wholly or in part to private employment, shall be regarded as binding or controlling precedent.”

Due process in administrative hearings requirements

Due process in administrative hearings requirements
Goohya v Walsh-Tozer, App. Div., 292 A.D.2d 384, motion for leave to appeal denied, 99 N.Y.2d 551

The Goohya decision sets out a number of pitfalls that an administrative hearing officer must avoid if his or her determination and recommendation is to survive judicial review.

Mary Ann Walsh-Tozer, Rockland County Commissioner of Mental Health, filed disci­plinary charges against Indrakumar Goohya. Commissioner Walsh-Tozer subsequently adopted the findings and recommendations of the disciplinary hearing officer and dis­missed Goohya from his employment as a psychiatrist with the Rockland County De­partment of Mental Health. Goohya appealed.

The Appellate Division, Second Department, annulled Walsh-Tozer's determination and returned the matter to the Department "for a new hearing before a different Hearing Officer and thereafter for a new determination" by the Commissioner.

The court said that "[d]ue process considerations mandate that findings of fact be made in a manner wherein the parties are assured that the decision is based on evidence in the record, uninfluenced by extralegal considerations, and that both an intelligent challenge by a party aggrieved by the determination and an adequate judicial review are possible," citing Simpson v Wolansky, 38 NY2d 391.

The problem here, said the court, was that:

1. Under the guise of making findings of fact, the Hearing Officer merely reiterated the parties' testimony and other evidence submitted at the hearing.

2. Other than the Hearing Officer rejecting one or two portions of the testimony of Goohya's expert, there is no indication of the evidence he relied upon in reaching his ultimate conclusions in deciding the matter.

3. After setting forth all of the evidence in the record, the Hearing Officer merely stated, in conclusory fashion, that each charge was supported by substantial evidence.

Acknowledging that "while it is clear that strict rules of evidence are not applicable to administrative hearings," the Appellate Division pointed out that an administrative determination may be annulled "where prejudice so permeates the underlying hearing as to render it unfair."

Here, said the court, the Hearing Officer "committed errors which so prejudiced Goohya that a new hearing is warranted."

Among the faults attributed to the Hearing Officer by the court was the Hearing Officer's rejection of Goohya's request for disclosure of the medical records of the two patients who testified at the hearing, despite the fact that the Department had access to, and used, these same records at the hearing.

According to the decision, the Hearing Officer had determined that the records were confidential. On this issue -- the confidentiality of patient records -- the Appellate Divi­sion said that "The need for maintaining the confidentiality of the patients' records must be balanced against the concern for [Goohya's] rights and any adverse impact on his reputation, live­lihood and future employment. Clearly, confidentiality, on these facts, must yield to [Goohya's] right to conduct an effective defense to the disciplinary action ... [t]he confi­dentiality accorded the hospital records of mental patients by the Mental Hygiene Law is not absolute. In a proper case, it must yield to the needs of justice."

Presumably the Appellate Division would apply the same principle and criteria to other types of "confidential records" in appropriate situations.

The Appellate Division also noted that the Hearing Officer ruled that while Goohya's witness qualified as an expert in psychiatry, "his testimony would be accorded dimin­ished weight and he would not in fact be given expert status because he had never before testified in an administrative proceeding." In the words of the Appellate Division: "this ruling has absolutely no basis in law.”

In addition, the court faulted the Hearing Officer because he "failed to indicate in his report what weight, if any, he gave to Goohya's expert's testimony."

The Appellate Division concluded that these errors, together with the failure of the Hearing Officer to make findings of fact, prevented it from properly reviewing the final administrative determination by the Commissioner.

The Appellate Division decided that granting Goohya's appeal and annulling the discipli­nary determination was warranted.


As a coda to the initial litigation summarized above, following the remand and consideration of the matter by a new hearing officer, new litigation was initiated challenging the Commissioner’s decision rejecting the new hearing officer’s recommendation.

Commissioner Walsh-Tozer found Goohy guilty of patient abuse, professional misconduct, and sexual harassment. The penalty imposed: termination from employment with the Rockland County Department of Mental Health.

The Appellate Division sustained the Commissioner’s action [33 A.D.3d 798, leave to appeal denied, 8 N.Y.3d 806].

Reviewing the disqualification of an applicant pursuant to Civil Service Law §50.4

Reviewing the disqualification of an applicant pursuant to Civil Service Law §50.4
Hirst v Agrelo, Supreme Court, New York County Part 50E, Index #403004/06, Decided March 16, 2007, Judge William A. Wetzel [Not published in the Official Reports]

Martha K. Hirst, as Commissioner of the New York City Department of Citywide Administrative Services [CAS] sued the New York City Civil Service Commission after the Commission certified Joshua Agrelo as eligible for appointment as a police officer with the New York City Police Department.

Agrelo had been disqualified for appointment by CAS based on his arrest record. CAS concluded that Agrelo’s arrest record “demonstrated poor judgment and blatant disregard for the law and therefore [he] lacks the moral character required to be a police officer.” The Police Department “asserted that good moral character is a basic requirement for the position of police officer,” a view that Judge Wetzel said “cannot be disputed."*

At the §50.4 hearing,** Agrelo offered a “rationale or explanation for each of the offenses” and said that he always wanted to become a police officer. The City’s Civil Service Commission, after reviewing the record and the arguments advanced by Agrelo and CAS, found that Agrelo was “a credible and honest witness.”

Conceding that Agrelo had pled guilty to three violations but had no misdemeanor or felony convictions, the Commission concluded that he possessed the requisite character to be a New York City police officer.

While the CAS did not challenge the authority of the Civil Service Commission to review its decisions with respect to the eligibility of candidates, it argued that the Commission could only set aside CAS’s determination if it concludes that CAS’s decision was not rationale.

Judge Wetzel, agreed, reversing and setting aside the Commission’s determination that Agrelo had the required character to be a police officer. The court explained:

In this case, the [Civil Service Commission] takes no issue and indeed confirms [Agrelo’s] arrest and conviction record. While it gratuitously finds him to be credible, it fails to provide any explanation for the seemingly obvious fact that this arrest record, conceding the rationale provided by [Agrelo], does not demonstrate the requisite character to be a police officer.

Credibility was not the issue. The issue was whether the undisputed facts, i.e. [Agrelo’s] actual arrests and pleas, are disqualifying, an issue not addressed by the [Commission].

* According to Judge Wetzel’s decision, Agrelo’s record included being arrested and charged with Patronizing a Prostitute, who was, in fact, an undercover police officer, Robbery in the Second Degree, a felony, and Assault in the Second Degree, a felony, Robbery in the Second Degree, a felony, Assault in the Second Degree, a felony, and Sexual Abuse in the Third Degree. He ultimately pled guilty to lesser offenses to three of the charges.

** §50.4 of the Civil Service Law provides, in pertinent part: No person shall be disqualified pursuant to this subdivision unless he has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification
Demanding a letter of apology claimed to impinge on the individual’s constitutionally protected speech
Wildman v Marshalltown School District, CA 8, 249 F.3d 768

The general rule is that a public employee's right to free speech under the First Amendment on the job is protected with respect to speech involving matters the public interest. In contrast, a public employee's speech concerning matters concerning his or her personal interests is not protected by the First Amendment.

In considering "free speech cases" involving public employees the courts have sometimes commented that "matters of public interest" are to be distinguished from "matters in which the public is interested."

In Connick v Myers, 461 US 138, the US Supreme Court indicated that federal courts usually will not consider retaliation allegations based on an employee's claim of free speech where "only matters of a personal interest" to the employee, in contrast to "matters of public concern," are involved. The US Circuit Court of Appeals, Eighth Circuit, has apparently applied this rationale in deciding the Wildman case.

The Circuit Court ruled that the school's insisting that Rebecca Wildman apologize to her teammates for writing a letter to them criticizing her coach as a condition to her reinstatement to a school athletic team did not violate her First Amendment rights.

Wildman, than a sophomore at Marshalltown High School in Marshalltown, Iowa, was a member of the school's basketball team. When her expectation of being selected to play on the girls varsity basketball team did not materialize, she wrote a letter to her teammates that included the following sentence:

It is time to give [the coach] back some of the bullshit that [the coach] has given us.

School officials said that the letter was disrespectful and insisted that Wildman apologize to her teammates. Given twenty-four hours to comply, Wildman was advised that if she did not do so, she would not be allowed to return to the team. Because Wildman refused to apologize she was not allowed to practice with the team or play in the season's remaining six games.*

Essentially Wildman argued that the First Amendment bars the school from disciplining her for distributing a letter, which was a personal communication to other students containing her personal expression. Citing the Supreme Court's decision in Tinker v Des Moines Independent Community School District, 393 US 503, the Circuit Court acknowledged that students do not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate."
In Tinker, high school students attempted to wear black armbands on school property to symbolize their protest against the Vietnam War.

The Supreme Court struck down efforts by school authorities to discipline the students for this expression of opinion by suspending the students from school until they returned without their armbands. The court said that "undifferentiated fear or apprehension of disturbance is not enough to overcome the right to freedom of expression."

However, the court observed that "this right to express opinions on school premises is not absolute." It said that it was well within the parameters of the school officials' authority to prohibit the public expression of vulgar and offensive comments and to teach civility and sensitivity in the expression of opinions.

The court cited Bethel School District No. 403 v Fraser, 478 US 675, as its authority for this view. In Bethel the Supreme Court sustained the punishment of a student for a speech laden with sexual innuendoes at a mandatory school assembly.

The Circuit Court noted that Marshalltown had a handbook for student conduct as well as a Marshalltown Bobcat Basketball Handbook. These materials were distributed to Wildman and her teammates at the start of the season. Both handbooks indicated that "disrespect and insubordination will result in action at the coach's discretion."

The court's conclusion: Wildman's letter, containing the word "bullshit," in relation to other language in it and motivated by her disappointment at not being selected to play on the varsity team, constitutes insubordinate speech toward her coaches.

Deciding that Wildman's speech called for an apology, presumably because her speech was based on "personal interests" -- her not being selected for the varsity basketball team -- rather than a matter of public interest, the Circuit Court ruled that she failed to demonstrate that her Constitutional right to free speech was violated by the school district's action.

* Wildman and her family moved to another school district after the school year ended.

Appeal of Deborah Cooper from action of the Board of Education of the Hempstead Union Free School District

Appeal of Deborah Cooper from action of the Board of Education of the Hempstead Union Free School District
Commissioner of Education Decision No. 15,708

The Commissioner dismissed Deborah Cooper’s appeal claiming that the school district should have appointed her to a Coordinator of Student Support Services position while she was on a preferred eligible list.

The Commissioner said that Cooper’s appeal must be dismissed for a number of technical reasons, including her failure to name a necessary party in her appeal.*

As to the merits of Cooper’s appeal, the Commissioner said that even if the appeal were not dismissed on procedural grounds, it would be dismissed on the merits, noting that Education Law §3013[3][a], in pertinent part, provides:

If an office or position is abolished or if it is consolidated with another position without creating a new position, the person filling such position at the time of its abolishment or consolidation shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled without reduction in salary or increment, provided the record of such person has been one of faithful, competent service in the office or position he or she has filled.

Here, said the Commissioner, the School District abolished Cooper’s position effective June 30, 2007. Under the Education Law, therefore, Cooper is entitled to appointment only to a position that existed on June 30, 2007 or thereafter. Because the position to which Cooper seeks to be appointed was created and filled by August 2006, she is not entitled to appointment thereto.

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* A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

March 25, 2010

Penalty imposed remanded to appointing authority for reconsideration after court vacates findings of guilt with respect to 2 of 5 disciplinary charges

Penalty imposed remanded to appointing authority for reconsideration after court vacates findings of guilt with respect to 2 of 5 disciplinary charges
Matter of Berger v Board of Fire Commissioners of the Jericho Fire District., 2010 NY Slip Op 02138, Decided on March 16, 2010, Appellate Division, Second Department

The Board of Fire Commissioners of the Jericho Fire District a hearing officer finding Michael Berger guilty of five charges of misconduct and, or, incompetence and terminated his membership as a Volunteer Firefighter Captain with the Jericho Fire District.

Berger appealed and the Appellate Division vacated so much of the determination as found Berger guilty of charges five and six and as imposed a penalty is annulled. The court then dismissed two of the five charges and remitted the matter to the Board of Fire Commissioners for a new determination as to the penalty to be imposed on the petitioner on the remaining three charges.

The three remaining charges, all of which concerned events at one emergency call scene, involved Berger’s violation of his Chief's orders that members wear the Department-issued protective clothing, disobeyed a direct order from his Chief at the call scene, and left the call scene without authorization from a superior officer. The Appellate Division said that the Board’s finding that Berger was guilty of these charges was supported by substantial evidence in the record.

In contrast, the Board's determination that the petitioner was guilty of charges five and six, which relate to an incident on June 19, 2007, is not supported by substantial evidence in the record, as the petitioner was not on duty at the time of that incident.

Accordingly, it annulled so much of the Board’s determination that found Berger guilty of those two charges and remitted the matter to the Board for a new determination as to the penalty to be imposed on Berger with respect to the surviving charges.

Writ of prohibition not available to bar an executive action such as conducting an investigation

Writ of prohibition not available to bar an executive action such as conducting an investigation
Matter of Doe v Cuomo, 2010 NY Slip Op 02143, Decided on March 16, 2010, Appellate Division, Second Department

“John Doe” initiated a CPLR Article 78 action seeking a writ of prohibition* to bar NYS Attorney General Andrew M. Cuomo from proceeding with an investigation. Doe claimed that Cuomo’s investigation violated “an immunity agreement.”

Supreme Court dismissed Doe’s petition and the Appellate Division affirmed the lower court’s action.

The Appellate Division explained that the “extraordinary remedy of prohibition” may only be granted if the petitioner establishes a clear legal right to such relief. In this instance, said the court, the Attorney General is performing an executive act – an investigation – rather than acting in a quasi-judicial capacity.

A writ of prohibition is only available where a judicial or quasi-judicial action is involved. It is not available, said the court, to a petitioner seeking to “prohibit” legislative, executive, administrative, or ministerial actions.**

Further, prohibition is not available even with respect to judicial or quasi-judicial actions “if an adequate alternative remedy exists.”

* In addition to the writ of prohibition, Article 78 of the Civil Practice Law and Rules sets out the modern versions of three other "ancient writs" sometimes encountered in litigation involving a public entity: the writ of quo warranto [by what authority]; the writ of "mandamus" [seeking a court order directing an official to perform a ministerial act in contrast to a discretionary act] and the writ of "certiorari" [seeking an order by a superior court to a lower tribunal demanding the record of a particular case].

** In Town of Huntington v NYS Division of Human Rights, 82 N.Y.2d 783, the Court of Appeals said that the extraordinary writ of prohibition is available to address "whether [a] body or officer proceeded, is proceeding or is about to proceed without or in excess of [its] jurisdiction.” According to the ruling, "prohibition may be maintained solely to prevent or control a body or officer acting in a judicial or quasi-judicial capacity from proceeding or threatening to proceed without or in excess of its jurisdiction.”

Employee terminated after being found guilty of misconduct following his conviction of crimes deemed to reflect unfavorably upon employee’s character

Employee terminated after being found guilty of misconduct following his conviction of crimes deemed to reflect unfavorably upon employee’s character
Matter of Taylor v City of Glen Cove, 2010 NY Slip Op 02157, Decided on March 16, 2010, Appellate Division, Second Department

Arnold Taylor, a Supervisor of Sanitation in the Department of Public Works of the City of Glen Cove, pleaded guilty to the crimes of criminal sale of a controlled substance in the fifth degree, a class D felony, and criminal possession of a weapon in the fourth degree, a class A misdemeanor. He was brought up on disciplinary charges pursuant to Civil Service Law §75.

Taylor was found guilty of two charges of misconduct: (1) committing an offense which reflected unfavorably upon his moral character and brought discredit to the City; and (2) pleading guilty to a class D felony and a class A misdemeanor. The penalty imposed: termination.

Taylor appealed the administrative disciplinary determination and the penalty imposed. The Appellate Division dismissed his appeal, commenting that "In order to annul an administrative determination made after a hearing, a court must conclude that the record lacks substantial evidence to support the determination."

Here, said the court, Taylor’s conviction of criminal sale of a controlled substance in the fifth degree and criminal possession of a weapon in the fourth degree constituted misconduct and his conviction constituted substantial evidence to support the appointing authority’s determination.

Citing Matter of Pell, 34 NY2d, 222, the Appellate Division said that Taylor’s termination was not so disproportionate to the offense as to be shocking to one's sense of fairness.
Employer seeks to terminate employee following her return to work after six month absence without explanation
NYC Dept. of Sanitation v Moore, OATH Index 1035/10

The New York City Department of Sanitation sought to terminate Sabrina Moore, a clerical associate, who had been absent without leave for more than six months.

Moore had returned to her job claiming that her absence was due to medical problems.

OATH Administrative Law Judge Joan Salzman found that Moore's complete failure to inform the Department of her medical status and the absence of any sufficient supporting documentation of medical treatment during the AWOL period, supported imposing termination from employment as a penalty.

Termination of employment recommended for employee found guilty of harassment of fellow employee based on co-worker’s religion

Termination of employment recommended for employee found guilty of harassment of fellow employee based on co-worker’s religion
Dep't of Parks & Recreation v. Mullusky, OATH Index No. 2041/09

Administrative Law Judge John Spooner found that park worker Chris Mullusky had harassed and mistreated a Jewish co-worker because of the co-worker’s religion in violation of the City's Equal Employment Opportunity policy.

Mullusky had displayed swastikas on his locker, and participated in a Nazi skit in front of the Jewish co-worker. The worker also taunted the same co-worker with anti-Semitic insults, including comments about putting the co-worker and his family in an oven.ALJ Spooner also found that the worker had made false statements to an investigator and had attempted to intimidate a witness.

Given the “appalling nature of the misconduct and the worker's past disciplinary history, ALJ Spooner recommended that Mullusky be terminated from his position

Credibility determinations in a disciplinary hearing

Credibility determinations in a disciplinary hearing
Swakeen v New York City Health & Hospitals Corp., 39 A.D.3d 287

Bensam Swakeen, an operating room technician employed by New York City’s Health and Hospitals Corporation [HHC], was found guilty of misconduct and suspended for 30 days without pay. He appealed, seeking to annul the Corporation’s Personnel Review Board affirming the determination.

The Appellate Division decided that the administrative determination was neither irrational nor arbitrary and capricious as there was evidence in the record that Swakeen was absent from work for almost two hours and submitted altered documents during the fact-finding hearing in an effort to prove his presence during an operation.

The court said that the Review Board “properly concluded that the administrative law judge’s credibility determinations should not be disturbed, since ‘credibility determinations are the province of the Hearing Officer.’”

Determining if a grievance was timely filed

Determining if a grievance was timely filed
Social Services Employees Union, Local 371 v City of New York, 47 AD3d 498

The Appellate Division, First Department, affirmed Supreme Court’s confirmation of an arbitrator’s award dismissing the Union’s grievance on the grounds that it was untimely.
Local 371 contended that the arbitrator had exceed his powers when he dismissed its grievance, arguing that the collective bargaining did not give arbitrators any authority to determine if a grievance had been timely filed.

The Appellate Division, in dismissing Local 371’s appeal, noted that the union failed show that the collective bargaining agreement placed any limitation on an arbitrator’s authority to determine if a grievance was timely filed at the several steps of the grievance procedure.

This ruling suggests that courts will permit arbitrators to exercise broad adjudicatory powers in all areas except where such actions are specifically prohibited by the collective bargaining agreement.

Disciplinary hearing conducted in absentia

Disciplinary hearing conducted in absentiaMatter of Burkhalter, Commissioner’s Decision 13979

In most disciplinary cases a hearing will go forward even if one of the parties refuses to participate. More often than not it is the accused employee who declines to appear before the hearing officer. Occasionally the employer refuses to participate.

In the Burkhalter case, it was the school district that decided not to reply to an appeal filed with the Commissioner of Education by a teacher who complained that she had been unlawfully terminated. As the decision indicates, declining to submit an answer under such circumstances is risky.

Mary L. Burkhalter told her principal that she had been receiving papers, book and furniture coated with chemicals, which made her sick. Eventually her concern became so great that she refused to pick up school materials placed in her mailbox “for fear of being poisoned.”

The superintendent ordered Burkhalter to report for a mental/medical evaluation. After she failed to appear, charges of insubordination were filed against her pursuant to Section 3020-a and she was suspended without pay “until such time as she reported for a medical examination.”

Burkhalter filed a grievance alleging that she had been wrongfully suspended without pay. The grievance was settled when the district agreed to pay her about one month’s salary. Burkhalter then resigned and the pending disciplinary action was dismissed as moot.

Burkhalter, however, appealed to the Commissioner of Education, claiming that she had been wrongfully terminated. She contended that she had been forced to submit her resignation because of harassment, the filing of wrongful accusations and her suspension without pay. She asked the Commissioner to hold a hearing, seeking reinstatement and back salary.

The school district ignored the proceeding, despite being told of the consequences of its failing to respond to Burkhalter’s allegations. Failing to respond meant that the Commissioner would be required to deem all the statements set out in Burkhalter’s appeal and its attachments as “true statements” [8 NYCRR 275.11]. But for a technicality, Burkhalter probably would have prevailed as the district did not submit any rebuttal to her claims.

The technicality: the Commissioner dismissed her appeal as untimely because she did not file it within 30 days “from the making of the decision or the performance of the act complained of ....” Untimely appeals must be dismissed unless “excused by the Commissioner for good cause shown.”

The Commissioner said that the appeal was filed more than three years after Burkhalter submitted her resignation and she did not provide any excuse for her delay. Further, the Commissioner pointed out that “ignorance of the appeal process and its time limitations is not a sufficient basis to excuse a delay in the filing of the appeal.”

The point here is that had Burkhalter’s appeal been timely, or her lateness excused, the Commissioner’s decision would have been made solely on the representations set out in Burkhalter’s papers and attachments. Because the district elected not to submit any rebuttal for the Commissioner to consider, he would have been required to accept all of Burkhalter’s statements as true.

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Some elements to consider in an appeal to the Commissioner of Education

Some elements to consider in an appeal to the Commissioner of Education
In the Matter of Dania Hall and the Board of Education of the North Bellmore Union Free School, Decision of the Commissioner of Education No. 15,543

The Commissioner of Education dismissed Dania Hall’s appeal challenging the Board of Education’s decision to deny her tenure and terminate her employment.

Hall commenced serving as a probationary music teacher on September 1, 2002. On April 1, 2005, the superintendent gave Hall a letter dated March 31, 2005, notifying her that he would recommend termination of her probationary employment at Board of Education’s May 5, 2005 meeting. Normal procedures were followed after Hall was given the Superintendent’s letter whereby the Superintendent provided the reasons for his recommendation in writing and Hall submitted a written response to the Superintendent’s letter setting out the reasons for his decision. Ultimately, the Board voted to terminate Hall effective June 30, 2005 at its May 5, 2005 meeting.

On May 18, 2005, Hall filed a contract grievance asserting that she had not been given due process regarding her termination because district did not give her the 90 days pre-termination notice required under the relevant collective bargaining agreement.

Accordingly, Hall argued, she had acquired tenure by estoppel. The superintendent denied Hall’s grievance and the Commissioner noted “It appears from the record that the [North Bellmore Teachers] Association did not pursue the grievance any further.”

In considering Hall’s appeal, the Commissioner initially addressed a number of procedural issues that may prove instructive to those submitting, or responding to, an appeal to the Commissioner:

1. Section 275.5 of the Commissioner’s regulations 8 NYCRR 275.5] requires that all pleadings in an appeal to the Commissioner be verified.* If a petition is not properly verified, the appeal must be dismissed. As Hall’s petition filed with the Commissioner’s Office of Counsel included the required verification, the Commissioner rejected the school district’s motion to dismiss her appeal on the grounds that if lacked such verification.

2. The Commissioner said that the scope of Hall’s reply to the District’s answer to Hall’s appeal is impermissible. The purpose of a reply is to respond to new material or affirmative defenses set forth in an answer. The reply is not meant to buttress any allegations in Hall’s petition or to belatedly add assertions that should have been in the petition. Accordingly, in reviewing Hall’s reply the Commissioner said “I have not considered those portions containing new allegations or exhibits that are not responsive to new material or affirmative defenses set forth [by the district] in the answer.”

3. In response to Hall’s “demand for money damages,” the Commissioner said that such a demand is improper. The Commissioner has no authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.

4. Hall, in her letter transmitting her reply, requested “certain documents be obtained from [the district]” by the Commissioner. Rejecting this request, the Commissioner noted that “An appeal to the Commissioner is appellate in nature and does not provide for investigations.”

5. After filing her appeal, Hall submitted additional exhibits consisting of photographs and a student e-mail. The Commissioner noted that “Additional affidavits, exhibits and other supporting papers may only be submitted with the prior permission of the Commissioner (8 NYCRR §276.5).” As Hall did not seek prior permission to submit the documents, nor, said the Commissioner, “does it appear that the photographs were unavailable to her at the time she submitted her petition, the additional exhibits have not been accepted for consideration.”

6. As to Hall’s “memorandum of law,” the Commissioner said that such a memorandum should consist of arguments of law and may not be used to add belated assertions or exhibits that are not part of the pleadings. Accordingly, the Commissioner only considered Hall’s memorandum of law “to the extent that it contains legal argument.”

Turning to the merits of Hall’s appeal, the Commissioner said that “a board of education has the unfettered right to terminate a probationary teacher’s employment for any reason unless the employee establishes that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.”

In an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which the petitioner seeks relief. Although Hall disagreed with the basis for the decision to terminate her services, the Commissioner found that she did not allege or establish that the district terminated her employment “for a constitutionally impermissible reason or in violation of a statutory proscription.” Thus, Hall has failed to meet her burden of proof.Finally, the Commissioner considered Hall’s claim regarding the district’s compliance with the notice requirements of the collective bargaining agreement. He concluded that the issue was not properly before him.

In the words of the Commissioner:

"A school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter unless the employee can show that the union breached its duty of fair representation. Hall has not alleged that the union breached its duty of fair representation. Moreover, the record indicates that [Hall] wished to go forward to the next step of the grievance process but the union apparently determined not to do so. A decision by a union not to further pursue a grievance, by itself, does not constitute unfair representation. "

* The document must be attested to before a notary public, commissioner of deeds or another authorized by law to witness such documents.

Challenging the abolishment of a position in the public service

Challenging the abolishment of a position in the public service
Matter of Civil Service Employees Association. Inc., Local 1000, AFSCME, AFL-CIO v Rockland County Bd. of Coop. Educ. Servs., 39 A.D.3d 641

In this appeal, the Civil Service Employees Association. Inc [CSEA] challenged the BOCES’ abolishment of clinical psychologist position, a title in the classified service, and asked the court to reinstate Norman Stein, Robert Allan, and Jeffrey Goidel to their respective former positions of clinical psychologist with back pay, benefits, and seniority.*

The Appellate Division commence its review by noting that “A public employer may abolish civil service positions for the purpose of economy or efficiency “as long as the position is not abolished as a subterfuge to avoid statutory protection afforded civil servants before they are discharged,” citing Matter of Della Vecchia v Town of N. Hempstead, 207 AD2d 484.**

The party challenging the elimination of the position assumes the burden of proving that the employer did not act in good faith in abolishing the position. According to the Appellate Division, “Bad faith may be demonstrated by evidence that a newly hired person performed substantially the same duties as the discharged employee.”

The court, agreeing with Supreme Court’s conclusion, said that CSEA “failed to raise a triable issue of fact as to whether the [BOCES] acted in bad faith in abolishing [classified] service positions of clinical psychologist and replacing those who were consequently terminated from employment with an increased number of school psychologists.”

While, said the court, some of the duties of clinical psychologist overlap with those of a school psychologist, the positions are not the “same or similar,” as they have different certification requirements.

Clinical psychologist is a title in the classified service and thus the Civil Service Law controls employment in those positions. In contrast, school psychologist positions are in the unclassified service and subject to the relevant provisions of the Education Law with respect to appointment to that title.

* As to mechanics involved in abolishing a position in the public service, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee having rights triggered upon layoff from his or her position (1976 Opinions of the Attorney General 7). The means that the position or positions abolished must be physically eliminated.

** Civil Service Law Sections 80 through and including 82 address the abolishment of positions and the procedures to be followed and the rights of the employees so affected.

March 24, 2010

Genesee County Legislature imposes the terms and conditions of the 2006-2008 collective bargaining agreement on negotiating unit for 2009

Genesee County Legislature imposes the terms and conditions of the 2006-2008 collective bargaining agreement on negotiating unit for 2009
Source: Resolution 107 of the Genesee County Legislature [2010]

The contract negotiations between Genesee County and the CSEA, Local 1000, Local Unit 819, Genesee County General Unit, resulted in an agreement by the respective Negotiating Teams. The Union’s members, however, voted to reject the proposed collective bargaining agreement.

PERB then appointed Michael Lewandowski to consider the issues involved. Subsequently Lewandowski issued a Fact Finding Report and Recommendations.

The County Legislature then held a hearing pursuant to §209 of the New York Civil Service Law* for the purpose of considering the responses to the Fact Finding Report from the County and the CSEA, Local Unit 819.

The County Negotiating Team accepted the Fact Finder’s Report in its entirety. The CSEA General Unit, however, did not accept the Fact Finder’s Report in its entirety,

Noting that the County Manager had indicated that the County had received no direct communication from Union Officials since their communication rejecting the Fact Finders Report late last year, the County Legislated voted to impose the terms and conditions of the existing [2006-2008] collective bargaining agreement in 2009.

The Resolution adopted by the County Legislature reads as follows:

"That the Genesee County Legislature does hereby impose the same terms and conditions included in the 2006-2008 Collective Bargaining Agreement for CSEA, Local 1000, Local Unit 819, Genesee County General Unit for the calendar year 2009."

* §209.3(e) of the New York Civil Service Law provides "(e) should either the public employer or the employee organization not accept in whole or in part the recommendations of the fact-finding board, (i) the chief executive officer of the government involved shall, within ten days after receipt of the findings of fact and recommendations of the fact-finding board, submit to the legislative body of the government involved a copy of the findings of fact and recommendations of the fact-finding board, together with his [or her] recommendations for settling the dispute; (ii) the employee organization may submit to such legislative body its recommendations for settling the dispute; (iii) the legislative body or a duly authorized committee thereof shall forthwith conduct a public hearing at which the parties shall be required to explain their positions with respect to the report of the fact-finding board; and (iv) thereafter, the legislative body shall take such action as it deems to be in the public interest, including the interest of the public employees involved."

Employer did not violate human rights law when it terminated an individual who was unable to qualify for a required license

Employer did not violate human rights law when it terminated an individual who was unable to qualify for a required license
Joseph Kinneary v City Of New York, 08-1330-Cv (2nd Cir. 3-19-2010)

Joseph Kinneary sued the City of New York contending that he was terminated* from his position as sludge boat captain with the New York City Department of Environmental Protection in violation of the Americans With Disabilities Act, New York State’s Human Rights Law and New York City’s Human Rights Law.

Kinneary prevailed in federal district court and the jury awarded him $100,000 in back pay and $125,000 in non-economic damages

The City appealed. The Circuit Court of Appeals reversed, holding that Kinneary was offered, but failed to qualify for, his captain's license under the accommodation to which he claims he was entitled. The court noted that Kinneary became unqualified to perform the essential functions of his job as a result of his not being licensed to serve as a captain and thus there was no violation of the Americans with Disabilities Act.

The court said that in order to prevail the plaintiff must prove that: "(1) the defendant is covered by the ADA; (2) plaintiff suffers from or is regarded as suffering from a disability within the meaning of the ADA; (3) plaintiff was qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) plaintiff suffered an adverse employment action because of his disability or perceived disability."

The court then considered Kinneary's claims under the NYSHRL and NYCHRL. It said that his claims must fail, because an employer cannot have violated state or local discrimination laws by implementing federal regulations that determine, as was the case here, whether Kinneary is eligible to serve as a captain.

A termination letter sent from the Assistant Commissioner of the DEP to Kinneary explained that, “I have been made aware of the suspension of your License issued by the United State[s] Coast Guard, which is a requirement of your title . . . Because you do not possess the required license for your position as Captain, you are hereby terminated from your position of Captain with the Agency, effective March 4, 2004.”

Termination following discipline hearing conducted in absentia upheld

Termination following discipline hearing conducted in absentia upheld
Chawki v New York City Department of Education, Manhattan High Schools, District 71, 39 AD3d 321

The New York City Department of Education (DOE) served disciplinary charges and specifications on Houda Chawki, a tenured high school teacher. The Department alleged that Chawki was guilty of excessive absences and lateness, inappropriate behavior and unsatisfactory teaching. DOE urged that Chawki be dismissed from her position.

The relevant law and provisions set out in the Collective Bargaining Agreement between the DOE and the United Federation of Teachers (UFT) provide that a tenured teacher in receipt of notice of charges involving pedagogical incompetence has 10 days to submit a written request that he or she wanted a hearing on the charges and, in addition, was required to indicate whether the teacher wished a single arbitrator or a panel of three arbitrators to conduct the hearing.

On October 18, Chawki requested a hearing but the form she submitted did not provide any space for her to indicate her preference as to the composition of the panel. Sometime later Chawki asked that the matter be heard by a panel of three arbitrators and stating that she would represent herself in the proceedings.

After a number of postponements requested by Chawki, the arbitrator advised her that “additional postponements would not be approved without ‘proof of the most compelling circumstances,’ and that failure to appear would result in the proceedings being conducted in her absence.”

On November 30, 2002, Chawki wrote indicating that she would not be able to attend the December 2, 2002 pre-hearing conference as scheduled because the attorney provided to her by the United Federation of Teachers [UFT] to represent her in a federal action against the Board of Education would be filing a motion in Eastern District Court for a temporary restraining order staying arbitration.

Notwithstanding this representation, Chawki did appear at the pre-hearing conference, but without counsel. She told the arbitrator that she was present solely for the purpose of delivering her November 30, 2002 letter and not to attend the scheduled hearing. Her presence and purpose were noted on the record, and the arbitration hearing proceeded in her absence on December 2 and 3. The arbitrator found Chawki guilty of “virtually all charges” preferred against her and she was subsequently terminated from her position.

Chawki sued, petitioning the court to vacate the award claiming that the arbitrator failed to follow the procedure of CPLR article 75 and engaged in misconduct.*

In rebuttal, DOE argued, among other things, that Chawki’s request for a three-member arbitration panel was untimely.**

Supreme Court vacated the arbitration award, holding, among other things, that the arbitrator was not properly sworn in accordance with CPLR 7506(a). The Appellate Division overturned the lower court's decision.

As to the arbitrator’s decision to proceed with the hearing in absentia, the Appellate Division said that CPLR 7506(c) provides, “Notwithstanding the failure of a party duly notified to appear, the arbitrator may hear and determine the controversy upon the evidence produced.” As there was no question that Chawki received adequate notice of the proceedings and actually appeared on the hearing date, the only question regarding the alleged “arbitral misconduct,”*** said the Appellate Division, concerns the denial of an adjournment.

In the words of the Appellate Division:

Resolving issues involving any adjournment of the arbitration is “a matter that lies in the sound exercise of the arbitrator’s discretion, which will only be disturbed if abused (Matter of Bevona [Superior Maintenance Co.]), 204 AD2d 136.

The Appellate Division ruled that Chawki had been advised that the matter would be heard as scheduled and warned that adjournment would require compelling circumstances.

The court also noted that “The six weeks between the time [Chawki] received notice of the charges against her and the date proceedings commenced afforded ample time to prepare for the hearing and consult counsel.” Accordingly, said the court, Chawki’s request for an adjournment was appropriately rejected.

In the words of the court: A party’s unjustified refusal to participate in an arbitration hearing does not afford a basis for attack upon an award rendered on default (CPLR 7506[c]) and may not be utilized to frustrate this State’s “strong public policy of encouraging, by judicial noninterference, an unfettered, voluntary arbitration system, where equity should be done.”

The court also ruled that because Chawki’s request for the matter to be heard by a three-member panel was untimely, the matter was properly heard by a single arbitrator.

Finally, as to Chawki’s claim that the fact that the Hearing Officer was not sworn in accordance with CPLR 7506(a) requires that the award be vacated, the Appellate Division ruled that regardless of the accuracy of Chawki’s representation in this regard, the Rule in the First Circuit is that “the failure of an arbitrator to take an oath is a technical irregularity not warranting judicial intervention,” citing Matter of Institute of Intl. Educ. [Permanent Mission of Spain to United Nations], 118 AD2d 433, leave to appeal denied 68 NY2d 608.****

The order and judgment of the Supreme Court, New York County was unanimously reversed by the Appellate Division and the arbitration award was confirmed.

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* Chawki alleged that the minutes fail to reflect that the arbitrator was ever sworn in (CPLR 7506[a]), that she was deprived of her right to a hearing before a panel of three arbitrators and that the arbitrator failed to adjourn the proceedings in order to give her sufficient time to confer with counsel and to review evidentiary materials.

DOE also argued that even if an oath were required, it was waived by the failure to interpose any objection to the manner in which the proceedings were conducted.

See CPLR 7511[b]*[I])

In contrast, the critical importance of designating a hearing officer or the members of a hearing panel in writing is demonstrated by the Appellate Division’s decision in Perez v NYS Dept. of Labor, 665 NYS2d 714. Citing the Court of Appeals ruling in Wiggins v Board of Education, 60 NY2d 385, the Appellate Division said that because there was no written designation appointing the hearing officer, the appointing authority “lacked jurisdiction” to maintain the initial disciplinary proceeding against Perez. Accordingly, the Appellate Division “voided” the appointing authority’s determination finding Perez guilty of the charges and vacated the penalty.

Administrative decision disqualifying applicant for promotion examination because she retained examination material overturned

Administrative decision disqualifying applicant for promotion examination because she retained examination material overturned
Matter of City of New York v New York City Civil Service Commission and Esther Silver, 2006 NY Slip Op 30014(U), [Not selected for publication in the Official Reports]

Esther Silver, a Sabbath observer, took a civil service examination for promotion to Associate Staff Analyst on Friday, June 8, 2001 instead of on its scheduled date, Saturday, June 9, 2001.

The Department of Citywide Administrative Services [DCAS], the examination administrator, called Silver at home concerned about a missing copy of the examination booklet. Silver later discovered that “the booklet was nestled in between other papers in her purse.”

Silver reported this to DCAS and DCAS immediately sent its representative to Silver’s home to retrieve it. Carol Wachter, DCAS’s Assistant Commissioner for Examinations, subsequently notified Silver that she was disqualified because she had retained possession of her test booklet.

Joseph A. DeMarco, Deputy Commissioner of the Division of Citywide Personnel Services of DCAS, upheld Silver’s disqualification, whereupon Silver appealed to the New York City Civil Service Commission [CSC]. CSC conducted a hearing and ultimately issued a decision reversing DCAS’ s determination.

Claiming that CSC’s reversal of its decision was affected by an error of law because Silver’s continued possession of the test booklet after the conclusion of the examination mandates disqualification, DCAS appealed. It contended that CSC’s reversal of its determination was arbitrary and capricious and an abuse of discretion.

Judge Doris Ling-Cohan sustained CSC’s determination, holding that “there was a rational basis for CSC’s determination and the action complained of was neither arbitrary, nor capricious.”

Judge Ling-Cohan commented that “the Civil Service Law empowers New York City to administer the provisions of the. Civil Service Law through whatever form of administration it chooses to prescribe in its city charter (Civil Service Law 6.15).”

Although New York City Charter established DCAS as an administrative agency responsible for citywide personnel matters, CSC has the power to prescribe, amend, and enforce suitable rules for examinations, appointments, promotions, transfers, resignations, and reinstatements under the Civil Service Law, as well as the authority to review decisions by DCAS.

DCAS contended that its ruling was correct as a matter of law, citing Section 50(11)(d), a provision entitled “Unlawful acts in respect to examinations administered pursuant to this chapter.”*

Judge Ling-Cohan pointed out that in interpreting a similar statute, the Court of Appeals has held that the Commissioner of Education’s review powers over the decision of a hearing panel were broad and with regard to any punishment to be imposed, the Commissioner could substitute his own judgment for that of the panel, citing Mutter of Shurgin v Ambach, 56 NY2d 700 and Matter of Letyn v Ambach, 56 NY2d 912. In addition, said Judge Ling-Cohan, courts have held that an appeal board has the power to reverse a decision rendered below even if that decision was not arbitrary and was supported by substantial evidence.

In this instance, CSC conducted a hearing and investigation. Silver testified that after completing her examination, the proctor examined and collected all of her test materials and that “she was unaware her examination booklet was in her possession until her daughter called and informed her that DCAS had phoned and inquired about the missing booklet.” Further, Silver had supplied DCAS with a signed affidavit stating that she had neither shown the booklet to anyone

CSC found this testimony credible and Judge Ling-Cohan said the record established that CSC’s decision was neither arbitrary nor capricious. As the court noted, there was no evidence in the record that controverts Silver’s statements. Accordingly, said the court, “While one might reasonably disagree with the [CSC’s] action, [CSC] is the commission that is invested with the discretion to balance the competing interests involved in these matters, and, as previously indicated, the scope of [this court’s] review is limited,” citing City of New York v O’Connor, 9 AD3d 328, [Leave to appeal denied, 3 NY3d 611].

* Section 50(11)(d) provides a person who shall: “Have in his or her possession any questions or answers relating to any such examination, or copies of such questions or answers, unless such possession is duly authorized by the appropriate authorities…, shall be guilty of a class A misdemeanor punishable by a sentence of imprisonment of six months or a fine of one thousand dollars, or both. Additionally, a person who is found by the state civil service department or municipal commission to have violated this section shall be disqualified from appointment to the position for which the examination is being held and may be disqualified from being a candidate for any civil service examination for a period of five years.”

Providing Workers’ Compensation benefits to firefighters for a work-related injury

Providing Workers’ Compensation benefits to firefighters for a work-related injury
Matter of Wiley v City of Watertown Fire Dept., 39 A.D.3d 975

Frederick Wiley, a paid firefighter, was injured in 1981 while working for the City of Watertown Fire Department. He received benefits pursuant to General Municipal Law Section 207-a until 1999, when such benefits were terminated because he was found to have engaged in other employment.*

After the termination of his Section 207-a benefits was confirmed on appeal (Matter of Wiley v Hiller, 277 AD2d 1024 [2000], appeal dismissed 96 NY2d 852 [2001]), Wiley applied for Workers’ Compensation benefits for his 1981 injury.

Watertown contested the payment of the claim on the grounds that, among other things, the City of Watertown had not extended workers’ compensation coverage to paid firefighters prior to Wiley’s injury and, in any event, his claim is time barred. The Workers’ Compensation Board, however, found that coverage had been extended by resolution of the Watertown City Council in 1933 and Wiley’s claim was not time barred. Watertown appealed.

The Appellate Divisions initially noted:

"There is no dispute that paid firefighters are not specifically covered under the Workers’ Compensation Law.” Here, however, the issued to be resolved “is whether the City Council, nonetheless, extended coverage to previously uncovered employees pursuant to Workers’ Compensation Law."**

The court’s conclusion: the intent to provide such coverage is expressed only in the Watertown City Council’s resolution adopted in 1984, a resolution adopted after Wiley had sustained his injury.

The Appellate Division pointed to the language used in 1984 resolution as expressing the City’s intent, for the first time, to cover all officers, employees and officials by adopting the following resolution:

"NOW THEREFORE BE IT RESOLVED that the City of Watertown will provide [w]orkers’ [c]ompensation coverage for all employees of the City of Watertown, all elected and appointed officials and officers of the City of Watertown, and any other persons for whom the New York Workers’ Compensation Law provides coverage under the City of Watertown’s self-insured plan."

The court that ruled that the Board erred in finding that Workers’ Compensation coverage was extended to paid firefighters before Wiley was injured.

* Subdivision 6 of General Municipal Law Section 207-a at one time barred any and all “income,” regardless of source, while the individual was on 207-a leave. The subdivision has been amended and currently provides an exception for “passive income:” 6. Any fireman receiving payments or benefits pursuant to this section, who engages in any employment other than as provided in subdivision three or five of this section shall on the commencement of such employment, forfeit his entitlement to any payments and benefits hereunder, and any such payment or benefit unlawfully received by such fireman shall be refunded to and may be recovered by the municipal corporation or fire district employing such fireman in a civil action. For the purposes of this section, employment shall not include income derived from passive involvement with: gains derived from dealings in property, interest income, rents from real property, royalties, dividends, alimony and separate maintenance payments, annuities, income from life insurance and endowment contracts, other pensions, income from the discharge of indebtedness, income in the respect of a decedent, and income from an interest in an estate or trust.

** With respect to the expectation that Workers’ Compensation benefits may be made available to a disabled firefighter, Subdivision 4-a of General Municipal Law Section 207-a provides: 4-a. Any benefit payable pursuant to subdivision two of this section to a person who is granted retirement for disability incurred in performance of duty pursuant to section three hundred sixty-three-c of the retirement and social security law shall be reduced by the amount of the benefits that are finally determined payable under the workers’ compensation law by reason of accidental disability.

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An appeal to the Commissioner of Education must show a clear legal right to the relief sought

An appeal to the Commissioner of Education must show a clear legal right to the relief sought
Appeal of Edward Dyminski from action of the Board of Education of the City School District of the City of Rochester, Decisions of the Commissioner of Education No. 15,707

Following the School District’s decision to abolish a position due to declining enrollment, it determined that Daniel Collins was the least senior of the mechanical trades teachers and notified him that he would be “excessed.” Edward Dyminski was told that he would be assigned to teach Basic Manufacturing and Design.

The district then decided that it had erred in making these decisions because Dyminski was not certified to teach the course to which he had been assigned while Mr. Collins had a provisional certification to teach that course. The district eliminated Dyminski’s position and retained Collins to teach several sections of the course. Unhappy with the district’s determination, Dyminski appealed to the Commissioner of Education.

Although his appeal was dismissed on technical grounds – Dyminski failed to name a necessary party to his appeal*-- the Commissioner took the opportunity to address the merits of Dyminski’s appeal.

The Commissioner stated that even if Dyminski’s appeal was properly before him, it would be dismissed, noting that in an appeal to the Commissioner, the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which he or she seeks relief.

Here, said the Commissioner, Dyminski failed to meet that burden because he:

1. “has not demonstrated how his certification in welding qualifies him to teach a course on lathes and milling machines.”**

2. failed to provide a clear calculation of his seniority and theirs in properly identified tenure areas in order to demonstrate that he had greater seniority.

3. failed to demonstrate that the School District was obligated to restructure its career and financial management courses throughout the district to create a full-time position for him, either as an itinerant or at his last location in support of his theory in this regard.

* A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such.

** The Commissioner rejected Dyminski’s argument that “because the district has allegedly assigned CTE teachers without regard to certification or tenure area in the past, it should assign him to a full-time position teaching courses outside his certification.”

Unemployment Insurance claim rejected following resignation found not medically necessary

Unemployment Insurance claim rejected following resignation found not medically necessary
Matter of Cartarius-Macri v Commissioner of Labor, 39 A.D.3d 994

Laura M. Cartarius-Macri was employed as a senior keyboard specialist at a school from September 1998 until September 2005. In April and May 2005, she was on medical leave as a result of health issues related to anxiety and depression.

When Cartarius-Macri returned to work she said that she felt overwhelmed with her job responsibilities and subsequently resigned from her position.

Although Cartarius-Macri was initially found eligible to receive unemployment insurance benefits, her employer objected and the Unemployment Insurance Appeal Board ultimately disqualified her from receiving benefits.

When the Board determined that Cartarius-Macri had voluntarily left her employment without good cause, she appealed the Board’s ruling.

The Appellate Division sustained the Board’s decision, stating that “Inasmuch as [Cartarius-Macri’s] resignation was not based upon the advice of a physician . . . and was done before affording the employer the opportunity to remedy the situation . . . the Board could find that she left her employment for personal and noncompelling reasons.”

The decision states that although Cartarius-Macri testified that, at the time of her resignation, she experienced chest pain as well as anxiety attacks and that her doctor had previously advised her to leave her job, she had not initially report this to the Department of Labor. Further, the request for medical information questionnaire she provided in support of her claim for benefits after her resignation, which was signed by a physician’s assistant, did not establish that her resignation was medically necessary.

As to allowing her employer an opportunity to “provide an accommodation,” Cartarius-Macri apparently submitted her resignation before the clerk hired by the school to assist her had started working.

These factors, said the Appellate Division, constituted substantial evidence supporting the Board’s finding that Cartarius-Macri left her employment for personal and noncompelling reasons.

Standard used by the court in evaluating an employee’s defamation claim coupled with a demand for a "name clearing hearing"

Standard used by the court in evaluating an employee’s defamation claim coupled with a demand for a "name clearing hearing"
Matter of Casale v Metropolitan Transportation Authority, 47 AD3d 519

Nicholas Casale was termination from his position as the Authority’s Deputy Director of Security with the Metropolitan He asked the court to order that the Authority give him a name-clearing hearing and that the Authority reinstate him to his former position.

The Appellate Division said that “defamation alone, even by a government entity, does not constitute a deprivation of a liberty interest protected by the Due Process Clause. Some “stigma plus” must be shown before mere defamation will rise to the level of a constitutional deprivation.”

Further, said the court, “in the context of defamation involving a government employee, defamation … is not a deprivation of a liberty interest unless it occurs in the course of dismissal or refusal to rehire the individual as a government employee or during termination or alteration of some other legal right or status.”

A name clearing hearing, however, serves only one purpose to clear the individual’s good name and reputation. Vindication of the employee at a name clearing hearing does not automatically result in the individual obtaining a right to reemployment in his or her former postion.

Further, as a general rule, a name-clearing hearing is warranted only in the event the employer has disseminated false and stigmatizing information to the public.

In Donato v Plainview-Old Bethpage School District, 96 F3d 623, the Second Circuit Court of Appeals held that a name-clearing hearing is available to the individual when he or she "is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee's competence."

March 23, 2010

The State Department of Education seeks Regents approval for an additional $2,000,000 for "Tenured Teacher Hearings"

The State Department of Education seeks Regents approval for an additional $2,000,000 for "Tenured Teacher Hearings"
Source: Executive Summary: Amended 2010-2011 Regents Budget Priorities.

On March 9, 2010, Deputy Commissioner of Education for Operations and Management Services Theresa E. Savo advised the Board of Regents of the Education Department's proposed amended Budget Request for fiscal 2010-2011. Included for Regent's approval is a request for an additional $2,000,000 for "Tenured Teacher Hearings."

The Deputy Commissioner commented that "Section 3020-a of the State Education Law specifies the procedures school districts must follow to discipline or discharge school employees who have completed a probationary period of professional employment and have been granted tenure by the employing school board. Grounds for discipline may include conduct unbecoming a teacher, failure to maintain certification, immoral character, incompetence, inefficiency, insubordination, neglect of duty and physical or mental disability. The [Education] Department’s role in the tenured teacher disciplinary process is primarily ministerial."

In addition, Deputy Commissioner Savo said that "The Department has little or no ability to control costs associated with the Tenured Teacher Hearing (TTH) process. As a result, costs have continued to rise significantly and the annual appropriation now falls well short of the funds necessary to cover required expenditures. As such, the Department is seeking a $2.0 million increase to the appropriation to address the growing imbalance between TTH costs and funding."

Protected activity under the Taylor Law

Protected activity under the Taylor Law
Miller and NYC Board of Education, 35 PERB 3002

Reeva Miller received unsatisfactory performance ratings over a number of school years, including the 1998-1999 school year. Following her receiving the 1998-1999 unsatisfac­tory rating, the New York City Board of Education initiated disciplinary action against Miller pursuant to Section 3020-a of the Education Law based on her unsatisfactory performance.

Miller filed an unfair labor practice charge with PERB alleging that she had been subject­ed to a pattern of harassment that culminated in disciplinary action being taken against her in violation of Sections 209-a.1(a) and (c) of the Public Employees' Fair Employment Act [the Taylor Law]. Miller complained that the disciplinary action was initiated after she engaged in a pro­tected activity -- discussing her interest in a change in her class schedule in accordance with the terms of the relevant collective bargaining agreement with her union -- the United Federation of Teachers [UFT].

While PERB acknowledged that the "timing of two events could raise suspicion," PERB noted that it had never accepted "suspicion" as a substitute for evidence of anti-union animus. PERB dismissed Miller's charge, sustaining the Administrative Law Judge's finding that the District had not initiated disciplinary action against her because of her engaging in any protected activity.

PERB pointed out that Miller had been evaluated as "weak" prior to her request for a change in her class schedule and her communication with the UFT. It also noted that Miller had been provided with an opportunity to improve her performance as a teacher by using the services of the "PEER intervention program" and that she was observed in the classroom and rated unsatisfactory by individuals employed at another school and who were unaware of her communications with the UFT.

Educator terminated after being reported as having improperly attempting to raise her pupils' standardized test scores

Educator terminated after being reported as having improperly attempting to raise her pupils' standardized test scores
Rivera v Community School District 9 [NYC], USDC SDNY, Justice Stein, 145 F. Supp. 2d 302

Anna Rivera, a probationary teacher employed by New York City's Community School District 9, was terminated for allegedly improperly attempting to raise her pupils' standardized test scores.

According to the decision, in December 1999, the New York City Special Commissioner of Investigation issued a report entitled "Cheating the Children: Educator Misconduct on Standardized Tests." The report alleged that educators in the New York City public school system used a variety of inappropriate means to raise their students' scores on standardized tests. It specifically alleged that Rivera was present while a "cheat sheet" was prepared the day before the citywide reading and math tests were to be given to all third graders in 1995.

Notwithstanding Rivera's denial of cheating, the Report stated that "interviews with Rivera's students establish that Rivera did in fact cheat on that test." Ultimately Rivera was dismissed from her position with the district. Claiming that the district violated her right to due process rights by dismissing her without holding a pre-termination hearing and violated her First Amendment rights by terminating her in retaliation for filing a notice of claim against other employees, Rivera appealed.

The court granted the Board of Education's motion to dismiss the Rivera's complaint but said that she could refile her claim provided she presented sufficient facts to establish a causal connection between her filing a notice of claim and her dismissal from her probationary teaching position.

Justice Stein ruled that:

1. Under New York State law, a probationary employee such as Rivera has no property interest in her job which would entitle her to due process rights; and

2. Although a probationary employee, Rivera does have a liberty interest in clearing her name from the stigma of accusations of dishonesty, which entitles her to due process.

As to providing Rivera with a name-clearing hearing, Justice Stein noted that Rivera was terminated because the superintendent of Community School District Nine concluded that Rivera cheated on standardized tests, pressured other teachers into cheating, and attempted to assault another teacher for refusing to cooperate in the cheating scheme. These allegations were disseminated to the public and repeated in letters to Rivera.

Rivera denied these charges. Because these accusations impugn Rivera's honesty, said Justice Stein, she has a liberty interest that is protected by the Due Process Clause. As to a remedy, the court said that Due Process Clause of the Fourteenth Amendment is not violated "so long as the state provides a meaningful postdeprivation remedy."

Was such a "post-deprivation remedy" available to Rivera? Yes, said the court. New York's Article 78 [Article 78, Civil Practice Law and Rules] proceeding has been held to provide an adequate post-deprivation remedy.

Protected activity under Title VII

Protected activity under Title VII
McMenemy v City of Rochester, CA2, 241 F.3d 279

If an individual who works for Employer A investigates a human rights complaint alleged by an individual working for Employer B, is he or she engaged in a protected activity within the meaning of Title VII insofar as Employer A is concerned? This was a major issue in the McMenemy case.

John McMenemy, a former Rochester firefighter, filed human rights complaints under federal and state law alleging that he had been passed over for passed over for promotion by the City in retaliation for his investigating a sexual harassment complaint made by the secretary of the local firefighters' union against the president of the union.

Federal District Court Judge Charles J. Siragusa granted the City's motion for summary judgment on the ground that McMenemy had not engaged in a protected activity under those statutes because he had been investigating an employer different from the employer who took the adverse employment action.

In addition, the district court dismissed McMenemy's retaliation in promotion claims, finding that he had no property interest in a promotion or a competitive promotional examination and therefore had not been deprived of an interest protected by the Constitution.

After sustaining the lower court's ruling concerning McMenemy's promotion claims founded on an alleged property interest, the U.S. Circuit Court of Appeals, Second Circuit pointed out that an individual is protected against retaliation for participation in employment discrimination proceedings even if those proceedings involved a different entity. In the words of the court:

We think that Title VII protects an employee from any employer, present or future, who retaliates against him because of his prior or ongoing opposition to an unlawful employment practice or participation in Title VII proceedings.

Vacating the lower court's judgment concerning McMenemy's Title VII and New York Human Rights Law claims, the Circuit Court remand the case for further proceedings "consistent with its ruling."

Qualified privilege as a defense in litigation

Qualified privilege as a defense in litigation
Werner, et al, v Costella, NYS Supreme Court (Justice Solomon) [not officially reported]

Under a legal concept called “qualified privilege,” public employees are immune from liability for acts or omissions committed while acting properly in the execution of their official duties. Sometimes an individual will claim a “qualified privilege” if sued for libel or slander. In the public service this type of case often arises following a disciplinary action. Courts have held that communications between public officials in connection with disciplinary investigations or the processing of a disciplinary action is protected by a “qualified privilege.” In the Werner case, Justice Solomon sets out the basic rules followed in such situations.

Costella, an associate attorney employed by Werner, Zaroff, Slotnick, Stern and Askensky, told another attorney, Mark Novick, who was practicing in the same area of law, that the Werner, Zaroff firm “had been indicted by either State or Federal authorities for crimes involving fraud, deceit and/or larceny.”

The firm sued Costella. Costella asked for summary judgment dismissing the action, claiming a qualified immunity based on the “common interest doctrine”* and, in addition, argued that the firm failed to show any injury resulted from his statements.

Justice Solomon noted that under New York law, “a qualified privilege arises when a person makes a bona fide communication upon a subject in which he or she has an interest, or a legal, moral or societal duty to speak, and the communication is made to a person having a corresponding interest or duty.” Once the privilege is established, the offended party has the burden of demonstrating that the communication was not made in good faith.

Here the court held that Costella failed to show that he enjoyed any “common interest privilege” regarding his statements. Clearly Novick was not a member of the firm and thus Costella could not satisfy the “organization” test. Further, Costella’s statement was deemed “slanderous per se since it affected the law firm in its profession and the law presumes that damages will result and thus need not be proven. Justice Solomon denied Costella’s motion for summary judgment.

The potential importance of having a “qualified privilege” is demonstrated by a case that is currently pending, Fry v McCall, [USDC, SDNY]. Federal district court judge John G. Koeltl, in an interim ruling, decided that Patricia Fry was not entitled to damages from the State Comptroller or his two deputies in their “personal capacity.”

Fry alleged that she had been unlawfully terminated because she complained that her office’s reports on New York City’s financial situation were subjected to a politically motivated “whitewash.” Judge Koeltl ruled that the three officials were shielded by a qualified immunity from personal liability in the $2.5 million lawsuit brought by Fry.

* The “common interest qualified privilege” generally applies in situations where “members of an organization discuss among themselves matters of concern to the organization.”

Public Personnel Law E-books

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 700 page e-book. For more information click on

A Reasonable Disciplinary Penalty Under the Circumstances - A 442-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. Now available in two formats - as a large, paperback print edition and as an e-book. For more information click on

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