May 14, 2011

Governor Cuomo’s letter to the Chancellor of the Board of Regents regarding performance evaluations for teachers

Governor Cuomo’s letter to the Chancellor of the Board of Regents regarding performance evaluations for teachers
Source: Office of the Governor

On May 13, 2011 Governor Andrew M. Cuomo sent the following letter to the Chancellor of the Board of Regents Merryl Tisch regarding changes needed to improve and accelerate performance evaluations for teachers.

The Governor's full letter is as follows:

Dear Chancellor Tisch:

Performance is the key to education. It's not about how much we spend, but the results that matter. As data show our education spending hasn't resulted in performance. New York schools spend 71 percent more than the national average, yet rank only 40th in graduation rates and 34th in the nation in the percentage of adults who have a high school diploma or the equivalent.

We must focus on measures and accountability. That is why the State Education Department's ("SED") current process to develop a teacher and principal evaluation system is critically important. We not only need a strong evaluation system that will improve the performance of our children, but also to support our educators so they can continually develop and improve. Our goal should be to have the best system of evaluation in the nation, yet our proposed system falls short of other states, such as Colorado and Tennessee.

What SED establishes today will have a lasting effect for decades to come so it is imperative it's done correctly. The current Draft Regulations for Teacher and Principal Evaluation ("Draft Regulations") that were recently issued, however, need revision if we are to implement a system that will be the building blocks to greater performance in our education system.

Although there are a number of details in need of improvement, we recommend SED make the following comprehensive changes:
    · Increase the percentage of statewide objective data, like measuring student growth on statewide test scores, used to evaluate teacher performance; · Impose rigorous classroom observation and other subjective measures standards on school districts when evaluating teacher performance; · Require a positive teacher evaluation rating be given only when the teacher receives a combined positive rating on both subjective and objective measures, such as student growth on statewide tests; and, · Accelerate the implementation of the evaluation system.

These are discussed in more detail below and, if implemented, will greatly strengthen the evaluation process.
    · First, remove the explicit language prohibiting the same measure of student growth on state assessments from being used for locally-selected assessment measures and state measures simultaneously

The Draft Regulations explicitly bar a school district from using the same measure of student growth on the same assessment for both the state assessment subcomponent and the locally-selected measures subcomponent. We believe such a prohibition is unnecessarily restrictive because it precludes a school district from using the objective state-developed growth measure for the locally-selected measures.

The Draft Regulations should be amended to permit the same student growth measure be used for the state assessment and locally-selected measures. By removing this prohibition in the Draft Regulations, up to 40 percent of the total score could be based on objective student growth measures on state tests—a percentage that is closer to many other states.

This change would ensure that greater balance is struck between using objective teacher evaluation measures, such as statewide testing, and subjective teacher evaluation measures, such as classroom observation. Given that the subjective measures have far greater weight under the evaluation process system, it is imperative that the Draft Regulations adopted do not explicitly reduce the types of objective assessments, such as growth on state tests, available to be used.
    · Second, impose additional standards on school districts to improve the 60 percent of locally-developed rubric requirements, such as the observation process, to make evaluations more rigorous
The Draft Regulations must be strengthened and better defined to make the 60 percent subjective criteria to evaluate teachers more valuable. Already, New York is an outlier as compared to other states in that it requires more weight be given to subjective measures when rating teachers. Therefore, it is critical that the Draft Regulations include greater precision and impose clear standards.

For example, under the Draft Regulations, half of the 60 percent of the locally-developed rubric must be based on classroom observation. Studies have shown that a rigorous evaluation program based on classroom observation is a significant component in promoting student achievement growth. As such, the classroom observation requirement should be increased from half to at least 40 percent of the 60 percent total of the locally-developed rubric.

Moreover, the Draft Regulations should establish baseline standards to make classroom observation a more meaningful measure. At a minimum it is vital that the Draft Regulations require multiple annual observations and include criteria for using third party observers.
    · Third, require a positive teacher evaluation rating be given only when the teacher receives a combined positive rating on both subjective and objective measures, such as student growth on statewide tests
As was discussed above, under the Draft Regulations, objective measurements (e.g. state assessments) have lower weight than subjective measurements to evaluate teachers. In addition, there is no guarantee that objective measures have much meaning in the currently proposed scoring bands. In essence, a teacher could receive a positive rating, such as "developing", based only on subjective teacher evaluation measures.

Other states, such as Delaware and Rhode Island, require "effective" ratings in both the subjective and objective testing measures in order for a teacher or principal to receive an overall "effective" rating. No such requirement exists under the Draft Regulations and therefore diminishes the weight given to objective measurements in the evaluation process. Therefore, at a minimum, the scoring bands should be adjusted to give greater weight to the objective measures by not allowing a positive rating based on subjective measures alone. As an alternative, it is recommended that a teacher or principal be rated "effective" in both objective and subjective categories in order to receive an overall "effective" or "highly effective" rating.
    · Fourth, accelerate the timetable of implementing the evaluation system

I appreciate your assistance in accelerating the process so the evaluation system could be implemented for all teachers prior to the full implementation deadline of the 2012-13 school year. However, we must make sure that school districts begin the process in an expeditious manner. Endless implementation delays will hamper our ability to ensure our children are getting the best education, because a system not implemented is of no use.

Since SED has articulated the criteria for implementing the entire teacher and principal evaluation system, schools districts should fully implement the teacher and principal evaluation system for the 2011-12 school year and therefore the Draft Regulations should authorize school districts to do so.

Finally, my Administration will aggressively seek to incentivize schools districts to implement the evaluation system expeditiously. Therefore, only those districts that actually perform, and implement the teacher and principal evaluation system, would be eligible for the Executive's School Performance Incentive Program—a $500 million program—that I included in the Executive Budget. School districts would potentially lose millions of dollars on state awards for failure to implement the system quickly.

We must not squander the opportunity to set the right course and make New York a leader in evaluating performance in our education system. If done correctly we will revive our education system to ensure students perform better and succeed in their future careers. The recommendations above will help set the course. Now is our chance to make New York a leader in education performance.

Andrew M. Cuomo

The doctrine of primary jurisdiction and the doctrine of the exhaustion of administrative remedies considered in determining the jurisdiction of the court

The doctrine of primary jurisdiction and the doctrine of the exhaustion of administrative remedies considered in determining the jurisdiction of the court
Matter of Neumann v Wyandanch Union Free School Dist., 2011 NY Slip Op 03859, Appellate Division, Second Department 

Sally Neumann sued the Wyandanch Union Free School District for its alleged breach of her employment contract. Supreme Court’s dismissal of Neumann’s breach of contract action. Neumann also claimed that she had attained tenure by estoppel as “Director of Technology” with the school district

Neumann, was employed by Wyandanch as its "Director of Technology" in November 2004. She was later transferred to the position of "Assistant Superintendent for Curriculum and Technology." In September 2008 the District assigned her to the position of "Assistant Director for Curriculum and Technology."

The collective bargaining agreement between the District and the Wyandanch Administrators Association provided that "Director" positions were eligible for tenure and represented by the Association, but the "Assistant Superintendent" position was nontenured and excluded from Association membership.

In July 2008, Neumann had entered into an employment contract with the District for her third year of employment as Assistant Superintendent. The contract provided that the "terms and conditions of employment" not otherwise addressed in the contract were incorporated from the collective bargaining agreement. Under the collective bargaining agreement, claims relating to its terms were subject to a mandatory grievance process.

In September 2008, following her assignment to the "Assistant Director for Curriculum and Technology" position, the District reduced Neumann's salary to $135,706. In November 2008, the District abolished Neumann's position, and no longer paid her a salary after that date.

Neumann commenced a hybrid CPLR article 78 proceeding and plenary action seeking a judgment declaring that she had acquired tenure by estoppel as a Director based in part on her service in the Assistant Superintendent position. She also sought damages based on the District's alleged breach of contract when it reduced and finally ceased to pay her the salary provided for in the July 2008 employment agreement.

The Supreme Court, relying on the doctrine of primary jurisdiction, dismissed Neumann’s action claiming she had acquired tenure by estoppel and directed her to raise her tenure claim before the Commissioner of Education. The court also dismissed her claim alleging breach of contract.

Addressing "The doctrine of primary jurisdiction,” the court explained that the doctrine provides that where the courts and an administrative agency have concurrent jurisdiction over a dispute involving issues beyond the conventional experience of judges . . . the court will stay its hand until the agency has applied its expertise to the salient questions," citing Flacke v Onondaga Landfill Sys., 69 NY2d 355. Further, said the court, "The doctrine . . . applies where a claim is originally cognizable in the courts, and comes into play whenever enforcement of the claim requires the resolution of issues which, under a regulatory scheme, have been placed within the special competence of an administrative body. In such situations “the judicial process is suspended pending referral of such issues to the administrative body for its views.'"

In contrast, where the determination does not require the special competence of an administrative agency, the doctrine does not apply.

In this instance the Appellate Division ruled that the interpretation and enforcement of Neumann's employment agreement was not within the Commissioner of Education's specialized knowledge and experience. Rather its interpretation and enforcement depends on common-law contract rules that lie within the purview of the judiciary. Accordingly, said the court, Supreme Court’s dismissal of Neumann’s cause of action alleging breach of contract under color of the doctrine of primary jurisdiction was improper and the Supreme Court should have retained jurisdiction to decide that cause of action.

As to the School District’s argument that Neumann’s dismissal was nevertheless proper because she was required to exhaust her administrative remedies by submitting the matter to the grievance procedure mandated under the collective bargaining agreement, the Appellate Division said that “the clear terms of [Neumann’s employment agreement and relevant provisions of the collective bargaining agreement” indicate that Association’s grievance remedies were not available to Neumann with respect to her cause of action alleging breach of contract.
Consequently, Neumann was entitled to seek judicial review directly, and thus her cause of action breach of contract should not have been dismissed.

The decision is posted on the Internet at: 

Employee’s dismissal for “excessive absenteeism” failed to survive judicial scrutiny where such absences were authorized by the employer and properly documented

Employee’s dismissal for “excessive absenteeism” failed to survive judicial scrutiny where such absences were authorized by the employer and properly documented 
Matter of Iarocci v Incorporated Vil. of W. Haverstraw, 2011 NY Slip Op 50794(U), Supreme Court, Rockland County, Judge Alfred J. Weiner [Not selected for publication in the Official Reports.] 

Michael Iarocci was served with disciplinary charges pursuant to §75 Civil Service. He was found guilty a pattern of excessive absences over an 18-month period.* 

Iarocci contended that his absences were all for valid reasons and that his termination was contrary to law and was arbitrary and capricious. The Village, on the other hand, argued that Iarocci’s “excessive absences” made him unreliable and, therefore, incompetent to perform his duties. 

The §75 Hearing Officer found there was "...substantial evidence to support the charge of incompetence based upon [Iarocci’s] excessive absences but that [his] absences did not affect the morale of the department to the extent that it was ... asserted in conclusory fashion by the witnesses who testified."  The Hearing Officer recommended that Iarocci be suspended for a period of 90 days without pay and that upon his return placed on disciplinary probationary for an appropriate period of time.

West Haverstraw accepted the findings of the Hearing Officer but imposed the penalty of dismissal.
Iarocci appealed that Judge Weiner said that the issue before him was whether the penalty of termination was "so disproportionate as to shock one's sense of fairness?" 

Citing Matter of Featherstone v. Franco, 95 NY2d 550, Judge Weiner said that “Judicial review of an administrative penalty is limited to whether the measure or mode of penalty of discipline imposed constitutes an abuse of discretion as a matter of law.” Further, the court observed, in Pell v Board of Education, 34 NY2d 222, the Court of Appeals set out the standard for determining the appropriate penalty is whether the punishment imposed is " disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness." 

Judge Weiner then set out a number of decision in which courts have upheld the termination of a public employee found guilty of “excessive absence” including McKinnon v. Board of Educ. of North Bellmore Union Free School Dist. 273 AD2d 240, Alston v. Morgan 245 AD2d 287, and Romano v. Town Bd. of Town of Colonie, 200 AD2d 934.

Here, however, the record indicated that Iarocci had received authorization from his employer for his absences, followed the appropriate call-in procedures and obtained appropriate medical documentation when necessary. Further, the court found that he was never warned about his excessive absences or charged with insubordination or other misconduct. 

Other mitigating circumstances considered by Judge Weiner included Iarocci employment for ten years and no prior disciplinary problems; his frequent absences commenced only began after he had gallbladder surgery and later suffered an employment related back injury; and his promotion from Motor Equipment Operator I to Motor Equipment Operator II by West Haverstraw. 

Distinguishing Iarocci’s situation from the facts underlying the several cases in which termination has been imposed for excessive absenteeism, Judge Weiner noted that “When absenteeism has been authorized by an employer and properly documented according to procedure, termination for excessive absenteeism has not been imposed upon an employee unless it was coupled with more aggravating factors, including insubordination, [following] progressive discipline and other incidents of poor performance at work.”

Rulling that penalty of termination imposed upon Iarocci by West Haverstraw was  “disproportionate to the offense charged …” Judge Weiner said that the Town “should have given due weight to mitigating factors when deciding the appropriate penalty to impose.”

Annulling the penalty of dismissal, Judge Weiner remanded the matter to the Village Board “for the imposition of a penalty other than termination.”

The decision is posted on the Internet at:

A series of annual appointments as an educator may not result in tenure by estoppel

A series of annual appointments as an educator may not result in tenure by estoppel
Mohr v Salamanca City School District, 267 A.D.2d 983

Seniority is one of the critical elements in determining the retention of an employee in layoff situations. Such seniority, however, is a function of having tenure with the individual’s employer, as the Mohr case demonstrates. As Mohr demonstrates, tenure is attained as a result of being continued in service after completing a probationary period and not simply completing a series of annual appointments.

Brian Mohr was appointed as a teacher’s aide in Salamanca’s Bilingual Education Program in 1978. He was reappointed annually to that position until 1982 when he was appointed as a Title VII funded Bilingual Resource Teacher [BFT] for one year.

In determining seniority for the purposes of a layoff, the District found that Mohr, the least senior teacher, and he was terminated. Mohr sued, contending that because of his earlier service with the district, he was not the least senior teacher in his tenure area. Mohr argued that he had acquired tenure by estoppel as a teacher as a result of his service with the district from 1987 through and including 1992. He claimed that this entitled him to “bump” a teacher in the Seneca Language/Iroquois Culture tenure area with less seniority or, alternatively, to be placed on the preferred list for employment in “similar positions”.

The Appellate Division said “Supreme Court properly rejected those contentions.”

According to the decision, although an individual who completes his or her probationary period may attain tenure by estoppel, Mohr had not been appointed to a “tenure track” position until 1993. Each of Mohr’s pre-1993 employments by the district was dependent on the district’s receiving grant funds. As Mohr had been employed under a series of one-year contracts rather than for a “probationary term,” the court said that he could not, and did not, attain tenure by estoppel. This meant that Mohr could not “bump” a teacher with less service with the district.

In Yastion v Mills, 229 A.D.2d 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that “tenure does not apply to this position.”

Mohr was no more successful with his claim that he should be placed on a preferred list. The Appellate Division said that “it is well settled that a teacher is entitled to be placed on a preferred eligible list if he or she is certified in the same or a similar tenure area.”

Pointing out that Mohr was not certified to teach in the Elementary Education or a similar tenure area, the court said that while he held a permit that was the equivalent of certification to teach Seneca Language/Iroquois Culture, “the closest tenure area to Seneca Language/Iroquois Culture is the foreign languages tenure area, which, said the court, applies to seventh grade and above, not to the elementary grades.” Accordingly, the Appellate Division dismissed this branch of his appeal as well, holding that Mohr was not “entitled to placement on a preferred eligibility list.”

An appeal of an arbitration award must be perfected within the controlling statute of limitations

An appeal of an arbitration award must be perfected within the controlling statute of limitations
Rodriguez v NYC Transit Authority, 269 A.D.2d 600, Motion for appeal denied, 96 N.Y.2d 704

Hermino Rodriguez was dismissed from his position of cleaner with the New York City Transit Authority after being found guilty of disciplinary charges by a tripartite arbitration board.

Objecting to his termination, Rodriguez filed an Article 78 petition. A State Supreme Court judge vacated the arbitration award and directed the Authority to reinstate Rodriguez to his former position with back salary.

Find anything wrong with this? The Appellate Division did and overturned the lower court’s ruling.

In the words of the Appellate Division, “[c]ontrary to the Supreme Court’s determination, the only proper proceeding to seek review of the arbitrators’ decision in this case would be pursuant to CPLR [Civil Practice Law and Rules] Article 75...” not Article 78.

In addition, Section 7510 of the CPLR has a relatively short statute of limitation. The motion to vacate the arbitration award must be filed within 90 days of the receipt of the arbitrators’ decision.*

Rodriguez received a copy of the arbitration award affirming his termination on July 24, 1997. He filed his Article 78 petition, which was not heard until November 15, 1997. By that time it was too late for him to file an Article 75 petition.

While the Supreme Court justice treated Rodriguez’s Article 78 proceeding as an application pursuant to Article 75 of the CPLR, which he could do, the court did not have the power to extend the Statute of Limitations controlling the filing Article 75 actions.

The point here is that Rodriguez could have filed his motion to vacate the arbitration award within 90 days of his receiving the determination even if he had already filed an Article 78 action. The fact that he had started an Article 78 action, however, did not toll the running of the statute of limitations applicable in an Article 75 pro­ceeding.

* Education law Section 2030-a.5 provides an even shorter statute of limitations for challenging an adverse  disciplinary arbitration award – 10 days: Section 3020-a.5 Appeal. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

May 13, 2011

Termination of educator for posting sex ad on Craigslist while off-duty upheld by California court

Termination of educator for posting sex ad on Craigslist while off-duty upheld by California court
Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2011, Meyers Nave. All rights reserved

From time to time disciplinary charges will be filed against a public employee for alleged off-duty misconduct.

In a posting on its Law Blog Public Law News, Meyers Nave notes the decision in San Diego Unified School District v Commission on Professional Competence. It reports:

“In San Diego Unified School District v. Commission on Professional Competence (Lampedusa), --- Cal. Rptr. 3d ---, 2011 WL 1234686 (ordered published May 3, 2011), the California Court of Appeal upheld a school district's dismissal of a schoolteacher who was terminated for posting a sexually explicit ad and photos of himself on Craigslist while off duty. The ad neither identified the school nor that he was a teacher.  Nevertheless, the Court found the dismissal was justified based on the teacher's "evident unfitness" to serve as a teacher and that he had engaged in "immoral conduct" in posting the ad.

“In reversing the decision of the Superior Court (which upheld the Commission's finding of no cause for dismissal), the Court of Appeal affirmed the principal that "[t]here are certain professions which impose . . . responsibilities and limitations on freedom of action which do not exist in regard to other callings. Public officials such as judges, policemen and schoolteachers fall into such a category."

“The Court's decision relied in part on the United States Supreme Court's ruling in City of San Diego v. Roe, 543 U.S. 77 (2004). In Roe, the Court upheld the termination of a police officer discharged for selling homemade pornographic videos on an online auction site. Notably, the Court held that although the police officer's activities occurred outside of work and were purportedly unrelated to his employment, they were nonetheless "detrimental to the mission and functions of the employer." Accordingly, the City of San Diego was justified in disciplining the officer for his conduct. 

“The Court of Appeal in Lampedusa applied this same principal to find that "the disciplinary action taken by the District did not have an adverse impact or chilling effect on Lampedusa's constitutional rights." The decision thus supports the idea that, despite the substantial limitation on an agency's ability to discipline public employees for off-duty conduct, courts will uphold discipline for off-duty conduct when there is a sufficient nexus to the workplace, and are more likely to find that nexus with particular job classifications such as public safety.

“PRACTICE TIP: A public employer considering discipline for off-duty conduct should carefully scrutinize the conduct at issue and surrounding circumstances in evaluating whether there is a sufficient nexus to the workplace to justify the discipline. As noted in the Lampedusa and Roe decisions, a public employee's position and job responsibilities can factor into that analysis.”

Recent decisions reported by the New York City Office of Administrative Trials and Hearings

 Recent decisions reported by the New York City Office of Administrative Trials and Hearings 

A deputy sheriff who served as union treasurer was discovered to have transferred funds totaling $13,266, drawn from union accounts into his own bank account. When confronted, he refused to reimburse the union or provide receipts showing how the money was spent. Administrative Law Judge John Spooner found that respondent’s theft was inconsistent with his law enforcement responsibilities, and recommended termination from employment. Dep’t of Finance v. Smyth (in PDF), OATH Index No. 1285/11 (Mar. 9, 2011), adopted, Comm’r Dec.

An eligibility specialist who was arrested for participating in a scheme to defraud Medicaid, was charged with failing to report her arrest, accessing New York City Human Resources Administration’s Welfare Management System (“WMS”) without authorization, obtaining information on four Medicaid beneficiaries, and providing the information to an outside party for compensation. Administrative Law Judge Ingrid Addison found no proof that respondent knowingly participated in a conspiracy to defraud Medicaid, or that she received any form of compensation. However, petitioner proved that respondent made four attempts to login to WMS with a supervisor’s password in violation of HRA’s policies. Because she found no evidence that respondent was knowingly and willingly complicit in the scheme, the ALJ found termination to be disproportionate to the proven misconduct and recommended that respondent be demoted to a position where she no longer has access to WMS and the sensitive agency information on that system.  Human Resources Admin. v. Mays (in PDF), OATH Index No. 1299/11 

Administrative Law Judge Ingrid Addison recommended dismissal of multiple charges against a computer specialist that she was not competent to perform her job. Petitioner proved that respondent made six errors in a six-month period, but failed to prove that respondent’s errors were willful, or that there was such a proliferation of them so as to deem her incompetent. Petitioner established respondent was insubordinate when she yelled at her supervisor, did not respond to a voice message, and did not update operating procedures properly. The recommended penalty was a 25-day suspension. Transit Auth. v. Victor (in PDF), OATH Index No. 799/11 (Mar. 3, 2011), adopted, Comm’r Dec

New York City Human Resources Administration alleged that respondent was absent without authorization for three periods totaling 16 months. Respondent asserted that her absences were caused by various medical conditions, particularly depression. However, respondent did not provide sufficient proof of her medical conditions. She admitted that she was never treated for depression and that her absences were not authorized. Administrative Law Judge Joan Salzman found that, though respondent had some personal difficulties, termination of employment was the appropriate penalty for her lengthy AWOL, where she had failed to follow procedures for medical absences and to communicate with the Administration about her need for leave. Human Resources Admin. v. Gonzalez (in PDF), OATH Index No. 972/11

Compelling an employee to answer work-related questions

Compelling an employee to answer work-related questions
Compelling an employee to answer work-related questions has been considered by New York and Federal courts in a number of cases. Below are listed some of the holdings by courts concerning some basic “Fifth Amendment considerations” in the context of administrative disciplinary action:

1. Forcing an employee to answer work-connected questions or be terminated from his or her position generally precludes criminal prosecution based on those answers. Testimony obtained under threat of the loss of public employment provides the employee with limited immunity in criminal prosecutions based on the individual’s responses to such inquiries.* Essentially testimony provided under threat of loss of the individual’s public employment may not be used as a basis for, or in, subsequent criminal prosecution involving that individual. [Lefkowitz v Turley, 414 US 70]. The Court of Appeals addressed this issue in People v Corrigan, 80 NY2d 326. The Court of Appeals said that under both state and federal law any statement made under the threat of dismissal is protected by the privilege against self-incrimination and is “automatically immunized from use in criminal proceedings.” The court said that the immunity that attaches to any statement that a public worker gives under compulsion bars the use of the statement itself, as well as any evidence derived directly or indirectly from it, in any criminal prosecution.

2. The several decisions in Mountain v Schenectady [474 NY2d 612; 453 NY2d 93 and 428 NY2d 772] focus on the impact of an employee’s refusal to waive his or her immunity from prosecution and suffers the loss of his or her public office as a result of such refusal. The Mountain rulings focused on the relationships between a refusal to waive immunity from prosecution and the loss of public office.**

3. Where an employee is entitled to immunity with respect to the employee’s admissions or statements made in the course of a disciplinary investigation because it had been compelled under threat of termination, “that immunity would dissolve in the face of false allegations being filed.” [Seabrook v Johnston, 660 NY2d 311, United States v Apfelbaum, 445 U.S. 115]. In other words, transactional or use immunity does not permit the individual to lie.

4. The U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct. Although only federal employees were involved, the ruling may influence cases involving state and local employees. As to a "Fifth Amendment" defense in such cases, in Brogan v United States, 522 US 398, the Supreme Court upheld the conviction of a former union official who falsely answered a federal investigator's questions. The Court held that the Fifth Amendment privilege against self-incrimination does not bar prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries.

5. The Supreme Court, in an opinion by Chief Justice William H. Rehnquist, held that in the event employees remain silent in the course of a disciplinary action, citing the Fifth Amendment or some other reason, the appointing authority is free to consider such silence and draw adverse inferences in making its determination in a disciplinary action.

6. An appointing authority may experience a situation in which an attempt to discipline an employee appears frustrated because the employee claims that he or she has been granted immunity in connection with a criminal proceeding. According to the Appellate Division, administrative disciplinary action may proceed notwithstanding the claimed immunity (Greco v Board of Nursing Home Examiners, 91 AD2d 1108). In Greco, a Special Prosecutor granted Greco “transactional immunity from prosecution” in connection with a criminal matter in exchange for his cooperation. The Nursing Home Examiners subsequently revoked Greco’s nursing home administrator’s license. The Appellate Division, in a split decision, rejected Greco’s argument that his immunity barred revocation of his license. The court ruled, “a prosecutor cannot divest an independent body of its lawful discretion by promising broad immunity.” This is consistent with the view that an administrative disciplinary action based on the same events that may have resulted in a criminal prosecution is not “double jeopardy.” Had the board been a party to the granting of immunity, however, it would have been bound by the agreement.

7. Statements made by an employee to the police during an investigation of criminal charges filed against the employee constitutes “competent evidence” and may be admitted into evidence during the administrative disciplinary hearing (Dacey v County of Dutchess, 121 AD2d 536). In contrast, where the administrative disciplinary action precedes criminal action, in the event the appointing authority threatens to terminate or take other adverse action against an employee if he or she does not answer work-related questions, the employee’s answers to those questions are automatically shielded from use in a subsequent criminal prosecution under the doctrine of “transactional immunity” or “use immunity.”

8. Witnesses who may have participated in wrongdoing are not automatically granted transactional or use immunity by virtue of their testimony in an administrative procedure. Further, an administrative tribunal cannot bind the district attorney by a promise of immunity from criminal prosecution in exchange for the individual’s testimony as a witness at an administrative hearing. By the same token, the district attorney cannot bind an administrative tribunal with respect to its exercising its lawful authority. If immunity is a consideration, the witness must be granted such immunity by the appropriate authority in order for it to be effective and binding on that authority.

Responding to the following inquiry:

May a police officer be compelled to answer questions posed by a department's internal affairs division concerning on-duty and off-duty activities that directly involve their abilities to “carry out the public trust?” the Attorney General advised that:

In Matt v LaRocca, 71 NY2d 154, the Court of Appeals said that the State “may compel any person enjoying a public trust to account for his activities and may terminate his services if he refuses to answer relevant questions, or furnishes information indicating that he is no longer entitled to public confidence.”

In addition, the Attorney General noted that the United States Supreme Court in Garner v Broderick, 392 US 273, held that if an public officer or employee refuses to answer questions specifically, directly and narrowly related to the performance of his official duties and is not required to waive immunity with respect to the answers in a criminal prosecution, the constitutional privilege against self-incrimination would not bar termination for such refusal to answer.

On the issue of “off-duty” conduct, however, the Attorney General said that there is no explicit statement in case law to the effect that a public officer or employee may be compelled to answer questions concerning such activities. The opinion then indicated that “presumably some off-duty activities are relevant to an employee's performance of his public trust ... a factual determination that must be made on a case-by-case basis.”

The Attorney General concluded that an “internal affairs division [of a law enforcement agency] may compel officers to answer questions directly relating to their official duties, assuming that no waiver of immunity is required,” suggesting that “it would be wise to coordinate the department's investigation of such persons with the district attorney's office.” [Informal Opinion of the Attorney General 93-12].

* Such limited immunity is usually referred to as “transactional immunity” or as “use immunity.”

** Mountain, a police officer, refused to waive such immunity when called before a Grand Jury. He was dismissed following a Civil Service Section 75 disciplinary hearing for refusing to so waive immunity. The appointing authority relied on Article I Section 6 of the State Constitution which provides that a public officer if called to testify before a Grand Jury concerning the performance of official duties shall be removed from office if he or she refuses to sign a waiver of immunity. The Court concluded that demanding such a waiver violated Mountain's constitutional protection against self-incrimination. While a public officer may be removed for failing to answer questions relevant to the performance of official duties, he or she may not be dismissed for failing to waive immunity. It appears that had Mountain simply been asked relevant questions concerning his performance of his official duties, without any demand for a waiver of immunity, his dismissal for refusing to answer such questions would have been lawful.

Employee terminated for making false statements in his application for employment

Employee terminated for making false statements in his application for employment
Tezeno v City of Watertown Municipal Civil Service Commission, 37 AD3d 1122

The City of Watertown Municipal Civil Service Commission, after finding that Elijah Tezeno, a City of Watertown Firefighter, had “intentionally made false statements of material fact in his applications” for employment, removed him from his position with the City.

The Appellate Division sustained the Commission’s action, commenting that:

The false statement made in petitioner's firefighter application alone constitutes a violation of Civil Service Law §50(4)(f); and

The penalty of termination is not so disproportionate to the offense as to be shocking to one's sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:

May 11, 2011

Termination of a probationer

Termination of a probationer
Mennella v Uniondale UFSD, Comm. Ed. Decision 14245

The Uniondale Union Free School District appointed Vincenza Mennella as its Dean of Students effective September 1, 1998. The appointment was subject to a three-year probationary period.

In January 1999, Mennella was evaluated and rated unsatisfactory or “in need of improvement” in four categories. In March 1999, the superintendent advised Mennella that she would recommend that the board terminate Mennella’s employment. When asked for the reasons for this, the superintendent told Mennella that her recommendation was based on Mennella’s:

1. Working relationships with other administrators;

2. Failure to complete classroom evaluations of first year teachers in her department in a timely manner; and

3. “Resistance to District protocol.”

The board terminated Mennella effective June 30, 1999 and she appealed to the Commissioner contending that her dismissal was arbitrary and capricious. The district raised a number of procedural objections, the most significant one being that Mennella had filed two grievances concerning the matter with the district.

After addressing the “technical” procedural objections, the Commissioner considered the district’s “jurisdiction argument” -- i.e., the Commissioner lacked jurisdiction to consider the appeal because of the pending grievances filed by Mennella.

The Commissioner responded to the district’s challenge to his jurisdiction to consider the appeal by noting that “[i]t is well established that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not elect to bring an appeal to the Commissioner of Education for review of the same matter,” citing Commack Union Free School District v Ambach, 70 NY2d 501.

The Commissioner then decided that Mennella’s grievances had not raised the same issues she raised in her appeal. Accordingly, he concluded that he had jurisdiction to consider Mennella’s appeal.

This proved to be a Pyrrhic victory, however.

Considering the merits of Mennella’s appeal, the Commissioner first pointed out that a board of education has “an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period....” Such a termination will not be set aside “unless the employee establishes that a board terminated service for a constitutionally impermissible reason or in violation of a statutory proscription.”

Pointing out the Mennella had the burden of proof in this instance, the Commissioner ruled that she failed to show the board’s action was for a constitutionally impermissible reason or in violation of a statutory proscription and thus failed to meet her burden. The Commissioner dismissed her appeal.

The decision notes that the superintendent had given Mennella timely notice of her proposed recommendation and her reasons for doing so, together with an opportunity to respond to this action, thus complying with the mandates set out in Section 3031 of the Education Law. Significantly, the Commissioner indicated that he had noted “numerous memoranda in the record” sent to Mennella that “amply demonstrate [the district’s] concern over [Mennella’s] relationships with her colleagues.”

This illustrates the importance of documenting the appointing authority’s efforts to advise an employee of its expectations, and how the employee may meet these expectations, when an individual is not performing to its satisfaction. Although this case involved a probationary employee, having the same type of documentation in the record will often prove important in a disciplinary action involving a tenured individual.

Sometimes a district’s decision to terminate a probationer will trigger claims that the probationer’s rights under a collective bargaining agreement have been violated. Typically, such provisions in the negotiated agreement set out the procedures to be followed with respect to the evaluation of probationary employees and the steps to be taken in terminating the services of a probationer.

In Hempstead UFSD v Hempstead Classroom Teachers Association, of behalf of James Lacey, decided by the Appellate Division, Second Department, 267 AD2d 309, the court commented that a motion by the district to stay arbitration in a “second grievance” involving the same parties was rendered moot because a Supreme Court earlier had confirmed an arbitrator’s award in a prior grievance arbitration proceeding directing the reinstatement Lacey, a probationary teacher.

Determining if a §3014-b “takeover of an education program” occurred

Determining if a §3014-b “takeover of an education program” occurred
In the Matter of Elizabeth G. Quattrone v NYS Department of Education, 37 A.D.3d 939

Elizabeth G. Quattrone, a tenured teacher employed by Erie 2 Chautauqua-Cattaraugus Board of Cooperative Educational Services (BOCES), was assigned to teach gifted and talented students at various component school districts.

Quattrone was told that her position was being “excessed due to lack of interest in the gifted and talented program” after the Chautauqua Lake Central School District and Dunkirk City School District cancelled their BOCES contracts for gifted and talented services. Quattrone’s name was placed on a preferred eligible list for reinstatement to appropriate vacancies at both Chautauqua Lake and Dunkirk but she was never thereafter contacted by either for employment.

Alleging that, in fact, both school districts “took-over” the functions formerly performed by her and assigned the work to other teachers without offering her such available employment, Quattrone appealed “her non-selection for the position” to the Commissioner of Education.

Quattrone contended that she had a legal right to employment with the school districts pursuant to Education Law §3014-b upon their “taking-over” the former BOCES program.

Finding that there was no “take-over” that would trigger the provisions of §3014-b, the Commissioner dismissed Quattrone’s appeal.

The Appellate Division sustained the Commissioner’s determination, stating “Upon our examination of these factors, we conclude that petitioner failed to establish that a takeover occurred by either Chautauqua Lake or Dunkirk City.” Among the reasons given for its decision, the Appellate Division noted that:

1. Chautauqua Lake, while it did develop an enrichment program following its discontinuance of the BOCES gifted and talented program, “the two programs were simply not equivalent.” Unlike the BOCES program, the enrichment program paralleled general classroom instruction and featured field trips and classroom presentation components.

2. Dunkirk City, following its discontinuance of the BOCES gifted and talented program, it had no program whatsoever earmarked for gifted and talented education but rather embedded such education into their general curriculum and within the regular classroom setting.

3. Neither school district hired a new teacher to replace petitioner following discontinuance of their BOCES contracts.

The decision is posted on the Internet at:

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 for additional information about this electronic reference manual.

Zero tolerance drug policy

Zero tolerance drug policy
Dept. of Corrections v Robbins, OATH 2030/99

Many employers have initiated “zero tolerance” policies requiring the automatic dismissal of individuals found to have violated the policy. These “zero tolerance” policies address a number of situations that the employer views as disruptive or dangerous, the most common involving the use of drugs by employees, on or off the job.

The New York City Department of Corrections had established a “zero tolerance” drug policy providing for the termination of any employee, uniformed (i.e., correction officers), or civilian, who violated the policy. Its justification: the policy serves important functions by acting as a deterrent against drug traffic in its facilities and ensured that “the security of penal institutions is not breached.”

Was dismissal the appropriate penalty in a case involving a civilian employee -- a dietary aide -- found to have smoked one marijuana cigarette, off-duty, almost two years before being charged with violating the policy? The administrative law judge did not believe it was, concluding that there are instances, particularly where a civilian employee is involved, when the “automatic penalty” under the department’s zero tolerance drug policy should not be applied.

The employee, Anthony Robbins, admitted he was guilty of the charge of using marijuana while off-duty. Although the department wanted him terminated for violating its “zero tolerance” drug policy, the hearing officer recommended that a lesser penalty be imposed. The mitigating circumstances set out by the hearing officer justifying the deviation from the policy included the following:

1. Since the time of the incident, Robbins had been in counseling, had undergone drug testing, and laboratory reports indicated that he tested negative for drugs.

2. The employee has continued in counseling and still undergoes, as part of counseling, drug screening.

3. The risk of Robbins’ being involved in drug smuggling at the facility is so negligible as to be speculative and therefore cannot justify termination.

4. In previous cases involving violations of the “zero tolerance” policy by civilian workers, the individuals were not terminated and lesser penalties were imposed by the department.

5. The department did not subject civilian workers to random drug testing procedures although it required uniformed employees to submit to random drug tests.

6. In one instance the department “converted a penalty of termination into a lengthy suspension with random drug testing against a correction officer found to have tested positive for marijuana.”

The hearing officer concluded these “mitigating circumstances” justified a departure from the “zero tolerance” policy’s “automatic termination” provision.

May 10, 2011

Disciplinary hearings involving police officers are open to the public

Disciplinary hearings involving police officers are open to the public 
Matter of Doe v City of Schenectady, 2011 NY Slip Op 03694, Appellate Division, Third Department

The City of Schenectady appealed an order and judgment of the Supreme Court Judge Barry Kramer that among other things, ”permanently enjoined” Schenectady from permitting the public to attend disciplinary hearings involving City of Schenectady police officers.* 

In response to Schenectady’s Public Safety Commissioner Wayne E. Bennett advising the City Council of his plan to modify the City's police disciplinary process notwithstanding the disciplinary procedures set out in the collective bargaining agreement between the City and the Schenectady Police Benevolent Association (SPBA), SPBA filed an improper practice charge against the City with the Public Employment Relations Board (PERB).

The City filed its own improper practice charge against SPBA with PERB, asserting, that SPBA had impermissibly sought to negotiate disciplinary proceedings, which the City contended was a prohibited subject of collective bargaining.

Bennett issued a general order setting out the new disciplinary proceedings policy providing, among other things, that such proceedings would in the future be governed by Second Class Cities Law §137, pursuant to which Bennett would be the sole trier of fact and the formerly-confidential disciplinary hearings would be open to the public.

Subsequently SPBA filed an amended improper practice charge alleging that the parties' collective bargaining agreement governed disciplinary procedures and could not be unilaterally modified by respondents.

While the City's and SPBA's charges were pending before PERB, two police officers, James Roe and John Doe, were each served with a notice of discipline and advised that, pursuant to Second Class Cities Law §137, the City would be conducting public hearings with respect to those disciplinary charges. SPBA’s petition set out two causes of action:

1. Pursuant to Civil Rights Law §50-a and Public Officers Law Article 6-A, Roe and Doe were entitled to declaratory relief in that police disciplinary hearings must be confidential; and

2. The City’s "unilateral use of public hearings . . . in connection with [police] disciplinary proceedings [was] in excess of [the City’s] jurisdiction, illegal and contrary to law, in violation of lawful procedure and the [D]ue [P]rocess [C]lauses of the State and Federal Constitutions and [was] arbitrary, capricious and an abuse of discretion."

Ultimately Supreme Court ruled that Civil Rights Law §50-a superseded Second Class Cities Law §137 and that the legislative intent of §50-a would be thwarted by public disciplinary hearings.

The Appellate Division, in vacating Judge Kremer’s ruling, said that “individual police officers possess no private right of action for claimed violations of Civil Rights Law §50-a and for this reason alone the petition/complaint should have been dismissed to that extent.

Commenting that §50-a provided an exemption of document that might otherwise be disclosed pursuant to Freedom of Information Law (Article 6, Public Officers Law) but noting in that section “mentions the word disciplinary hearing, let alone requires that such hearings be held in private and we discern no import from this omission other than the obvious — that the failure of the Legislature to include it within the statute is an indication that its exclusion was intended.”

Citing Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, affd 67 NY2d 562, the Appellate Division said that the legislative history of §50-a indicates that the "statute was intended to apply to situations where a party to an underlying criminal or civil action is seeking documents in a police officer's personnel file, and was apparently designed to prevent 'fishing expeditions' to find material to use in cross-examination."

Concluding that SPBA failed to state a cause of action or legally cognizable claim, the Appellate Division said that “Supreme Court erred in denying [Schenectady’s] cross motion for dismissal of the petition/complaint.

The court, however, declined to divest PERB of its exclusive jurisdiction over the improper practice charges, including whether police disciplinary matters are a prohibited subject of negotiations.

On this last point, it could be argued that negotiating alternative disciplinary procedures to those provided by law is a permissive rather than a mandatory subject for collective bargaining.

Civil Service Law §76.4, provides: 4. Nothing contained in section seventy-five or seventy-six of this   chapter shall be construed to repeal or modify any general, special or   local law or charter provision relating to the removal or suspension of   officers or employees in the competitive class of the civil service of   the state or any civil division. Such sections may be supplemented, modified or replaced by agreements negotiated between the state** and an employee organization pursuant to article fourteen of this chapter. [Emphasis supplied] Where such sections are so supplemented, modified or replaced, any   employee against whom charges have been preferred prior to the effective   date of such supplementation, modification or replacement shall continue   to be subject to the provisions of such sections as in effect on the   date such charges were preferred.

Accordingly, the use of the word “may” suggests that either party negotiating a collective bargaining agreement could decline to negotiate an alternative to a statutory disciplinary procedure but may elect to do so, making any demand for an alternative to a statutory disciplinary procedure a permissive subject of collective bargaining within the meaning of the Taylor Law.

* In a disciplinary action taken against an employee pursuant to Section 75 of the Civil Service Law the court ruled that the hearing could not be closed to the public unless the accused employee agrees or requests that the proceedings be held privately [See 74 Misc.2d 315]. With respect to disciplinary procedures initiated pursuant to §3020-a of the Education Law, 8 NYCRR 82-1.9, “Demand for public hearing,” provides that [u]nless the employee notifies the hearing officer at least 24 hours before the first day of the hearing that he or she demands a public hearing, the hearing shall be private. The prehearing conference shall be private.” §3020-a, however, is silent with respect to “a public hearing.” Presumably 8 NYCRR 82-1.9 was adopted pursuant to the authority vested in the Commissioner of Education by §3020-a.3.c, which provides that “The commissioner of education shall have the power to establish necessary rules and procedures for the conduct of hearings under [such] section.”

** Although it could be argued that the use of the word “State” limits the negotiation of alternative disciplinary procedures to the State and employee organizations representing State workers, in practice alternatives to statutory disciplinary procedures have been negotiated by political subdivisions of the State and employee organizations representing employees of such political subdivisions for decades.

The decision is posted on the Internet at: 

The court’s fact-review power of an administrative agency's determination is limited to whether substantial evidence supports the determination

The court’s fact-review power of an administrative agency's determination is limited to whether substantial evidence supports the determination 
Matter of Jenkins v Israel, 2011 NY Slip Op 03604, Appellate Division, Second Department

The Westchester Medical Center filed disciplinary charges against Lisa Jenkins alleging insubordination and misconduct pursuant to §75 of the Civil Service Law. The disciplinary hearing officer found Jenkins guilty of the charges and Westchester adopted the hearing officer’s findings. It then imposed the penalty of dismissal and terminated her employment as a nursing aide.

In response to Jenkin’s appeal challenging her termination, the Appellate Division said that its fact-review powers of an administrative agency determination “are limited to whether substantial evidence supports the determination"
In this instance the court found that there was substantial evidence in the record to support a finding that Jenkins committed insubordination and misconduct.

Further, said the Appellate Division, “we cannot conclude that the penalty of dismissal imposed by the hospital was ‘so disproportionate to the offense as to be shocking to one's sense of fairness’ so as to constitute an abuse of discretion as a matter of law,” citing Matter of Kelly v Safir, 96 NY2d at 32.

The decision is posted on the Internet at: 

Employee organization's duty of fair representation

Employee organization's duty of fair representation
Ayazi v United Federation of Teachers, 32 PERB 3069

From time to time, a member of a negotiating unit will file an unfair labor practice claim with PERB contending that his or her union has breached its duty of fair representation. The Ayazi decision by PERB sets out the standards used by PERB in resolving such claims.

Maryam J. Ayazi, a former teacher of English as a Second Language employed by the New York City School District’s Grover Cleveland High School, filed charges with PERB alleging that her union, the United Federation of Teachers [UFT]:

1. Failed to properly represent her by declining to appeal an adverse “probation discontinuance appeal hearing” that sustained her termination for unsatisfactory service effective June 1997.

2. Refused to file a grievance for back pay based on the school district’s refused to hire her as a full time teacher following her termination as a probationer.

UFT responded to the charges indicating that:

1. It declined to challenge Ayazi’s termination for unsatisfactory performance during her probationary period because “her appeal raised no legal issues;” and

2. It did not file a grievance seeking back pay because “it did not believe that the grievance would be successful.”

Citing CSEA v PERB, 132 AD2d 430, PERB said that “[i]n order to establish a claim for breach of the duty of fair representation against a union, there must be a showing that the activity, or lack thereof, which formed the basis of the charge against the union was deliberately invidious, arbitrary or founded in bad faith.”

In contrast, PERB said that there is no violation of Section 209-a.2(c) if the union’s action, or inaction, was caused by “an honest mistake resulting from misunderstanding” or its lack of familiarity with matters of procedure.

PERB sustained its administrative law judge’s decision dismissing Ayazi’s complaint, commenting that the fact that Ayazi disagreed with UFT’s position and believed that her probationary termination should have been further appealed “is not sufficient to establish a violation of the Act.”

Another element in this action was Ayazi’s allegation that UFT said that it would no longer represent her because she had filed the unfair labor practice charge.

UFT conceded that it had told Ayazi that it would not communicate with her about matters that were the subject of this improper practice charge. Ayazi, on the other had, admitted that “UFT has continued to communicate with her about matters unrelated to those that are subject to this proceeding.”

PERB said that under the circumstances UFT’s action, without more, did not rise to a level of a violation of the Act.

May 09, 2011

An employee’s personnel record may be considered in determining an appropriate penalty, which record could include “counseling memoranda.”

An employee’s personnel record may be considered in determining an appropriate penalty, which record could include “counseling memoranda.”
Dundee Central School District v Douglas Coleman, Supreme Court Yates County, Index 2011-0011, Judge W. Patrick Falvey

In an earlier action involving the same parties in which Dundee challenged the hearing officers determination, Judge Falvey directed the Hearing Officer to reconsider certain disciplinary charges and specifications filed against Douglas Coleman, commenting that in the event the Hearing Officer "finds the aforementioned charges are substantiated, the same may impact the Hearing Officer's determination of the appropriate penalty."

The hearing officer sustained, in whole or part, a number of the charges and specification remanded to him for reconsideration but did not modify the penalty has originally imposed.

Dundee, while not challenging the hearing officer’s findings with respect to the charges and specifications he considered upon remand, appealed the hearing officer’s determination that no additional penalty should be imposed.*

The decision indicates that “after reviewing the … counseling memoranda, the Hearing Officer noted that there was no proof any of the warned offenses were repeated by Coleman.” The Hearing Officer concluded, “As such, I find and conclude that these Counseling Memoranda are a critical preface to the progressive disciplinary scheme inherent in the just cause protocol under [Education Law] §3020-a.

The school district contended that the Hearing Officers decision with respect to the penalty to be imposed was “excessively lenient, against public policy and was arbitrary and capricious. In addition, argued Dundee, the decision was irrational because the Hearing Officer did not impose any additional penalty against Coleman despite the fact that he had been found guilty of additional charges and specifications.

The Hearing Officer explained “It would be inherently unfair and totally contrary to the just cause protocol to issue further discipline to [Coleman] for actions that were never repeated and I will not do so.”

Dundee asked the court to remand the matter to a different hearing officer for a new determination as to the appropriate penalty to be imposed, contending that, in effect, the Hearing Officer’s ruling is that should a school district issue a counseling memorandum, and there is not repetition of the offending conduct, it cannot seek any additional penalty within the context of subsequent disciplinary action take against the employee. This interpretation, Dundee claimed, “violates and gives an irrational construction to existing law.

Judge Falvey said that Dundee’s argument was will taken and confirmed that his previous ruling that the underlying conduct described in the counseling memoranda can be the sole basis for formal disciplinary action pursuant to §3020-a of the Education Law.

The court concluded that the Hearing Officer’s decision with respect to the penalty to be imposed “lacks a rational basis due to his improper reliance on the premise that Dundee had to prove Coleman repeated the misconduct that gave rise to the counseling memoranda before he would consider Dundee’s request for a penalty” and remanded the matter to a new hearing officer for the purpose of determining the penalty to be imposed.

It should be noted that case law indicates that the individual’s personnel record may be considered in determining an appropriate penalty, which record could include “counseling memoranda.”

In Scott v Wetzler, 195 AD2d 905, the Appellate Division, Third Department rejected Scott’s argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing. The court said that “such evidence was relevant to the determination of an appropriate penalty,” noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file.

Similarly, in Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if:

1. The individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and

2. The employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

In a sense, Coleman’s theory with respect to using “counseling memoranda” in a formal disciplinary hearing is in the nature of double jeopardy. A claim of double jeopardy is sometimes 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. 

* The original penalty that was imposed provided for a suspension without pay for six months but directed Dundee to continue Coleman’s participation in the school district’s health insurance plan. In his earlier ruling, Judge Falvey struck the requirement that Dundee continue to provide Coleman with health insurance at the school district’s expense. 

** "Double jeopardy" is essentially a bar to retrying an individual for the same crime in a criminal court. The doctrine, however, does not bar filing administrative disciplinary charges against an individual against whom criminal charges have been filed involving the same event or events. Indeed, an individual who has been found guilty of criminal conduct cannot be found not guilty of the same offense[s] in a subsequent administrative disciplinary action [see Kelly v Levin, 440 NYS2d 424]. Nor is the filing of criminal charges a bar to proceeding with administrative disciplinary action while the criminal action is pending [see Levine v New York City Transit Authority, 70 AD2d 900, affirmed 49 NY2d 747; Chaplin v NYC Department of Eduction, 48 A.D.3d 226; and Haverstraw-Stony Point CSD, 24 Ed. Dept. Rep. 466].  

Termination of police officer for falsifying official reports affirmed

Termination of police officer for falsifying official reports affirmed

Sweeney v Safir, App. Div., 267 AD2d 99

New York City police officer Kevin Sweeney lost his job after being found guilty of giving false testimony and falsifying official reports.

Sweeney appealed only to have Appellate Division affirm the findings of the police commissioner as to guilt and the penalty imposed -- dismissal.

The commissioner found that Sweeny was guilty of “knowingly” making false statements in police reports and in his testimony before a Grand Jury.

Sweeny testified that “he was the victim of a gunpoint robbery of his fiancĂ©e’s car when, in fact, the car was simply stolen from the street when [Sweeney] left it double-parked with the keys in the ignition and the engine running.”

Employee dismissed because of habitual lateness

Employee dismissed because of habitual lateness
Dept. of Corrections v Gardner, OATH 1096/99

Disciplinary charges were filed against Darell Gardner, a New York City corrections officer, alleging various time and leave violations such as failing to call in to report illness as required and reporting to work late 17 times in a one-year period.

Administrative Law Judge [ALJ] Donna R. Merris found Gardner guilty of failing to call in sick one hour before his scheduled tour of duty, failure to report for duty following a grant of personal emergency leave, and of excessive lateness.

Judge Merris then reviewed Gardner’s personnel record. Noting that Gardner had been previously disciplined for infractions involving time and attendance, the ALJ recommended that he be terminated.

According to Judge Merris, “the charges here reflect a seemingly incorrigible pattern of thirty-four proven instances of lateness over a period of fifteen months.” As to the justification for her recommendation that Gardner be dismissed, Judge Merris said:

Thus, by his conduct, [Gardner] continues to demonstrate an inability to conform his behavior to the Department’s standards. In light of the continued history of excessive lateness demonstrated here, the only appropriate penalty is that [Gardner] be terminated from his position.

May 06, 2011

Applying the Doctrine of Absolute Privilege

Applying the Doctrine of Absolute Privilege*
Van Donsel v Schrader, 2011 NY Slip Op 03698, Appellate Division, Third Department

Richard Van Donsel, the then Cortland County Attorney, sued Scott Schrader, the then Cortland County Administrator, alleging causes of action for defamation and intentional infliction of emotional distress.

The genesis of this action was characterized by the Appellate Division as “part of an ill-fated plan to construct a County facility.” The County contracted to acquire real property owned by one Steven Lissberger. The County then reneged on the contract and Lissberger sought damages. Subsequently Lissberger sold the parcel to a third party, and was represented in that sale by Ronald Walsh. Walsh, at the time, was also serving as an Assistant County Attorney.

Van Donsel negotiated a settlement of the Lissberger claim. Schrader conducted a pre-audit of the proposed settlement and recommended its rejection in a memorandum to the relevant Cortland County legislative committee. In the words of the Appellate Division, “Noting Lissberger's sale of the property for only $500 less than the price set out in his contract with the County and Walsh's connections with [Van Donsel] — points that [Von Donsel] had neglected to disclose in requesting approval of the settlement — [Schrader] further recommended that [Van Donsel’s] office be investigated 'for a possible criminal conspiracy and unethical behavior.'"

The Appellate Division held that Schrader’s statements to the legislative committee were protected by an absolute privilege and thus Schrader's motion for summary judgment should have been granted by Supreme Court.

The Appellate Division explained that "A privileged communication is one which, but for the occasion on which it is uttered, would be defamatory and actionable," citing Park Knoll Assoc. v Schmidt, 59 NY2d 205. Further, said the court, “As a matter of public policy, an absolute privilege protects ‘communications made by individuals participating in a public function, such as executive, legislative, judicial or quasi-judicial proceedings,'” citing Rosenberg v MetLife, Inc., 8 NY3d 359.

The comments objected to, however, must have been made in the context of official communications by "a principal executive of State or local government [or] those entrusted by law with considerable administrative or executive policy-making responsibilities." In contrast, merely participating in such proceedings is insufficient to trigger the privilege.

There is little question, said the court, that Schrader, the County's chief administrative officer and executive, constituted a high official to whom the absolute privilege doctrine applies. Further, the Appellate Division noted that both Schrader's memorandum and the statements therein were prepared in furtherance of his official duties, which included reviewing claims submitted for payment by the County, supervising its department heads, and making appropriate recommendations to the County Legislature.

Van Donsel did not dispute that public disclosure of Schrader’s memorandum was "required by law" but, said the court, contrary to Van Donsel's argument, the fact that it received attention in the news media did not remove Schrader's comments from falling within the ambit of the privilege.

While the Appellate Division noted that a claim for intentional infliction of emotional distress “is not flatly barred by absolute privilege,” it said that Van Donsel “failed to raise a [question] of fact as to whether [Schrader's] conduct was so extreme, outrageous, and beyond the bounds of human decency as to constitute" that tort. 

* See, also, a summary addressing the Doctrine of Qualified Immunity posted on the Internet at:

The decision is reported on the Internet at: 

See, also, Leonard v Schrader, 2011 NY Slip Op 03699, decided with this action and posted on the Internet at 

In Leonard Supreme Court held “the defenses of absolute and qualified privilege in abeyance.” The Appellate Division ruled that “for the reasons stated in Van Donsel v Schrader (supra), we agree with Schrader that he is entitled to summary judgment dismissing the complaint.”


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.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and 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 NYPPL and, or, its staff and contributors 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.
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