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Thursday, November 04, 2010

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Termination of employment pursuant to Civil Service Law Section 73

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

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

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

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

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

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

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

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

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

Tuesday, November 02, 2010

Dual employment

Dual employment
Holbrook v Rockland Co, 260 AD2d 437

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

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

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

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

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

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

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

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

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

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


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