N.B. "Artificial Intelligence" [AI] is not used, in whole or in part, in the preparation of the summaries of the judicial and quasi-judicial decisions posted on this Law Blog.

March 31, 2011

Discipline or constructive criticism?

Discipline or constructive criticism?
Source: E-mail received by NYPPL referencing an item posted on the Internet at http://auburnpub.com/news/local/article_0a5c06e8-5a78-11e0-95ff-001cc4c03286.html

Suspended Jordan-Elbridge School District principal David Zehner and his attorneys, citing the Education Law and the Public Officer Law, contend that Zehner cannot be “reprimanded” until a hearing officer is selected to hear any  charges filed against him pursuant to §3020-a of the Education Law and he is found guilty of those charges.

Zehner considered three actions by the Board to constitute reprimands, or punishments, in the nature of disciplinary actions taken against him and petitioned Supreme Court for an order directing the board "to cease disciplining him until it appoints an arbitrator to conduct a hearing on his 3020-a charges."

The school district, on the other hand, contends that it had not reprimanded Zehner but had merely informed him that he had violated board policy by acting inappropriately at meetings. The school district’s attorney, Frank Miller, Esq., said. “This isn’t a letter of reprimand. ... We have a right to say to one of our employees, ’you’re acting up; we’re going to correct you.’”

Distinguishing between “constructive criticism” and a reprimand in the context of a disciplinary action has been addressed in The Discipline Book [http://thedisciplinebook.blogspot.com/ ] as follows:

"In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled 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 appointing authority’s 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.

"As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, 14,396, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000, '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?

"This could be a difficult question to resolve. As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.

"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” despite the school board’s claim that the memorandum was 'intended to encourage positive change' in Fusco’s performance. The Commissioner noted 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." .

Dissatisfaction with a new job assignment

Dissatisfaction with a new job assignment
Matter of Gaines and the NYC Transit Authority [Commissioner of Labor], Appellate Division, 37 AD3d 962
Shawn A. Gaines was disqualified from receiving unemployment insurance benefits after the Unemployment Insurance Board found that he had voluntarily left his employment without good cause.

Gaines, after working as a train operator for 21 years, was temporarily suspended from his job and scheduled to return to work in October 2004. In the interim, however, the Transit Authority implemented a policy prohibiting employees from working as train operators when, as was the situation with Gaines, they have medical restrictions that prevent them from operating trains in passenger service.

Gaines’ restriction: he suffered a hearing loss.

The Authority, however, told Gaines it would place him in a different position and directed him to report for medical examinations. Gaines did not report for the examinations nor did he provide the Authority with the documentation it had requested concerning his medical condition. Instead, Gaines filed a claim for unemployment insurance benefits claiming that he was terminated for lack of work.

The Unemployment Insurance Appeal Board disqualified him from receiving benefits after finding that Gaines had voluntarily left his employment without good cause. The Board also charged Gaines with a recoverable overpayment of more than $1,600 and reduced his right to receive future benefits by eight effective days. Gaines appealed.

The Appellate Division affirmed the Board’s determination, stating that dissatisfaction with a new job assignment, the terms and conditions of which are comparable to a former job, has been held not to constitute good cause for leaving one's job.

Other factors cited by the court supporting the Board’s determinations:

1. Gaines said he did not want to be placed in a different position even though an Authority representative testified that Gaines would receive the same salary and vacation time.

2. By failing to appear for the Authority’s medical examinations before knowing the nature of the position to which he was to be reassigned, Gaines failed to take reasonable steps to protect his employment.

Considering the fact that Gaines “inaccurately represented that he was laid off when continuing work was, in fact, available,” the court ruled that substantial evidence also supports the Board's finding that he made a willful misrepresentation to obtain benefits.

The decision is posted on the Internet at:

Interpreting contract language

Interpreting contract language
Local 589 v Cuevas, 271 AD2d 535

Using clear and unambiguous language in a collective bargaining agreement makes it easier for a court to resolve the meaning of a Taylor Law contract provision.

In the Local 589 case, the union attempted to convince the court that PERB had misinterpreted the provisions set out in a collective bargaining agreement when it declined to accept jurisdiction over an improper practice charge filed by the Local. The Appellate Division, Second Department disagreed, affirming PERB’s determination in the matter.
The City of Newburgh and International Association of Firefighters Local 589 had negotiated a collective bargaining agreement that included a “Section 207-a Procedure” that dealt with filing application for, and the awarding of, disability benefits pursuant to Section 207-a of the General Municipal Law.

The negotiated procedure stated that [a]ny claim of violation, misapplication, or misinterpretation of the terms of the Procedure shall be subject to review only by judicial proceeding.

Claiming that requiring a disabled firefighter’s physician to fill out a newly-created form violated the Procedure, the Local filed an improper practice charge with PERB. PERB, however, declined to assume jurisdiction, holding that it was procedurally barred by the Procedure from reviewing the charge in view of the clear and unambiguous contract language used in the collective bargaining agreement.

Although a State Supreme Court annulled PERB’s determination, the Appellate Division disagreed, finding that PERB dismissal of the Local’s improper practice charge was based upon a reasonable interpretation of the provision at issue. The court noted that the scope of judicial review of a PERB determination interpreting the Civil Service Law is limited, and unless the determination is affected by an error of law or is arbitrary and capricious, it will be upheld. PERB, said the court, is presumed to have developed an expertise which requires the courts to accept its construction of that law if it is not unreasonable.

What is standard applied by the courts in such cases? The Second Department said that [a]s long as the PERB interpretation is legally permissible and does not breach constitutional rights or protections, the courts will not disturb that determination.

PERB had decided that the thrust of Local 589’s unfair practice charge was that the new documentation requirement violates the established terms of the Procedure. In view of the specific language contained in the Procedure concerning resolving disputes concerning its provisions -- shall be subject to review only by judicial proceeding -- the Appellate Division said that PERB’s determination that it could not review the improper practice charge was a reasonable and supportable interpretation of the parties’ agreement.

Smoke breaks ruled off-duty activity

Smoke breaks ruled off-duty activity
Eckerson v State and Local Retirement Systems, 270 AD2d 705, motion for leave to appeal denied, 95 NY2d 756

Significant accidental disability retirement benefits are available to members of the New York State and Local Retirement Systems [ERS] who are disabled as the result of an accident incurred in performing official duties.

In the Eckerson case, the Appellate Division considered the issue of what constitutes performing official duties for the purpose of establishing eligibility for accidental disability retirement benefits.

Dennis Eckerson, an employee of the Central New York Psychiatric Center, slipped and fell returning from a designated smoking area to the building where he worked.

ERS ruled that Eckerson was not in service when he was injured returning from his smoking break and disapproved his application for accidental disability retirement benefits. Eckerson filed an Article 78 petition challenged ERS’ determination.

Admitting that he smoked a cigarette prior to his fall, Eckerson also testified that he went to the smoking area to conduct work-related business. This conflicting evidence, said the Appellate Division, created a credibility issue for ERS to resolve. The court sustained ERS’ conclusion that Eckerson’s representation that he went to the smoking area to conduct official business was not creditable.

The court also noted that in considering accidental disability retirement applications filed by other ERS members based on a “slip and fall” on their employer’s premises, ERS had concluded that the member was not in service for the purpose of eligibility for such benefits in situations where:

1. The employee had not yet reported for work [Farley v McCall, 239 AD2d 779];

2. The employee was injured during a lunch break [Nappi v Regan, 186 AD2d 855]; and

3. The employee was injured after the work shift had ended [DiGuida v McCall, 244 AD2d 756].

The Appellate Division said that it found nothing irrational in ERS’ applying a similar rationale in the case of an injury sustained by an employee during his or her smoke break where the member cannot demonstrate that he or she was conducting official business at the time.

On the issue of credibility, frequently the review of an application for accidental disability retirement benefits involves conflicting evidence.

In Giebner v McCall, 270 A.D.2d 705 , also decided by the Appellate Division, the court held that where the record contains contradictory medical evidence concerning whether the applicant was permanently disabled, it was within ERS’s discretion to evaluate the differing medical opinions and resolve the conflict against the applicant.

The Appellate Division applied the same standard in resolving the question of determining credibility in Eckerson’s case.

March 30, 2011

Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error

Failure to give preclusive effect to a criminal conviction in an administrative disciplinary action involving the same incident reversible error
Matter of Social Servs. Employees Union, Local 371 v City of New York, Dept. of Juvenile Justice, 2011 NY Slip Op 02455, Appellate Division, First Department

Judge Alice Schlesinger confirmed an arbitration award reinstating Bowana Robinson to his position as an institutional aide at the City of New York's Department of Juvenile Justice. The award also provided Robinson with back pay and seniority.

The Appellate Division vacated the lower court’s ruling and remanded the matter to the arbitrator “for a determination of an appropriate penalty.” The court said that the arbitrator had failed to “give preclusive effect” to the fact that Robinson had plead guilty plea of petit larceny, which “was irrational” and the arbitrator’s award “places Robinson back into a position where he has the responsibility to voucher property of individuals being brought into a juvenile facility.”

The ruling in Kelly v. Levin, 440 NYS2d 424 involved a similar situation - an administrative tribunal's failure to give preclusive effect to a relevant criminal conviction by a court. Kelly involved a school business administrator charged with larcenies of school funds and bringing discredit upon the school district.

The Education Law §3020-a disciplinary panel found the Kelly guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges. Kelly, however, had been convicted of two counts of grand larceny for theft of school property prior to being served with the §3020-a disciplinary charges (see People v Kelly, 72 AD2d 670).

The court ruled that it was 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 decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02455.htm .

Refusing a light duty assignment may affect eligibility for other benefits

Refusing a light duty assignment may affect eligibility for other benefits
Peluso v Fairview Fire District, 269 AD2d 623

One factor to consider in cases involving claims resulting from job related injuries or disease: the impact of refusing to accept a light duty assignment with respect to other benefits that might be available to a disabled worker.

Clearly both General Municipal Law Section 207-a, applicable to firefighters and General Municipal Law Section 207-c, applicable to law enforcement personnel, provide for the discontinuation of benefits if a disabled police officer or firefighter declines to perform a light duty assignment consistent with his or her position unless the individual can produce evidence that he or she is medically unqualified to perform the light duty assignment.

In the Peluso case, the Appellate Division agreed with the Workers’ Compensation Board that Peluso’s rejection of a light duty assignment was evidence that he had voluntarily withdrew from the labor market. This, said the court, justified the Board denying his claim for workers’ compensation benefits.

Peluso retired from his position of fire captain, claiming he could no longer work as the result of a disabling back condition caused by several job related injuries.

The Appellate Division, in affirming the Board’s action, said that the fire chief’s testimony that several different types of light-duty assignments were available to all firefighters, including Peluso, depending on the nature of the disability constituted substantial evidence sufficient to sustain the Board’s determination.

The fire chief had testified that Peluso did not request a light-duty assignment, did not accept a light duty assignment when one was offered to him and that he continued to perform his regular duties as a captain, including responding to two calls on his last day of work.


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


Disclosure of the terms of settlement agreements pursuant to a FOIL demand

Disclosure of the terms of settlement agreements pursuant to a FOIL demand

Hansen v Wallkill, App. Div., 2d Department, 270 AD2d 390

Sometimes an individual and an employer decides to terminate the individual’s employment or settle a disciplinary action in accordance with agreed upon terms and conditions. Such an agreement typically contains a “non-disclosure” clause. What happens if the terms of the settlement are made public without the expressed consent of both parties? This was the issue raised in the Hansen case.

Jon Hansen and the Town of Wallkill entered into a settlement agreement that required the Town to make “severance payments” to Hansen. When the town supervisor, Howard Mills, revealed the amount of the severance payments being made to Hansen under the terms of the agreement to the town board, Hansen sued for damages, claiming the disclosure constituted a breach of contract.

Hansen pointed to a clause in the agreement that provided that the terms of the settlement were to remain confidential except as may be required by law or legal process.

Mills, on the other hand, argued that the town board was told the amount of Hansen’s severance pay in response to a question during a regular meeting and that his disclosing this information was required under the Freedom of Information Law (FOIL).*

The Appellate Division sustained a lower court’s ruling dismissing Hansen’s complaint.

The court said that “[i]t is well settled that FOIL imposes a broad duty of disclosure on government agencies,” citing Section 84 of the Public Officers Law.

In essence, all public records are to be disclosed pursuant to a FOIL demand except:

1. When disclosure is specifically prohibited by law or by a court order; or

2. Where a record falls within an exception which permits the custodian of the record or document, as a matter of the exercise of discretion, to withhold the information and the entity elects to exercise its discetion and withholds it.

The disclosure of the amount of the severance payment, said the court, does not fall within any of the FOIL exceptions. Further, while the town supervisor did not seek court authorization for the disclosure, the agreement did not require prior court authorization to do so.

Suppose the information sought under FOIL concerns a disciplinary settlement. Can a public employer agree to keep the settlement document confidential?

This issue was considered by the Appellate Division in LaRocca v Jericho UFSD, 220 AD2d 424. In LaRocca, the court decided that the terms of a disciplinary settlement were subject to disclosure under FOIL.

The court held that a disciplinary settlement agreement did not constitute an employment history as defined by FOIL and therefore was presumptively available for public inspection. In addition, the court said that “as a matter of public policy, [a public employer] cannot bargain away the public’s right to access to public records.”

The Appellate Division decided that a settlement agreement, or any part of it, providing for confidentiality or denying the public access to the document is unenforceable as against the pubic interest.

The settlement agreement between LaRocca and Jericho, however, contained references to charges that LaRocca denied, or were not admitted, together with the names of other employees. The Appellate Division held that disclosure of those specific portions of the agreement would constitute an unwarranted invasion of privacy within the meaning of FOIL and thus could be redacted from the document.

* A “FOIL request” is the method used by an individual to inform the custodian of the public record involved that he or she wishes to inspect or copy public records and to identify the particular documents or records of interest.

March 29, 2011

Employee suspended without pay for eight days after being found guilty of refusing to immediately comply with supervisor’s instruction

Employee suspended without pay for eight days after being found guilty of refusing to immediately comply with supervisor’s instruction
NYC Dept. of Transportation v Solli, OATH Index #2888/10 .

OATH Administrative Law Judge Kara Miller recommended dismissal of charges brought against a New York City Department of Transportation employee. .

With respect to charges involving an alleged verbal and physical altercation with a co-worker with a co-worker, Judge Miller determined that the employee, Donna Solli, attempted to avoid a confrontation with a co-worker by leaving the area. .

The co-worker, however, followed Solli to a different location and initiated physical contact. Judge Miller found that “the force used by [Solli], if any, was defensive. .

Solli was also served with a separate charge of insubordination. The Department alleged that Solli refused her supervisor’s instructions to repair a pothole.

Although Solli ultimately complied with the supervisor’s directive, Judge Miller ruled that her failure to do so promptly was misconduct. .

The ALJ recommended that the Department place Solli on suspension without pay for eight days. . The decision is posted on the Internet at:

Extending a promotion eligible list following wrongful disqualification

Extending a promotion eligible list following wrongful disqualification
Matter of Carozza v City of New York, 37 AD3d 247

Brigitte Carozza won her lawsuit contending that she and her co-plaintiffs had been “wrongfully disqualified retroactively from consideration for promotion by reason of having just been placed in new job titles” (see Matter of Carozza v City of New York, 10 AD3d 488 [2004]).* As a result, Carozza and her co-plaintiffs were placed on promotion eligible lists just one month before those lists expired.

Carozza and her co-plaintiffs immediately brought a second lawsuit seeking the creation of special eligible lists pursuant to Civil Service Law §56(3). The placement of their names on such a list would provide them with an additional period of eligibility for promotion from a list. Carozza, and her co-petitioners, however, were not as successful in this second action.

The Appellate Division ruled that Carozza’s “successful challenge” to her, and her co-petitioners’ disqualification was not based on a finding that an error had caused a flaw in the entire promotional process, resulting in a list that did not accurately measure the merit and fitness of those candidates whose names were on the list.**

Accordingly, said the court, the remedy sought in this second lawsuit “does not comport” with the merit and fitness mandate set out in Article V, Section 6 of the New York State Constitution.

The court’s rationale: “Under the circumstances, it cannot be said that the original lists had no legal existence and thus could not have expired.”

The decision is posted on the Internet at


* In Carozza I, the court said: “CSC rationally concluded that the employees' acceptance of jobs in a new title series could not retroactively disqualify them for promotions in their old title series for which they were qualified at the time they took the promotional examination, at least in the absence of clear notice that by accepting the new jobs they were effectively voiding the examinations and otherwise disqualifying themselves for promotion in the old series.”

** Civil Service Law §56(3), in pertinent part, provides as follows: Notwithstanding any law to the contrary, the name of any applicant or eligible whose disqualification has been reversed or whose rank order on an eligible list has been adjusted through administrative or judicial action or proceeding shall be placed on an eligible list for a period of time equal to the period of disqualification or for the period the application has been improperly ranked, up to a maximum period of one year or until the expiration of the eligibility list, whichever is longer. If an eligible list expires prior to the expiration of such period of restoration, the name of the applicant or eligible shall be placed on a special eligible list, which shall have a duration equal to the remainder of the period of restoration.

Scope of arbitrating an alleged violation of a collective bargaining agreement

Scope of arbitrating an alleged violation of a collective bargaining agreement

Richfield Springs CSD v Allen, 270 AD2d 734

Changes in health insurance benefits may be initiated by a third party that actually provides the benefit. Does an employee organization have any right to challenge a unilateral change in the health insurance plan made by the third party?

This was the major issue in Richfield Springs, a case that essentially explores the issue of the scope of arbitration under a Taylor Law agreement.

The health insurance plan covering members of the Richfield Faculty Association was changed. The plan had been established under Sections 92-a and 119 of the General Municipal Law and was commonly referred to as the BOCES plan.

The Association’s basic objection: there was a change of carriers responsible for administering the BOCES Plan’s coverage for prescription drugs. The Association’s basic concern: the coverage to be provided by the new carrier would be inferior to the coverage under the BOCES’s existing plan.

The Association demanded that the former prescription drug insurance be continued and that unit members be given reimbursement for any financial loss that they incurred as a result of the change. To enforce its demand, the Association filed a grievance formally objecting to the change. Eventually Richfield Springs Faculty Association President Tracy Allen demanded that the Association’s grievance be submitted to arbitration.

In response to the demand for arbitration, the Richfield Central School District asked for, and obtained, a stay of arbitration from a State Supreme Court judge. Its argument: the dispute was not subject to the arbitration clause of the Agreement. The Association appealed.*

The Appellate Division reversed the lower court’s ruling. The court decided that the Association’s grievance regarding the change in the carrier of the prescription drug plan covering its members is arbitrable after all.

The court explained that “[i]t is settled law that grievances arising under public sector parties’ collective bargaining agreements are subject to arbitration where both arbitration of the subject matter of the dispute is authorized by the Taylor Law (Civil Service Law Article 14) and the parties clearly agreed by the terms of their contractual arbitration clause to refer their differences in the specific disputed area to arbitration,” citing Matter of Liverpool Central School, 42 NY2d 509.

This view was amplified by the Court of Appeals in a subsequent ruling, Matter of Watertown Education Association, 93 NY2d 132.

Using a two-step analysis, first the Appellate Division applied the Liverpool test and concluded that contract arbitration clause in the contract covered the subject matter of the dispute. It then applied the Watertown test -- did the parties in fact agree to arbitrate this particular grievance? It concluded that the parties had so agreed.

The court pointed to the fact that the Richfield Springs collective bargaining agreement specifically included a clause stating that prescription drug coverage was to be provided by Prescription Card Services (PCS). Further, said the court, the Agreement expressly provided that [a]ny change in [insurance] plan or carrier shall be by mutual agreement of the parties.

The Appellate Division said that since there is no dispute that the specified carrier of the prescription drug plan was changed from PCS to another provider without the Association’s consent, this supported the claim of an alleged violation of the Agreement, which the parties clearly and unequivocally agreed to arbitrate.

What about the district’s argument that it was not compelled to arbitrate changes unilaterally initiated by a third party? The Appellate Division decided that this was irrelevant insofar as the parties to the collective bargaining agreement were concerned.

The decision indicates that the fact that the claimed reduction in employee health benefits may have been effected by a third party, here the BOCES Plan’s Board of Directors, which was not a party to the collective bargaining agreement, rather than by the school district, does not determine whether or not the grievance is arbitrable.

The test applied by the Appellate Division: where the parties broadly agreed to arbitrate any alleged violation of their collective bargaining agreement or any dispute with respect to its meaning or application, and included language dealing specifically with health insurance benefits, a grievance concerning a claimed reduction in health insurance benefits is arbitrable.

Accordingly, the Appellate Division ruled that the Association’s grievance was arbitrable and the scope of the pertinent provisions of the Agreement and the merits of the grievance should be resolved by the arbitrator.

In another case involving the implementation of a contract arbitration procedure, In re Marinelli (Keller), 269 AD2d 750, the Appellate Division, Fourth Department granted Keller’s motion to compel the arbitration of a contract dispute.

Keller, as president of the Wayne Finger Lakes BOCES Faculty Association, had submitted a grievance claiming that the BOCES’s scheduling of a work day prior to Labor Day was in violation of an express provision in the collective bargaining agreement.

When the BOCES refused to submit the question to arbitration, Keller filed a petition to compel arbitration pursuant to Article 75 of the Civil Practice Law and Rules.

The Appellate Division pointed out the collective bargaining agreement in question defined an arbitrable grievance as a claim by any member of the bargaining unit based on a violation of any of the specific and express provisions of this Agreement.

The court agreed with the Association that parties agreed `by the terms of their particular arbitration clause to refer their differences in this specific area to arbitration.’

However, there are other considerations that may preclude a unilateral change in a Taylor Law agreement from being submitted to arbitration.

Although not identified as an issue in the Richfield Springs case, as the Appellate Division, Second Department noted in Port Washington USFD v Port Washington Teachers Association, 268 AD2d 523, [motion for leave to appeal denied, 95 NY2d 761], a statute, decisional law or public policy may preclude referring a Taylor Law contract dispute to arbitration.

In Port Washington, the parties agreed to include a specific religious holiday provision in a Taylor Law agreement. The clause allowed employees to be absent with pay to observe certain religious holidays without charging any leave accruals. The school district then refused to implement the provision, claiming that it was unconstitutional.

The Appellate Division agreed that the provision was unconstitutional and held that the school district’s refusal to implement the contract clause was not subject to arbitration under the contract’s grievance procedure.


* Initially the Association’s motion to compel arbitration was granted by the Supreme Court but subsequently an amended order was issued staying arbitration based on the court’s finding that the Taylor Law agreement did not bind the district to arbitrate disputes between the Association and a third party, here the BOCES Plan administrators.

Liquidation of sick leave benefits upon retirement

Liquidation of sick leave benefits upon retirement
O’Brien v Deer Park UFSD, USDC, EDNY, 127 F. Supp.2d 342

Federal District Court Judge Denis R. Hurley ruled that paying teachers who retire after age 55 less for their unused sick leave than that paid to teachers who retire before attaining age 56 as provided by the terms of an agreement negotiated pursuant to the Taylor Law violated the federal Age Discrimination in Employment Act [ADEA] and the Older Workers’ Benefit Protection Act [OWBPA].

The collective bargaining agreement provided that teachers who retired during the first year after reaching age 55 would be paid in full for all of their accumulated sick leave; those who retired later, i.e. at age 56 or older, would per paid a decreasing percentage of the full value of their sick leave credits.

The court said that under ADEA and Older Workers Benefit Protection Act, employment benefits must be equally available regardless of age.

March 28, 2011

Applicant denied unemployment insurance benefits after being terminated for sexual harassment after a disciplinary hearing

Applicant denied unemployment insurance benefits after being terminated for sexual harassment after a disciplinary hearing
Matter of Nwaozor v City of New York, 2011 NY Slip Op 02098, Appellate Division, Third Department

Pius C. Nwaozor, a supervisor for the Department of Homeless Services, was served with disciplinary charges alleging sexual harassment involving a client of the agency. Although the arbitrator determined that Nwaozor was guilty of certain charges and that suspension without pay should be imposed as the penalty, the appointing authority dismissed him from his position.

When his application for unemployment insurance benefits was ultimately rejected by the Unemployment Insurance Appeal Board, Nwaozor appealed.

The Appellate Division affirmed the Board’s determination.

Nwaozor had argued that the Board was bound by the arbitrator’s determination that although he was found guilty of sexual harassment, his termination “was unwarranted.”

The Appellate Division disagreed, pointing out that the Board is required to give the arbitrator’s determination collateral estoppel effect. It is then “incumbent upon the Board to make an independent evaluation” as to whether Nwapzpr’s constituted ‘misconduct’ for the purposes of unemployment insurance.

The arbitrator found that Nwaozor had sexually harassed a client, which behavior is detrimental to his employer's interest. Accordingly, said the court, the Board's decision disqualifying Nwaozor from receiving benefits due to misconduct was rationally based.

The decision is posted on the Internet at:


Certifying the preferred list to fill a vacancy

Certifying the preferred list to fill a vacancy
Castle v Putnam-Westchester BOCES, 269 AD2d 394

Section 3013 of the Education Law deals with layoff upon the abolishment of a position by a school district or a BOCES.

The statute provides, in pertinent part, for the reinstatement of a person who has been laid off “to an office or position similar to the one, which such person filled without reduction in salary or increment....”

The implication of the Castle decision by the Appellate Division is that an employer is not obligated to combine two part-time positions into a single full-time position in order to reinstate an educator whose name is on a preferred list. Lorraine Castle, then a full-time school psychologist, was excessed from her position.

When Castle learned that two part-time school psychologist positions were created she asked the court to direct that these two positions be combined into one full-time position and order her reinstatement with back salary.*

Castle’s basic argument: Putnam-Westchester BOCES should have combined the two part-time positions to create one full-time position and then reinstated her from the preferred list rather than employee two part-time per diem school psychologists. The Appellate Division disagreed and affirmed a lower court’s ruling dismissing her petition.

According to the ruling, there was no “vacancy” within the meaning of Section 3013(3) for the purposed of entitling Castle to have her name certified from the preferred list for appointment. The court cited Zurlo v Ambach, 75 AD2d 662, as authority for its ruling.

In Zurlo, the Appellate Division, Third Department, Judge Mikoll dissenting, approved a school board’s creating two three-quarter time positions rather than one full-time position and one half-time position notwithstanding the fact that Zurlo, who was appointed to one of the new three-quarter time positions, was on a preferred list after having been excessed from a full-time position. In contrast, the fact that an appropriate preferred list is available to fill a vacancy does not mandate that the appointing authority actually fill an existing vacant position.

If, however, an appointment is to be made to the vacancy, the preferred list must used.

* An individual whose name is on a preferred list may be appointed to a position for which he or she is otherwise qualified “part-time.” If the individual whose name is on a preferred list is appointed to a “part-time position” or in a different full-time position in the same jurisdiction, or is employed full-time by another jurisdiction, he or she would retain his or her preferred list status for appointment to a full-time position that is “the same or similar” to his or her former position should one become available while his or her name is on the preferred list.

The Layoff, Preferred List and Reinstatement Manual
- a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

Vacating an arbitration award

Vacating an arbitration award
Westchester County v CSEA Local 869, 270 AD2d 348, leave to appeal denied, 95 NY2d 755

It is unusual for an arbitration award to be vacated by a court, given the limited reasons for vacating such an award set out in Article 75 of the Civil Practice Law and Rules.

However, the Appellate Division, Second Department found justification for doing just that after an arbitrator reinstated a union member to his former position after he had been terminated by Westchester County. The arbitrator issued an award reinstating Local 869 unit member Donald Holtum to his position as Lead Technical Assistant at Westchester Community College.

The County challenged the decision and a State Supreme Court judge vacated the award. Local 869 appealed.

The Appellate Division affirmed the lower court’s ruling, finding that the award was irrational within the meaning of Article 75. According to the ruling, the arbitrator’s interpretation of the parties’ collective bargaining agreement was “unsupported by the plain language of that agreement...” thereby justifying its being vacated by the court.

March 25, 2011

All Correction Law §753 factors must be considered before disqualifying an applicant because of his or her conviction of a crime

All Correction Law §753 factors must be considered before disqualifying an applicant because of his or her conviction of a crime
Matter of Acosta v New York City Dept. of Educ., 2011 NY Slip Op 02073, Court of Appeals

In this decision the Court of Appeals explains that where a prospective employer rejects an applicant for employment because of that individual’s conviction of a crime, Correction Law §753 requires that the employer must determine that the conviction is relevant to the duties of the position or poses an unreasonable danger to clients, co-workers or the public.*

In affirming the Appellate Division’s ruling, the Court of Appeals said that it concluded that “the New York City Department of Education (DOE) failed to comply with the requirements of the Correction Law and thus acted arbitrarily in denying [Acosta’s] application for security clearance.”

The Court of Appeals explained:

The Legislature has determined that, as a general rule, it is unlawful for a public or private employer to deny an application for a license or employment on the ground that the applicant was previously convicted of a crime. This general prohibition advances the rehabilitation and reintegration goals of the Penal Law. Furthermore, barring discrimination against those who have paid their debt to society and facilitating their efforts to obtain gainful employment benefits the community as a whole. The "direct relationship" exception and the "unreasonable risk" exception to this general rule may be resorted to only upon a consideration of each of the eight factors enumerated in Correction Law §753 (see Arrocha, 93 NY2d at 364).

As to the “direct relationship” exception, here there must be “a direct relationship between one or more of the previous criminal offenses and the specific license or employment sought or held by the individual" in order to deny the applicant the employment or a license.

The second exception, “unreasonable risk” permits the denial of employment or a license to an individual where "the issuance or continuation of the license or the granting or continuation of the employment would involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public."

The following eight criteria must each be considered by the appointing authority:

1. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.

2. The specific duties and responsibilities necessarily related to the license or employment sought or held by the person.

3. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.

4. The time which has elapsed since the occurrence of the criminal offense or offenses.

5. The age of the person at the time of occurrence of the criminal offense or offenses.

6. The seriousness of the offense or offenses.

7. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.

8. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public."

In the words of the Court of Appeals, A failure to take into consideration each of these factors results in a failure to comply with the Correction Law's mandatory directive.

* NYPPL’s summary of the Appellate Division’s ruling, 62 AD3d 455, is posted on the Internet at http://publicpersonnellaw.blogspot.com/2010/02/rejection-of-applicant-for-employment.html ]

The Court of Appeal's decision is posted on the Internet at:

Evidence - "Because I said so" isn't enough

Evidence - "Because I said so" isn't enough
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

One of the more frequent causes of court appeals of administrative decisions arises from the tendency of administrative decision makers to make decisions based on their experience and gut feelings rather than objective evidence. Somebody who has been in the business for a long time may come to believe that she or he knows what is going on and everyone else should just listen - ipse dixit in old Law Latin. But that's not due process. On her Law of the Land blog, Patty Salkin describes a recent Pennsylvania case where this happened in "PA Appeals Court Agrees that City Must Issue Condition Use Permit for Strip Club Where City Failed to Meet Burden of Proof".

The Pittsburgh zoning code was updated in 2009 and permitted adult entertainment as a conditional use in the Urban Industrial zoning district. Marquise wanted to operate a strip club on land in the urban industrial zone, but the City Council failed to hold a hearing as was required by the Pittsburgh Code and Marquise’s application was subsequently denied. The trial court granted the application and the City appealed.The City argued on appeal that it had presented substantial evidence that the proposed strip club would cause harm to the health, safety and welfare of the community. The Court noted that the burden of persuasion as to health, safety and welfare concerns falls on the objector, in this case the City. The Court looked to the language in the ordinance and determined that the burden of persuasion had not expressly shifted to the applicant.

Instead, the Court noted that the applicant only had to show specific requirements while the City had the burden to show all general policy concerns and negative effects.

Marquise satisfied all of the required specific conditions set out in the Pittsburgh Code. The Court further noted that the City only presented speculative evidence of the possible harm that would be caused by granting the conditional use permit. Additionally, the City failed to present any evidence of potential health and safety impacts as well as evidence that the proposed strip club would cause a detrimental effect on traffic. The Court held that there was sufficient evidence to support the trial court’s decision.

I guess these cases are often about adult entertainment facilities because you have enough money on one side and enough moral outrage on the other to get the case to a published level. Speculation isn't evidence. Also, by not holding a hearing the City Council lost the benefit of judicial deference.


Randall comments: This is a two-way street as the Appellate Division indicated in Murane v Department of Educ. of the City of New York. In Murane the court noted that the employee’s contention that she received an unsatisfactory performance rating because the principal was biased against was "speculative and insufficient to establish bad faith." In other word, Murane was iewed by the court as ipse dixit* as she failed to present evidence sufficient to demonstrate bad faith on the part of the principal to support her allegation. The Murane decision is posted at: http://publicpersonnellaw.blogspot.com/2011/03/four-month-statute-of-limitations-for.html.

* Latin: He himself said it. An unsupported statement that rests solely on the authority of the individual who makes it.

Terminating of a tenured public officer without an administrative hearing

Terminating of a tenured public officer without an administrative hearing
Pirozzi v Safir, App. Div., First Department, 270 AD2d 2, motion for leave to appeal denied, 95 NY2d 756

New York City police officer John Pirozzi was terminated from his position without a hearing after he was convicted of a crime he committed in the line of duty and that the appointing authority deemed constituted a violation of Pirozzi’s oath of office.

Claiming that he was entitled to administrative due process before he could be removed from his position, Pirozzi sued. The department, citing Section 30(1)(e) of the Public Officers Law, argued that Pirozzi was removed by operation of law upon his conviction and thus he was not entitled to a pre-termination hearing.*

The Appellate Division agreed and dismissed Pirozzi’s petition. The court said that Pirozzi was properly terminated from the Police Department without a hearing in light of his conviction of aggravated harassment in the second degree. The court cited Duffy v Ward, 81 NY2d 127, as authority for its ruling.

However, in the event a public officer is terminated pursuant to Section 30(1)(e) as a result of his or her conviction of a felony, or a crime involving the violation of his or her oath of office, and the conviction is later reversed or vacated, the individual may request reinstatement to his or her former position, except in cases where the former position was “an elective office.” In the event the appointing authority denies the individual’s request for reinstatement his or her former position, he or she is entitled to a hearing with respect to that decision if the initial conviction was the only basis for the termination.

* Section 30(1)(e) of the Public Officers Law applies only in cases where the individual is a public officer. A police officer is a public officer. Although every public officer is a public employee, not every public employee is a public officer.

The Discipline Book - a concise guide to disciplinary actions involving public employees in New York State is a 1272 page e-book available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/ for additional information concerning this electronic reference manual.

Refusal to accept shift reassignment results in employee's dismissal for "unauthorized absence"

Refusal to accept shift reassignment results in employee's dismissal for "unauthorized absence"
Kennedy v City of New York, 270 AD2d 93

The Kennedy decision demonstrates the importance of the following the principle “obey now; grieve later.”* In Kennedy’s case, her failure to honor that principle led to a disastrous results.

Stephanie Kennedy, an untenured employee in the noncompetitive class, was involuntarily reassigned to the night shift. She filed a grievance contending that a less senior employee should have been assigned to the night shift and refused to report to her assignment on the night shift while her grievance was pending.** As a result, she was terminated from her position.

Kennedy sued, alleging that her dismissal was made in bad faith because she was involuntarily reassigned to another shift without having been given a reasonable opportunity to arrange for childcare. The Appellate Division ruled that Kennedy’s termination was not made in bad faith.

The court pointed out that Kennedy presented no evidence that she had sought “an accommodation with respect to the transfer*** while she tried to arrange for childcare or invoked the hardship exception provisions of the collective bargaining agreement.”

The problem, said the court, was that Kennedy absented herself from work without permission while she pursued her unsuccessful grievance based on her claim that other, more junior employees should have been made to work the night shift. This unauthorized absence neutralized any inference of bad faith on the part of the appointing authority when it discharged her.

* However, there are exceptions to this general rule such as where complying with the employer’s directive would involve an unlawful act or expose the individual or others to bodily harm.

* Kennedy’s grievance was ultimately denied.

*** The court’s decision characterized Kennedy’s change to the night shift as a transfer. It would be better to have described it as a reassignment. Transfers within the meaning of the Civil Service Law involve a movement of a individual under the jurisdiction of one appointing authority to another; a reassignment of an individual involves his or her change from one position to a different position under the jurisdiction of the same appointing authority.

March 24, 2011

Arbitrator’s award based on a finding of “past practice” did not modify the collective bargaining agreement between the parties

Arbitrator’s award based on a finding of “past practice” did not modify the collective bargaining agreement between the parties
Matter of Romaine v New York City Tr. Auth., 2011 NY Slip Op 02015, Appellate Division, Second Department

The Appellate Division affirmed a Supreme Court decision confirming an arbitration award, noting that “An arbitration award rendered after a consensual arbitration may be vacated by a court only on the grounds set forth in CPLR 7511(b).*

The court ruled that the arbitrator had not modified the relevant collective bargaining agreement [CBA] by relying on “past practices” to determine that the New York City Transit Authority was required to assign "shuttle work" to volunteers on its overtime list.

The arbitrator essentially determined that a mutual agreement had developed between the parties with respect to “shuttle work” over the past 20 years, which was an integral part of the collective bargaining agreement and “did not negate or bypass an express provision of the CBA.”

The Appellate Division also rejected the Transit Authority’s argument that the arbitration award “violates a strong public policy,” commenting that "[T]he scope of the public policy exception to an arbitrator's power to resolve disputes is extremely narrow."

Here, said the court, the Authority failed to show that the "court can conclude without engaging in any extended fact-finding or legal analysis that a law prohibit[s], in an absolute sense, [the] particular matters [to be] decided'" or that the award itself violates a well-defined law of this State.”

* The Appellate Division also noted that “A court may vacate an arbitration award on the ground that the arbitrator "exceeded his [or her] powers" within the meaning of CPLR 7511(b)(1)(iii) "only where the arbitrator's award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

The decision is posted on the Internet at:

Employee found guilty of providing sensitive information about a narcotics investigation dismissed from her position with the police department

Employee found guilty of providing sensitive information about a narcotics investigation dismissed from her position with the police department
Matter of Villar v Kelly, 2011 NY Slip Op 02058, Appellate Division, First Department

The New York City Commissioner of Police dismissed Maria Villar from her position after finding that she had “wrongfully discussed and divulged official department business” involving sensitive information concerning an investigation.

The Appellate Division sustained the Commissioner’s determination and the penalty imposed. The court found that the decision to dismiss Villar was supported by substantial evidence.

The court noted that “Given the risk to the general public arising from the passing of sensitive information about a narcotics case to another subject of the same ongoing narcotics investigation, the penalty of dismissal does not shock our sense of fairness.”

The decision is posted on the Internet at:

Legislative immunity bars unlawful discrimination lawsuit

Legislative immunity bars unlawful discrimination lawsuit
Almonte v. City of Long Beach, 478 F. 3d 10

In a civil rights and wrongful discharge case based on the members of the City of Long Beach’s city council voting to eliminate the funding for a number of positions, a federal district court rejected Long Beach’s motion to dismiss the complaint.

The Federal Circuit Court of Appeals, Second Circuit, reversed the lower court’s decision.

The Circuit Court said that Legislative immunity applies not only to the council members' budget vote to eliminate funding the positions in question, but also to any discussions and agreements members may have had regarding the new budget prior to the vote, regardless of whether those discussions and agreements took place in secret.

The decision is posted on the Internet at:

Rules of the Civil Service Commission providing for separate Layoff Units for law enforcement personnel employed by Environmental Conservation

Rules of the Civil Service Commission providing for separate Layoff Units for law enforcement personnel employed by Environmental Conservation
Source: New York State Register March 23, 2011 - Volume XXXIII, Issue 12

The New York State Civil Service Commission has adopted rules providing for the Agency Law Enforcement Services negotiating unit of the Department of Environmental being designated separate units for the purposes of suspension, demotion of displacement (layoff units) pursuant to §§80 and 80-a of the Civil Service Law.

The text of rule may be obtained from Ms. Shirley LaPlante, NYS Department of Civil Service, AESSOB, Albany, NY 12239, (518) 473-6598, email: shirley.laplante@cs.state.ny.us

The Civil Service Commission did not receive any public comment concerning this change during the comment period.

March 23, 2011

Four-month statute of limitations for filing an Article 78 petition not tolled while individual pursues his or her administrative remedies

Four-month statute of limitations for filing an Article 78 petition not tolled while individual pursues his or her administrative remedies
Matter of Murane v Department of Educ. of the City of New York, 2011 NY Slip Op 02054, Appellate Division, First Department

Jennifer Murane appealed the Supreme Court’s dismissal of her Article 78 petition seeking to annul her termination as a probationary teacher by the New York City Department of Education, to have her year-end unsatisfactory rating expunged from her record and to direct her reinstatement to her position.

The Appellate Division ruled that Supreme Court correctly ruled that her challenge to her termination as a probationary teacher was untimely, not having be brought within four-months of the effective date of her termination. The fact that Murane had pursued her administrative remedies, said the court, did not toll the four-month statute of limitations for filing an Article 78 action.

Although Murane’s petition for judicial review of her unsatisfactory performance rating was not untimely, the Appellate Division said that she “failed to show that the rating was arbitrary and capricious or made in bad faith.” Detailed observation reports by the principal and assistant principal describing her poor performance in class management, engagement of students, and lesson planning, provided a rational basis for the rating.

As to Murane’s claim of “bad faith,” the court ruled that her contention that the principal was biased against her was "speculative and insufficient to establish bad faith."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02054.htm

Tests for determining the “arbitrability” of Taylor Law contract provisions

Tests for determining the “arbitrability” of Taylor Law contract provisions
Odessa-Montour CSD v Odessa-Montour Teachers Asso., 271 AD2d 931

The Odessa-Montour decision by the Appellate Division, Third Department applied the guidelines set out in the Court of Appeal’s ruling in Watertown City School District v Watertown Education Association, 93 NY2d 132. Watertown addresses issues involving demands for arbitrating alleged violations of Taylor Law agreements. The ruling also suggests that Watertown may not be as much of a closed door to obtaining a stay arbitration involving grievances arising from alleged violations of Taylor Law agreements as some may believe.

In Watertown the Court of Appeals held that any anti-arbitrational presumption implied by its previous ruling in the Liverpool case, [Liverpool Central School District v United Liverpool Faculty Association, 42 NY2d 509], is no longer justified in the public sector labor environment.

In applying the Watertown ruling in deciding Odessa-Montour, the Appellate Division signaled that Watertown does not mean that every grievance flowing from alleged violations of Taylor Law agreements are automatically arbitrable. The Appellate Division explained that the Court of Appeal’s decision in Watertown indicates only that the anti-arbitrational presumption is no longer valid -- two tests must still be met:

1. The court must be satisfied that the Taylor Law authorizes arbitration of the particular subject matter; and

2. The parties agreed by the terms of their particular arbitration clause to refer such matter to arbitration.

Unless both tests are satisfied, courts retain authority to issue a stay of arbitration pursuant to Section 7503 of the Civil Practice Law and Rules. How did the Appellate Division apply these tests in resolving the Odessa-Montour appeal?

The decision indicates that when Jerry Burris retired from his position with the Odessa-Montour Central School District he decided to terminate his individual health insurance coverage in the district’s health insurance plan. Upon his retirement, Burris’ spouse, who was also employed by the district, enrolled him for dependent coverage under her health insurance coverage.

Seven years passed. Burris’ spouse requested, and was granted, a leave of absence without pay from her position with the district. Burris asked the district to re-enroll him once again in its health insurance plan -- with individual coverage. The third party plan administrator, however, denied the request because Burris had waived his right to individual coverage in favor of dependent coverage at the time of his retirement.

The Odessa-Montour Teachers Association [Association] filed a grievance, contending that rejecting Burris’ request for re-enrollment in the plan constituted a violation of its Taylor Law contract. Eventually the Association submitted the grievance to arbitration in accordance with the contract grievance procedure.

The district objected and filed a petition pursuant to Article 75 of the Civil Practice Law and Rules seeking an order barring the submission of the matter to arbitration. State Supreme Court Justice Samuel J. Castellino granted the stay.

The Association appealed, arguing that the district had agreed to arbitrate the issue of a retiree’s ability to change his or her health insurance enrollment. It made the following arguments in support of its claim:

1. The Taylor Law agreement allocates the costs of health insurance premiums between district and its retirees.

2. A clause in the agreement refers to the health insurance administrative manual and thus makes the health plan administrator’s decision to deny Burris re-enrollment ... is subject to arbitration.

3. The contract defines the term grievance as a claim by any teacher or group of teachers that there is a violation, misinterpretation, or misapplication of this Agreement and the district concedes that retirees are included in the definition of teacher within the meaning of the collective bargaining agreement.

4. The collective bargaining agreement contained a broad arbitration clause.

The Appellate Division said that the question presented to the court to resolve is whether or not the parties agreed to arbitrate the issue.

The court said that [i]n light of the narrow arbitration clause in the collective bargaining agreement at issue and Burris’ status as a seven-year retiree who voluntarily opted out of health insurance coverage at the time of retirement, we agree with Supreme Court’s ruling that the subject dispute is not subject to arbitration under the parties’ collective bargaining agreement.

Referring to Watertown, the Appellate Division observed that when considering a dispute as to whether a particular grievance is outside a collective bargaining agreement, a court should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the [collective bargaining agreement].

Its conclusion: no reasonable relationship exists between the subject matter of the instant dispute -- a retiree’s attempt to re-enroll in a health insurance plan, which he voluntarily opted out of seven years earlier -- and the general subject matter of the collective bargaining agreement.

March 22, 2011

Comic book law

Comic book law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

One of the most entertaining blawgs I follow is LAW AND THE MULTIVERSE: SUPERHEROES, SUPERVILLAINS, AND THE LAW, writting by attorneys James Daily and Ryan Davidson. They examine the legal implications of comic book characters and situations, and sometimes similar movie characters and situations. Often I forward them to my faculty members as potential discussion or exam questions. Today's post is about administrative and criminal law in the discovery and distribution of a new drug.


Limitless opened this weekend, and is the subject of LAW AND THE MULTIVERSE'S second look at a movie. Spoilers to follow, as always.

The basic premise is that Edward Morra (Bradley Cooper) stumbles across a drug, “NZT,” which massively boosts one’s memory and intelligence. This enables him to write his unstarted-and-overdue book in a matter of days, learn any language in a matter of hours, and become a concert-level pianist in a long weekend.

So basically, what we’ve got here is every nerd’s fantasy: if I was only smart enough, I’d be able to get the money and the girl.

The movie has been described as “more interesting than it has any right to be,” which is about right. But there are a number of legal issues in the movie to talk about, mostly about the drug itself.

First, a high-level overview of how drugs are regulated in the US. For a drug to be legally prescribed or distributed it must be approved by the Food and Drug Administration. Clinical trials for new drugs must also have FDA approval. Some drugs are further restricted by the Controlled Substances Act, which establishes a schedule of controlled substances, some of which can be prescribed by a doctor with a DEA number and some of which are banned outright (e.g. heroin). Finally, individual states can add to (but not subtract from!) the federal controlled substances schedule. Now we’ll look a little closer at how all of this affects NZT.

Daily and Davidson have discussed other administrative law topics, including the Social Security System, air traffic control and the FAA, Superman's immigration status, and federal export control laws. Also torts, contracts, criminal law, Constitutional law, among other subjects. And the comments are usually thoughtful. Fun and educational!


The failure to properly and timely serve the agency issuing an adverse decision results in the court lacking “personal jurisdiction” to hear the case

The failure to properly and timely serve the agency issuing an adverse decision results in the court lacking “personal jurisdiction” to hear the case
Matter of Greenburgh Cent. School Dist. No. 7 v Westchester County Human Rights Commn., 2011 NY Slip Op 02009, Appellate Division, Second Department

Public agencies are not immune to the almost always fatal procedural omission of failing properly serve the necessary parties in an appeal of an adverse administrative ruling as is demonstrated in this Article 78 action.

Greenburgh Central Schools District #7 had filed CPLR Article 78 action to review the Westchester County Human Rights Commission finding that District had engaged in unlawful age discrimination in violation of the Westchester County Human Rights Law. The Commission had also imposed a monetary penalty on the District.

Supreme Court, Westchester County, after declining to extend the statute of limitations to file such an action, dismissed the proceeding for lack of personal jurisdiction.

The Appellate Division affirmed the lower court’s ruling, pointing out that it was undisputed that the school district had failed to properly serve Westchester Human Rights with the notice of petition and petition in accordance with CPLR 312.

Further, said the court, Greenburgh “failed to demonstrate good cause for an extension of time to serve, and failed to show that such an extension is warranted in the interest of justice.”

In particular, the court noted that Greenburgh had failed to demonstrate diligence in its attempt at service, and failed to demonstrate a potentially meritorious argument in support of the petition.

The decision is posted on the Internet at:

Termination by operation of law

Termination by operation of law
Bowman v Kerik, 271 AD2d 225

Section 30.1(e) of the Public Officers Law provides that a public office becomes vacant upon the conviction of the incumbent of a felony, or a crime involving a violation of the individual’s oath of office. The significance of this provision is that no pre-termination hearing that may otherwise be viewed as mandated by law such as the proceeding set out in Section 75 of the Civil Service Law or a Taylor Law disciplinary grievance procedure is required to effect the termination.

In Bowman, Section 30.1(e) was the basis for the court’s sustaining the termination of several New York City correction officers without a hearing. As the Appellate Division noted, Section 30.1(e) is a self-executing statute and no pretermination hearing was required.

Bowman and other correction officers had challenged their dismissal without notice and hearing, claiming they were entitled to such a due process hearing. The corrections officers pled guilty to an intent to evade any tax imposed under [an] income or earnings tax statute....*

The Appellate Division found that their public offices were vacated automatically on conviction by operation of law because of the misdemeanors to which they had pleaded guilty. As noted in Kelly v Levin, 440 NY2d 424, even if these individuals were given a due process hearing, the only penalty that could be imposed by an appointing authority or hearing officer was dismissal.

* For the purposes of 30(1)(e), a plea of guilty is the equivalent of a conviction.

Challenging administrative decisions

Challenging administrative decisions
Gomez v Safir, 271 AD2d 246

The Gomez case points out a procedural trap that an individual may encounter in the event he or she delays challenging an administrative decision. In this instance the case involved a delay by a police officer in contesting an administrative decision denying his request to engage in off-duty employment.*

There two basis issues involved in this case:

1. Did a pending grievance concerning the denial of his administrative application for off-duty employment approval toll the statute of limitations for filing an Article 78 petition challenging the administrative disapproval action? and

2. Was the determination of the commissioner in denying Gomez’s request reasonable?

New York City police officer Felipe Gomez wanted to be a professional boxer. When his administrative request to work off-duty in pursuit of a boxing career was disapproved, he appealed the administrative determination to the commissioner. He also filed a contract grievance protesting the denial of his request for permission to engage in off-duty employment as a professional boxer.

First, the commissioner denied Gomez’s administrative appeal concerning permission to participate in boxing while off-duty. Gomez did not immediately challenge the commissioner’s administrative decision but decided to wait for commissioner’s decision concerning his grievance.
The commissioner also denied Gomez’s grievance, ruling that Gomez’s complaint did not involve a contractual right subject to the grievance process; Gomez then initiated an Article 78 action seeking a court order vacating the commissioner’s administrative decision.

However, by the time the commissioner issued the grievance ruling more than four months had passed by since the commissioner had issued his administrative ruling on Gomez’s administrative appeal. As a result the first issue to be resolved by the court was a procedural one -- was Gomez’s Article 78 petition appealing the commissioner’s administrative ruling timely; i.e., was it filed within four months of the final administrative determination?

State Supreme Court Judge William McCooe said it was untimely and dismissed Gomez’s petition. Why? Because, said the court, the commissioner’s administrative decision became final and binding on Gomez when he was told that the commissioner had denied his administrative appeal. Accordingly, the four-month statute of limitations for bringing an Article 78 action commenced to run at that time.

The critical element in resolving the timeliness issue: Judge McCooe said that Gomez’s attempt to resort to contractual grievance procedures did not toll the four-month limitations period, citing Lubin v Board of Education, 60 NY2d 974.

The lesson here: delays in filing an Article 78 petition because the employee is awaiting the resolution of a grievance or arbitration concerning the same issue is fatal as the Gomez decision demonstrates.

Similarly, in Roper v NYC Department of Citywide Administration, Appellate Division, Third Department, 271 AD2d 737, the court sustained the Unemployment Insurance Appeal Board’s dismissed Clyde Roper’s appeal of the denial of his unemployment insurance claim as untimely. Clyde testified that he received the ALJ’s decision but did not appeal based upon his attorney’s advice to wait for a pending arbitration decision. The court sustained the board’s conclusion that Clyde failed to comply with the 20-day filing requirement of Section 621(1) of the Labor Law and dismissed his appeal.

Although the Appellate Division dismissed Gomez’s complaint for technical reasons, it also elected to comment on the merits of his claim. The court pointed out that although Section 208-d of the General Municipal Law allows a police officer to accept off-duty employment, such employment must not affect his physical condition to the extent that it impairs his ability to efficiently perform [his or her regular] duties.

The court’s conclusion as to merits of Gomez’s appeal: given this qualification, it cannot be said that the blanket prohibition against professional boxing apparently applied here is so lacking in reason as to be arbitrary.

* A number of law enforcement agencies have adopted a policy setting the nature of off-duty employment that its officers may accept and generally require the officers to obtain prior approval before accepting off-duty employment. In some instances, the department’s off-duty work policy has been incorporated in an agreement negotiated pursuant to the Taylor Law. An employer’s restriction on employee’s use of their nonworking time is generally a mandatory subject of negotiations and the union’s acquiescence to limitations concerning off-duty work does not constitute a waiver of the right to bargain subsequent prohibition [see Sheriff’s Association and Ulster Co. Sheriff, 27 PERB 3028].

March 21, 2011

Seasonal employees not entitled to a §75 hearing having access to an Article 78 hearing satisfies constitutional due process requirements

Seasonal employees not entitled to a §75 hearing having access to an Article 78 hearing satisfies constitutional due process requirements
Edward Carter, et al v Incorporated Village Of Ocean Beach, USCA, Second Circuit 10-0740-cv*

Carter and his co-plaintiffs [hereinafter "Carter"] sued the Village and certain of its officials, alleging that they were unlawfully terminated from their respective seasonal police officer positions. They also alleged that their termination was in retaliation for reporting misconduct within the department in violation of the First, Fifth, and Fourteenth Amendments and that certain of the defendants made “derogatory statements” about them.

The federal district court ruled that Carter’s claims failed as a matter of law, concluding that Carter did not engage in “constitutionally protected speech” and thus could not establish First Amendment claims. The court said that “even if [Carter's] factual claims were credited in full, they established only that [Carter] spoke “pursuant to their official duties” and thus “not . . . as citizens for First Amendment purposes.”

The district court also ruled that Carter had not suffered a deprivation of either a protected liberty or property interest.

The Court of Appeals affirmed the lower court’s decision, holding that Carter’s allegations establish no more than that [the plaintiffs] reported what they believed to be misconduct by a supervisor up the chain of command—misconduct they knew of only by virtue of their jobs as police officers and which they reported as “part-and-parcel of [their] concerns about [their] ability to properly execute [their] duties.”

Speech, said the court, “that owes its existence to a public employee’s professional responsibilities” is made “pursuant to” that employee’s “official duties.” Accordingly, the Circuit Court concluded, Carter was not engaging in constitutionally protected speech at any relevant time and cannot make out a First Amendment claim.

As to Carter’s claim that he was deprived of a protected property interest without due process of law, the Circuit Court of Appeals said that “To state a claim for deprivation of property without due process of law, a plaintiff must, as a preliminary matter, ‘identify a property interest protected by the Due Process Clause,’” citing Harrington v County of Suffolk, 607 F.3d 31.

However, to demonstrate a property interest in public employment, the plaintiff must have “more than a unilateral expectation of” continued or future employment but instead “a legitimate claim of entitlement to it.”

Carter, said the court, established no such “claim of entitlement” in that the record establishes that all of the plaintiffs in this action were all at-will, part-time, seasonal employees who had no contractual or other basis for asserting any “entitlement” to continued or future employment.

Carter had also contended that he was entitled to a pretermination hearing in accordance with Civil Service Law §75(1)(c). However, said the court, only certain individuals who have “completed at least five years of continuous service” are entitled to such administrative due process by operation of law. In this instance, said the Circuit Court, the district court had determined that no plaintiff was employed “continuously” for a five year period, and, accordingly, that §75(1)(c) provides no support for plaintiffs’ claims.”

Finally, as to Carter’s allegations of a so-called “stigma plus” deprivation of constitutionally protected right, stigma plus’ refers to a claim brought for injury to one’s reputation (the stigma) coupled with the "deprivation of some ‘tangible interest’ or property right (the plus), without adequate process."

The Circuit Court of Appeals agreed with the district court’ holding that even assuming a “deprivation” occurred in this instance – "that is, assuming plaintiffs could establish the 'stigma' and the 'plus' – the claims would nonetheless fail because plaintiffs were afforded 'adequate process' in the form of a post-deprivation Article 78 hearing in state court."

The Circuit Court explained that “where, as here, plaintiffs are ‘at will’ government employees raising stigma-plus claims, our law makes clear that 'due process does not require a pre-termination hearing,' and access to post-termination process, such as an Article 78 hearing, is sufficient to satisfy constitutional requirements."

* N.B. This ruling is a Summary Order. Rulings by summary order do not have precedential effect.

The decision is posted on the Internet at:

Discipinary charges filed against employee for off-duty misconduct

Discipinary charges filed against employee for off-duty misconduct
Cannata v Safir, 269 AD2d 327

The Appellate Division, First Department did not have any difficulty in sustaining the decision of the Police Commissioner to dismiss New York City police officer Michael Cannata based on his finding that Cannata, while off-duty had:

1. Refused to move his illegally parked car when asked to do so by a Yonkers police officer;

2. Acted in a rude and aggressive manner, making racial remarks about the police officer; and

3. Lied about his conduct during the departmental investigation and disciplinary hearing.

Commenting that the commissioner’s determination was supported by substantial evidence, including the testimony of numerous Yonkers police officers, the Appellate Division said that there was no basis to disturb the commissioner’s credibility determinations.

Under the circumstances, the court said that "the penalty of dismissal does not shock our sense of fairness."


The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. A 1272 page e-book. For more information click on http://thedisciplinebook.blogspot.com/


March 17, 2011

Evidence lawfully obtained may be used to initiate an investigation of an employee even if similar information was received in violation of law

Evidence lawfully obtained may be used to initiate an investigation of an employee even if similar information was received in violation of law
Matter of Lomax v Kelly, 2011 NY Slip Op 01894, Appellate Division, First Department

Richard Lomax, a New York City probationary police officer, was off-duty with a fellow officer when the vehicle he was driving skidded on ice and rear-ended another car. Lomax called 911 to report the accident.

The occupants of the other vehicle, however, attacked the officers resulting in Lomax sustaining serious head injuries.

In the course of prosecuting the assailants, an Assistant District Attorney discovered that Lomax's medical records indicated that he was intoxicated at the time of the accident. This was reported to a NYPD sergeant, who then reported the finding to the Internal Affairs Bureau and ultimately Lomax was terminated.

Lomax challenged his dismissal from his position. In considering Lomax’s appeal, the Appellate Division said that “Even assuming that the Assistant District Attorney violated the Health Insurance Portability and Accountability Act of 1996 [HIPPA]* upon disclosing the contents of [Lomax’s] medical records to the NYPD, [NYPD] properly relied on records lawfully obtained from an independent source to conduct the [Internal Affairs] investigation.”

The Appellate Division, sustaining his termination as a probationary employee, ruled that the medical records used by NYPD showing that Lomax was driving while intoxicated provided “a rational basis for his dismissal as a probationary police officer and established that the termination was not made in bad faith.”

N.B. As to such disclosure by the Assistant Attorney General, HIPPA’s privacy rules require “that health plans, health care clearinghouses, and certain health care providers guard against misuse of individuals' identifiable health information and limit the sharing of such information” [see Public Law 104-191; Title II, Subtitle F; Part C--Administrative Simplification, §1171, Definitions, posted on the Internet at http://www.cms.gov/HIPAAGenInfo/Downloads/HIPAALaw.pdf ].

The Lomax decision is posted on the Internet at:


Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.

Access to New York Public Personnel Law is currently being provided pro bono.

NYPPL Lawblogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; as Director of Research, Governor’s Office of Employee Relations; as Director of Personnel for the State University of New York System; and as Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor members of the NYPPL staff are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional. NYPPL's Email Address = nyppl@nycap.rr.com