Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of September 24 - 30, 2012 [Click on the caption to access the full report]

DiNapoli Proposes Early Warning System To Identify Local Governments In Fiscal Stress

With a growing number of local governments facing significant fiscal stress, State Comptroller Thomas P. DiNapoli announced plans Monday to implement an early warning monitoring system that would identify municipalities and school districts experiencing signs of budgetary strain so that corrective actions can be taken before a full financial crisis develops.

DiNapoli Invests $2.5 Million From State Pension Fund in Ithaca–Based Printing Company CognitiveTPG

New York State Comptroller Thomas P. DiNapoli announced Tuesday that DeltaPoint Capital Management has acquired a majority stake in Ithaca–based CognitiveTPG, a supplier of point–of–sale transaction and barcode printers. The Common Retirement Fund is an investor in DeltaPoint through the In–State Private Equity Program. Photos are available here.

Empire State Plaza Assigns New Director After Audit Reveals Elevator Safety Lapses

Elevators at the Empire State Plaza went unrepaired for months despite 32 maintenance deficiencies, according to an auditreleased Thursday by State Comptroller Thomas P. DiNapoli. The audit prompted the Office of General Services to assign a new director and deputy director of plaza operations to properly oversee elevator maintenance.

DiNapoli: August Cash Report Shows Continued Economic Uncertainty

Tax receipts through August 2012 were $147 million below projections and $204.3 million below collections for the same period last year, reflecting continued volatile economic conditions, according to the August Cash Report released last Wednesday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the following audits:

Town of Evans;

Town of Fort Edward; and,

Town of Schodack.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the audit of the Ark Community Charter School.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli last Tuesday announced his office completed the following audits:

Department of Transportation;

New York State Thruway Authority;

Department of Health; Office for the Aging; and,

Office of Parks, Recreation and Historic Preservation.

Trial court may not substitute its judgment for that of the arbitrator when the record supports the arbitrator’s ruling

Trial court may not substitute its judgment for that of the arbitrator when the record supports the arbitrator’s ruling

Supreme Court, New York County, vacated, in part, an arbitrator’s finding that a tenured teacher guilty of disciplinary charges alleging sexual misconduct and dismissed certain specifications, vacated the penalty imposed by the arbitrator -- termination of the teacher's employment, and remanding the proceeding for a new hearing before a new arbitrator to determine if the teacher was guilty of the surviving allegations and for a redetermination of the penalty to be imposed in the event the new arbitrator found the teacher guilty of one or more of the surviving disciplinary charges and specifications.

The Appellate Division(1) reinstated the initial arbitrator’s finding of sexual misconduct and (2) reinstated the penalty imposed by the arbitrator, termination.

The court said that judicial review of the arbitrator’s award in this instance is limited to the grounds set out in CPLR §7511(b)1* as required by §3020-a(5) of the Education Law.

The court explained that where, as here, “the arbitration is compulsory,” the excess of power standard under CPLR §7511(b) includes review of "whether the award is supported by evidence or other basis in reason, as may be appropriate, and appearing in the record." Thus, the "determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR Article 78."

The Appellate Division said there was adequate evidence to support the arbitrator's conclusion that teacher committed sexual misconduct by performing an "action that could reasonably be interpreted as soliciting a sexual relationship" within the meaning of the relevant provisions in the collective bargaining agreement. By finding to the contrary, the Appellate Division said that Supreme Court “impermissibly substituted its own judgment for that of the arbitrator” by crediting the teacher’s testimony that had been rejected by the arbitrator.

In light of the evidence, the Appellate Division said that the penalty of termination, notwithstanding teacher's “prior lack of disciplinary history,” did not shock its sense of fairness.

* §7511 of the Civil Practice Law and Rules provides for “Vacating or modifying” an arbitration award. With respect to “Grounds for Vacating,” §7511 (b)1 provides for the vacation of an arbitration award in the event the court finds that the rights of the party challenging the award were prejudiced by: 

     (i) corruption, fraud or misconduct in procuring the award; or 

     (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or 

     (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or 

     (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06255.htm

Not all doctor visits constitute “medical treatment” for the purposes of the FMLA

 Not all doctor visits constitute “medical treatment” for the purposes of the FMLA

Jones v. C & D Technologies, Inc., USCA, 7^th Circuit, Docket No. 11-3400. 

Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/

Copyright © 2012. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.

Jones had an approved FMLA-covered serious health condition requiring periodic treatment by his physician.  He asked for and was approved FMLA leave for an afternoon appointment to receive medical treatment by one of his physicians.  Although he was scheduled to work the morning, Jones did not show up to work.  Whether Jones timely called in his morning absence was in dispute.  Instead of working, Jones visited another of his physicians.  During the unscheduled morning visit, Jones ensured that his physician forwarded his medical records for his afternoon medical appointment.  As a result of a short conversation in the lobby, Jones also secured a prescription refill note from his doctor during his impromptu morning visit.  Jones was never examined or evaluated during the morning visit with his doctor.  Because he missed working his morning shift, Jones was terminated pursuant to the Company's attendance policy.

Jones sued alleging that his termination interfered with his FMLA rights.  Specifically, Jones argued that he received FMLA-covered "medical treatment" during his morning doctor visit, as evidenced by the prescription refill note.  The Company argued that Jones' morning visit was not "medical treatment" within the meaning of the FMLA. 

An employee is entitled to FMLA leave if she suffers from a "serious health condition" that renders the employee unable to perform the functions of the employee's position.  29 USC 2612(a)(1)(D).  Under the FMLA, an employee who must be absent from work to receive medical treatment for a serious health condition is considered "unable to perform the functions of the employee's position."  29 CFR 825.123(a)(emphasis added).  The parties do not dispute that Jones had an FMLA-covered serious health condition.  Instead, the case focused on whether Jones' impromptu morning visit with his physician constituted "necessary medical treatment."  

      

After initially noting that the statute does not define "treatment," the Court looked to the DOL regulatory definitions of "treatment" in sections 825.113(c) and 825.115 for guidance on the meaning of "treatment" in 825.123(a).  The Court concluded that 825.115 was not helpful in understanding the meaning of "treatment" in 825.123(a) because, while it refers to "continuing treatment," it fails to address the circumstances where a person actually receives medical treatment that prevents them from performing the functions of their position.  Similarly, while acknowledging the reference to a course of prescription medication as evidence of a "regimen of continuing treatment," the Court ultimately concluded that, while relevant to determining the existence of an FMLA-covered serious health condition, it was not helpful to determine whether an employee actually receives "treatment" that prevents him from performing his job.  According to the Court:

Many chronic conditions require a course of prescription medication, but the FMLA requires something more for an employee to become entitled to leave -- inability to perform her job functions.  A course of prescription medication and an inability to perform a job are not mutually exclusive.

Relying on its previous decision in Darst v. Interstate Brands Corp., 512 F.3d 903, 911-12 (7th Cir. 2008), the Court determined that treatment "includes examinations to determine if a serious health condition exists and evaluation of the condition," but not actions such as calling to make an appointment or scheduling substance-abuse rehabilitation."  Applying that standard, the Court concluded that Jones did not receive treatment preventing him from working that morning by visiting his doctor to ensure his referral to another lab was in order.  The Court also found that merely picking up a prescription refill note did not, under the circumstances, constitute FMLA-protected treatment.  The Court observed:

Although we can envision a scenario where obtaining a prescription note in connection with a physician's examination might constitute treatment, this case does not approach that hypothetical.  Here, Dr. Lubak never evaluated or examined Jones, and Jones even conceded in a deposition that he was never "physically examined" that morning.  Jones arrived at Dr. Lubak's clinic unannounced and appeared only to briefly speak with his physician in the office lobby. The entirety of Jones's interaction with Dr. Lubak consisted of the physician's acquiescence to refill a prescription.  There is simply no evidence that Jones was examined, and therefore treated, that morning.

Mr. Bosland Comments:  The decision of the Seventh Circuit is well reasoned.  To be covered by the FMLA, an absence to receive "medical treatment" under 825.123(a) requires, for the Seventh Circuit, the visit be "necessary" and a physical examination, which the Court equates with "treatment."  Jones' unscheduled, non-emergent morning doctor visit was not medically required.  Moreover, checking to ensure that medical paperwork was forwarded to a second doctor and securing a prescription refill after a brief lobby conversation with his physician, did not impress the Court as rising to the level of an "examination" and, therefore, treatment for purposes of the protections of the FMLA.  It will be interesting to see if other courts following the lead of the Seventh Circuit. 

The decision is posted on the Internet at:

http://www.ca7.uscourts.gov/tmp/LV0CM205.pdf

Suspension without pay during a pending disciplinary action

Suspension without pay during a pending disciplinary action
Elmore v Mills, 299 A.D.2d 545, Motion for leave to appeal denied, 9 N.Y.2d 509

Among the several issues considered by the Appellate Division, Third Department in Elmore case was the suspension of a tenured teacher without pay in the course of a disci­plinary action.

Plainview-Old Bethpage Central School District filed disciplinary charges against the educator pursuant to Section 3020-a of the Education Law. Section 3020-a.2(b) provides that in the event a teacher is suspended during pendency of the hearing, such suspension shall be with pay unless the teacher pleaded guilty to, or was convicted of, one of several enumerated crimes.

However, in this instance the Taylor Law contract between the district and the teacher union, in pertinent part, provided that “A teacher who has been suspended from school pursuant to Section 3020-a of the Educa­tion Law shall receive his/her regular full pay to which he/she would otherwise be enti­tled pursuant to … the Collective Bargaining Agreement [CBA] and all fringe benefits for a period of a maximum of fifteen (15) school months (11/2 years salary).... Thereafter, any suspension may be without pay.”

In December 1998, the District, relying on this provision in the CBA, suspended the teacher without pay, effective January 6, 1999, pending the outcome of the disciplinary hearing. The educator, however, had neither pleaded guilty to, nor was convicted of, any of the several crimes enumerated in Section 3020-a. Was the teacher's suspension without pay by the Dis­trict pursuant to the CBA lawful in view of the provisions of Education Law Section 3020-a.2(b)?

Although the Appellate Division declined to rule on this question, holding that because a final determination in the disciplinary action had been made and thus the issue was "moot," the court did elect to discuss a number of elements concerning the question of suspension without pay in a Section 3020-a proceeding. It said that:

A CBA may allow a school district to suspend its teachers without pay as long as the agreement's terms clearly manifest the parties' intent to do so, citing Board of Education of the City of Rochester v Nyquist, 48 NY2d 97.

The CBA relied upon by the District in this case clearly circumscribes a teacher's right to full pay during a protracted suspension.

The CBA provides for restoration of wages and benefits for any such period of leave without pay if the teacher ultimately is not terminated from employment but here the penalty imposed on Elmore was termination.

Thus, said the court, if the issue of the educator's suspension without pay was properly before it, it would find that this provision in the CBA was valid and that under the circumstances the District was authorized to suspend the teacher without pay as provided by the CBA.

 

Searching an employer’s computer for evidence of employee misconduct

Searching an employer’s computer for evidence of employee misconduct
People v David E. Wilkinson; People v Michael Casey, 2008 NY Slip Op 28192, Onondaga County Ct, Fahey, J. [Not selected for publications in the Official Reports.]

Two employees were each charged with the crimes of Defrauding the Government in violation of Section 195.20 of the Penal Law; and two counts of Official Misconductin violation of section 195.00(1) and 195.00(2) of the Penal Law.

Both individuals asked the court to suppress evidence obtained by District Attorney’s “White Collar Crime Unit” as the result of a search of their computers, contending that they did not consent to the search and that the search warrant issued by the County Court was issued without sufficient probable cause. They also argued that the fruits of the search of their computers must be suppressed because they had an expectation of privacy in their computers; that the investigators from the District Attorneys Office did not have the consent of either of them to search the computers; and that the search warrant obtained after the viewing of the document on the Casey computer was the "fruit of the poisonous tree."

Addressing the issue of “consent,” the Court said that both employees “have demonstrated a legitimate and reasonable expectation of privacy in the computers searched.” Finding that the searches were conducted without such consent and that the seizures of the computers resulted solely from the warrantless search of the computer prior to the issuance of a search warrant, the motions made by both Wilkinson and Casey to suppress the resulting evidence was granted by Justice Fahey.

N.B. It should be remembered that this was a criminal proceeding and the rules of evidence are stringent and controlling in such litigation. Such is not the case in administrative disciplinary actions where the hearing officer or arbitrator is not bound by the formal rules of evidence.

Recent examples of the approval of the use of computer, or computer related, evidence to find an employee guilty of administrative disciplinary charges include:

Leo Gustafson v Town of N. Castle, 45 A.D.3d 766, Appellate Division, Second Department - The employee, an assistant building inspector with the Town of North Castle, was charged and found guilty of falsifying official records with respect to where he was while on duty. The individual was assigned a town vehicle for the purpose of making field inspections in connection with his employment. The vehicle had a global positioning system installed that transmitted information to the town’s computer reporting the vehicle’s location and movements. Based on this information, the Town charged the employee with falsifying town records as to his whereabouts. This, said the Appellate Division, constituted substantial evidence to support the determination that the employee was guilty of falsifying town records.

Ghita v Department of Education of the City of New York, 2008 NY Slip Op 30706(U), Supreme Court, New York County, Docket Number: 0110481/2007 [Not selected for publications in the Official Reports] – the employee challenged an arbitrator’s determination terminating his employment with the New York City Department of Education after finding him guilty of downloading a file of pornographic material from his AOL email account and openly viewed such pornographic material from a school computer. Supreme Court rejected the individual’s claim that the arbitrator exceeded his authority under Education Law §3020-a, and the award terminating petitioner's employment is a violation of public policy and New York State Law.

Perry v Comm. of Labor, App. Div. 3rd Dept., 283 A.D.2d 754 – This unemployment insurance claimant challenged a determination by the Unemployment Insurance Appeals Board denying him benefits after finding that his employment was terminated due to his misconduct. The nature of the individual's alleged misconduct: his misuse of his employer's computer equipment. The employee, a human resource specialist, was terminated after his employer discovered that he used his computer terminal to frequently access pornographic websites during working hours.

In addition,a number of courts have considered the question of an employee's right to privacy in using his or her employer's computer equipment. In Fraser v Nationwide Mutual Insurance Co., USDC, 135 F. Supp. 2d 623, the court held that an employee using his or her employer's computer equipment for personal business does not enjoy any "right to privacy" barring the employer’s reviewing the employee's e-mail that is stored in its computer system. Federal District Court Judge Anita B. Brody decided that an employer may peruse an employee's e-mail files that are stored in the system without violating either federal or Pennsylvania wiretap laws.

As to the issue of the expectation of privacy, the appointing authority may wish to periodically advise its officers and employees that they have no right to privacy with respect to any data retrieved from the employer's computers, servers, video tapes, message tapes or other storage devices, electronic or otherwise.

The full text of the Wilkinson - Casey decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2008/06/searching-employers-computer-for.html

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of September 10 - 16, 2012  [Click on the caption to access the full report]

DiNapoli: Tax Cap Reporting Made Easier

State Comptroller Thomas P. DiNapoli announced that the 2012–13 tax cap reporting form has been enhanced to make it easier for local officials to accurately calculate their tax levy limit.

After analyzing reporting errors from the first year of implementation, DiNapoli’s Division of Local Government and School Accountability developed an improved online property tax cap reporting system to address the most problematic areas encountered by local officials.

DiNapoli: Town Deficit Caused By Inaccurate Budgeting

Due to unreasonable budget estimates, the Town of Poughkeepsie was left with a $1.5 million deficit in its major fund balances at the end of 2010, according to an auditreleased by State Comptroller Thomas P. DiNapoli. The town has also failed to repay more than $3 million in inter–fund loans it made between different tax bases.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the following audits:

Eastchester Fire District;

Owasco Fire Department;

Mohawk Fire District;

Town of Colonie;

Town of Hinsdale;

Town of Peru;

Town of Red House;

Town of Waterford; and,

Village of Ballston Spa.

Comptroller DiNapoli Releases School Audits

New York State Comptroller Thomas P. DiNapoli announced his office completed the audits of:

Achievement Academy Charter School;

Green Island Union Free School District; and,

Madison–Oneida BOCES.

Not providing an employee claiming a disability an accommodation that would obviate performing an essential job requirement did not violate the ADA

Not providing an employee claiming a disability an accommodation that would obviate performing an essential job requirement did not violate the ADA

NYC Fire Department v A.G., OATH Index No. 771/12

The New York City Fire Department sought the termination of an employee, A.G., alleging the individual “had been excessively late or absent from work” in that A.G. had been tardy, or absent from work for more than 700 hours in 2010 and in excess of 700 hours in 2011.

The employee’s defense: The Department was in violation of the Americans with Disability Act because it had not provided her with a reasonable accommodation -- a three-hour flex-time schedule -- of  the various disabling medical conditions she claimed were the cause of her poor attendance record.

Although A.G. contended that she could not be disciplined for her attendance problems, OATH Administrative Law Judge Kara J. Miller held that A.G. failed to prove that her alleged medical conditions caused her attendance problems.

Judge Miller, finding that timely attendance was an essential function of A.G.’s job, ruled that the Department was not required to provide an accommodation that would eliminate its attendance requirements as “a reasonable accommodation can never involve the elimination of an essential function of a job,” citing Shannon v. NYC Transit Authority., 332 F.3d 95.

Sustaining the charges, the ALJ recommended that A.G. be terminated from her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-0771.pdf

Motion to delay disciplinary action pending the outcome of a criminal investigation denied

Motion to delay disciplinary action pending the outcome of a criminal investigation denied

NYC Department of Homeless Services v Simmons, OATH Index #2042/12

OATH Administrative Law Judge Ingrid A. Addison denied a pre-trial motion made by a public employee to stay her disciplinary proceeding pending the outcome of a criminal investigation.

Judge Addison ruled that there was no constitutional bar to moving forward with the disciplinary action, where, as here, criminal charges had not yet been brought.

The employee, in effect, was asking for an indeterminate stay. Such stays are disfavored, said Judge Addison, because the employer has an interest in the prompt resolution of misconduct allegations and having the employee against whom disciplinary charges, or someone else, fulfill the job responsibilities. 

Below are selected excerpts from The Discipline Book* [an e-book published by the Public Employment Law Press, 2012, 1476 pages] concerning the relationship of administrative disciplinary actions and criminal proceedings based on the same alleged acts or omissions. They are reprinted here with permission: 

Pending criminal matters:

1. " ... Chaplin v NYC Department of Education, 48 A.D.3d 226, is another example. Here the Appellate Division said that an employee was not entitled to a stay of the disciplinary case as a criminal defendant does not have a right to stay a related disciplinary proceeding pending the outcome of trial, citing Watson v City of Jamestown, 27 AD3d 1183. Denial of such a stay does not adversely affect the employee’s constitutional rights.

2. " The appointing authority has no obligation to postpone disciplinary action even if the county District Attorney requests administrative action be postponed. This was the point made by the court in Levine v New York City Transit Authority, 70 AD2d 900 (2nd Dept 1979), affirmed 49 NY2d 747 (1980). [See also 2.14: “Impact of criminal action on disciplinary action”.]

3. "A [Taylor Law] contract may … prohibit disciplinary action in the face of pending criminal charges. Although not so stated in law, the courts have ruled that Section 75 proceedings need not be postponed because a criminal action is already pending or may soon be commenced.

4. "May administrative disciplinary action be prosecuted at the same time that a criminal action based on the same facts and allegations is pending? Yes. See, for example, the decisions of the court in Nosik v Singe, 40 F.3d 592, (unnecessary to delay administrative disciplinary action in a case of a school psychologist accused of defrauding insurance companies) and Matter of the Haverstraw-Stony Point CSD, 24 Ed. Dept. Rep. 466, (no requirement to adjourn a Section 3020-a hearing when parallel criminal proceedings are underway)."

* For information about The Discipline Book , click on  http://booklocker.com/books/5215.html 

The NYC Department of Homeless Services v Simmons decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-2042md.pdf

Entering a plea of Nolo Contendere in an administrative disciplinary action

Entering a plea of Nolo Contendere in an administrative disciplinary action

Appeal of T.B., Decisions of the Commissioner of Education, Decision #16,385

One of the issues in the Appeal of T.B. concerned the student’s attorney entering a plea of “no contest” or nolo contendere* in response to certain allegations of misconduct filed against the student by the school district.

Although New York State does not provided for the accused in a criminal proceeding to advance a nolo contendere plea [People v. Daiboch, 265 NY 125], as the court noted in Kasckarow v Board of Examiners, [33 Misc 3d 1028; appeal pending, Second Department, 2011-11569], “the fact that a defendant in a criminal action does not technically admit guilt in a nolo contendere plea has not prevented New York from recognizing that a nolo contendere plea from another jurisdiction constitutes a conviction for the purposed of sentencing a defendant as a second felony offender.”

Further, New York recognizes so-called “Alford pleas” (North Carolina v. Alford, 400 U.S. 25), which are similar to nolo contenderepleas in that the Court of Appeals has recognized that, from the New York State's perspective, an Alford plea is no different from any other guilty plea, and may be used for the same purposes as any other conviction.**

New York courts have occasionally addressed a plea nolo contendere or “no contest” in administrative actions. For example, in Dower v. Poston, 76 Misc.2d 72, such a plea was a factor in resolving the disqualification of an individual for appointment to a position in the competitive class.

Dower had entered a plea of nolo contendere to one count of the indictment found against him in which he was charged conspiracy to defraud the United States. Sentenced to imprisonment, his sentence to imprisonment was suspended and he was placed on probation for a period of three years.

When Dower challenged his disqualification for appointment to the position pursuant to §50.4(d) of the Civil Service Law based on his having been “convicted of a crime,” Supreme Court ruled that “It is clear … that [Dower] in his application incorrectly and improperly stated that he had never been convicted of an offense despite the announcement for the position indicated that “conviction of a felony will bar, and conviction of a misdemeanor may bar examination and appointment”. Accordingly, said the court, his disqualification for appointment to the position by the Civil Service Commission was a proper exercise of discretion under the statute.

The Commissioner of Education has considered the impact of pleas of “no contest” in a number of student disciplinary actions.

With respect to the appeal of T.B., T.B.’s then-counsel told the hearing officer that the school district had agreed to drop three of the 4 charges filed against the student and would only pursue one of the charges, “Charge 3.” T.B.’s counsel then submitted a plea of “no contest” on the student’s behalf.

The hearing officer said that as the student was “pleading no contest, as Hearing Officer, then I just will find him guilty of just the one charge.”  T.B.’s counsel disagreed with the guilty determination, stating that the student was neither “admitting or denying [the charge]”, just “not contesting the charge.”  No witnesses or additional documents were introduced or entered into the record by either party and, after learning that the student had no prior disciplinary history, the hearing officer “referred the matter to the superintendent for a determination of any additional penalties.”

Among the issues raised by T.B. in this appeal to the Commissioner of Education was the claim that Charge 3 was “too vague and insufficient to apprise [the student] of the activities giving rise to the hearing” and that the school district “produced no evidence of [the student’s] guilt and that the ‘no contest’ plea is not an admission and is insufficient proof of guilt.”

With respect to these issues, the Commissioner ruled:

1. The charges in a student disciplinary proceeding need only be “sufficiently specific to advise the student and his counsel of the activities or incidents which have given rise to the proceeding and which will form the basis for the hearing;”

2. Where a student admits the charged conduct, the admission is sufficient proof of guilt; and

3. The record reveals that, although represented by counsel, T.B. failed to raise the issue of “vagueness” before the hearing officer at the hearing and, in fact, agreed to enter a plea with no such objection.  

Accordingly, the Commissioner held that as T.B. “failed at the hearing to dispute the specificity of the remaining charge and also failed to enter [the student’s] written statements into the record, [as] neither the issue of vagueness nor those documents were properly part of the record before the board … they may not now be considered as part of this appeal.

As to T.B.’s argument that the “no contest” plea submitted on the student’s behalf was neither sufficient proof nor an admission of the student’s guilt, and claimed that the hearing officer erred in finding the student guilty, the Commissioner disagreed, noting that although “New York State Criminal Procedure Law does not provide for a ‘no contest’ plea.” …  [n]evertheless, the courts have recognized that an individual’s ‘no contest’ plea amounts to ‘an admission of the facts as charged,” citing Kufs v State of New York Liquor Authority, 637 NYS2d 846 at 847.

In Kufs, said the Commissioner, the court ruled that “[b]y entering [his] ‘no contest’ plea, petitioner waived [his] right to a review of the facts upon which the punishment was imposed.”

Finding that there was nothing in the record, nor did T.B. argue that the student’s “no contest” plea was not entered in a voluntary, knowing and intelligent manner, the Commissioner said that there was no reason to annul the hearing officer’s determination.

Other decisions in which the Commissioner considered a plea of “no contest” include:

Decision No. 16,101 [http://www.counsel.nysed.gov/Decisions/volume50/d16101.htm];

Decision No. 15,841 [http://www.counsel.nysed.gov/Decisions/volume48/d15841.htm]; Decision No. 15,122 [http://www.counsel.nysed.gov/Decisions/volume44/d15122.htm]; Decision No. 14,529 [http://www.counsel.nysed.gov/Decisions/volume40/d14529.htm]; Decision No. 14,305 [http://www.counsel.nysed.gov/Decisions/volume39/d14305.htm]; and Decision No. 14,217 [http://www.counsel.nysed.gov/Decisions/volume39/d14217.htm]

* Nolo Contendere, is Latin for "I will not contest it." It appears that the only New York statute in which the term is referenced is found in the New York Public Health Law.  §4655.2.h.(iv)(A) of the Public Health Law provides, in pertinent part, “...  has been convicted of a crime or pleaded nolo contendre[sic] to a felony charge, or been held liable or enjoined in a civil action by final judgment if the criminal or civil action involved fraud, embezzlement, fraudulent conversion, or misappropriation of property [emphasis supplied].”

** Matter of Silmon, 95 N.Y.2d at 475,

The decision in the Appeal of T.B. is posted on the Internet at http://www.counsel.nysed.gov/Decisions/volume52/d16385.html

N.B. A LawBlog focusing on Nolo Contendere is posted on the Internet at:

http://www.nolocontendere.org/historyofnolo.html

School district did not violate alleged whistleblower’s First Amendment free speech rights

School district did not violate alleged whistleblower’s First Amendment free speech rights

Ross v The Katonah-Lewisboro Union Free School District, USCA, 2^nd Circuit, Docket No. 10-5275-cv

The U.S. Circuit Court of Appeals, Second Circuit, ruled that a former school district employee’s First Amendment right to free speech was not violated because her speech was uttered in the context of her official duties in contrast to speech uttered in her personal capacity.

In the words of the court: “because Ross was speaking pursuant to her official duties and not as a private citizen, her speech was not protected by the First Amendment.”

The Circuit Court explained: “In the First Amendment context, ‘the State has interests as an employer in regulating the speech of its employees that differ significantly from those it possesses in connection with regulation of the speech of the citizenry in general,’" citing Pickering v. Bd. of Educ. of Twp. High Sch. Dist. 205, 391 U.S. 563. Speech by a public employee, said the court, is protected by the First Amendment only when the employee is speaking “as a citizen . . . on a matter of public concern.”

In Garcetti v. Ceballos, 547 U.S. 410, the Supreme Court held that “when public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline.”

The individual had contended that she had been wrongfully terminated because she had exercised her First Amendment right to free speech in reporting alleged financial misfeasance to the school superintendent and the school board.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/d60e79aa-6471-44b9-b831-70c72e11909d/1/doc/10-5275_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/d60e79aa-6471-44b9-b831-70c72e11909d/1/hilite/

Employee suspended without pay after refusing to comply with superiors order

Employee suspended without pay after refusing to comply with superiors order

Office of the Comptroller of the City of New York v Martin, OATH Index #1680/12

A employee of the New York Office of the Comptroller was alleged to have refused to  remove her Bluetooth earpiece when ordered to do so and to have responded disrespectfully to her supervisor.

OATH Administrative Law Judge Alessandra F. Zorgniotti sustained the charges and after considering that the employee had already been disciplined twice for refusing to remove her Bluetooth earpiece, recommended a 15 work-day suspension without pay. 

The ALJ’ recommendation was adopted by the Office of the NYC Comptroller.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1680.pdf

A village that has a police department must have a chief of police

A village that has a police department must have a chief of police

Citing Village Law §§8-800, 8-800(1); Chapters 810 and 840 of the Laws of 1985; Town Law §150; and Civil Service Law §§58, 58(1-c), the Attorney General advised the Village Attorney, Village of Skaneateles, that “A village that has a police department must have a chief of police, unless the grandfather clause applies.” [Informal Opinions of the Attorney General 2012-08. This Informal Opinion is posted on the Internet at http://www.ag.ny.gov/sites/default/files/opinion/2012-8%20pw.pdf]