Wednesday, September 30, 2015

Failing to follow the established procedures for conducting annual employee performance rating undermines the integrity and fairness of the process


Failing to follow the established procedures for conducting annual employee  performance rating undermines the integrity and fairness of the process
Murray v Board of Educ. of the City School Dist. of the City of N.Y., 2015 NY Slip Op 06866, Appellate Division, First Department

Juanita Murray, a school social worker employed by the New York City Department of Education [DOE] petitioned Supreme Court to annul the unsatisfactory performance rating and the denial of her appeal of that rating for the 2010-2011 school year. Supreme Court granted DOE’s motion to dismiss
Murraypetition and Murrayappealed.

The Appellate Division unanimously reversed the lower court’s decision, on the law, granted Murray’s petition to the extent of annulling the U-rating.

Murray’s principal, Robert Mercedes, had rated her unsatisfactory in seven categories in her 2010-2011 Annual Professional Performance Review:  attendance and punctuality; professional attitude and professional growth; resourcefulness and initiative, where he wrote that she lacked initiative and growth; analysis and interpretation of assessment data; translates assessment findings into educationally relevant goals and objective; appropriateness and flexibility of counseling approaches; and submitting assessment reports.

Noting the Murray, as was her right under the parties' collective bargaining agreement, appealed her U-rating to the Chancellor of the DOE the court said that although both Murray and Mercedes testified at the hearing, no transcript was included in the record. The court said the DOE respondents “rely on the report of the hearing issued by the Chancellor's Committee, which described the parties' arguments, made findings of fact, and recommended that the U-rating be sustained.”

Having exhausted her administrative remedies, Murrayfiled a timely CPLR Article 78 petition challenging the U-rating given her in its entirety, contending that DOE had not adhered to its own procedures nor to the relevant procedures set out in the relevant collective bargaining agreement. On this point the Appellate Division, citing DOE Special Circular No. 45, observed that “as a pedagogical employee, [Murray] was to be given at least one full period of review during the school year by her principal, followed by a meeting with the principal to discuss her strengths and any areas in need of improvement. Additionally, as a social worker employed at a school, she should have been evaluated by the school principal in consultation with the in-discipline supervisor, in accordance with the collective bargaining agreement.”

Also of “great concern” the Appellate Division was the fact that an in-discipline supervisor did not critique Murray's work as required by the collective bargaining agreement and in the absence of a transcript of the Chancellor's Committee hearing, it only had the statements Murray’s made in her underlying papers and again on appeal, that Principal Mercedes admitted to not having the experience or qualifications to evaluate her without input from the in-discipline supervisor prior to asking Murray for certain documents. Further, the court said that there was no evidence that Murraywas notified before the end of the school year in June 2011 that her work was considered unsatisfactory.

The court said that “The record is clear that [Murray] was deprived of her substantial rights in the review process culminating in her U-rating when measured against the methodology followed in other such case, citing Cohn v Board of Education, 102 AD3d 586. The Appellate Division found that “the instant record does not show that [Murray] was provided with support, or formal constructive criticism, of any kind.” Indeed, the court said that the DOE respondents “have not demonstrated by competent proof that they gave [Murray], who was tenured, any feedback of any kind.”

In the words of the Appellate Division, “… the complete absence of constructive criticism and warnings during the entire school year, compounded by the lack of a formal observation and accompanying feedback during the school year, ‘undermined the integrity and fairness of the process’." 

Accordingly, the Appellate Division reversed the ruling of the Supreme Court and granted Murray’s petition to the extent of annulling the U-rating.

The decision is posted on the Internet at:

Tuesday, September 29, 2015

A political subdivision of the State may provide for the defense and indemnification of its officers and employees sued in state or federal court involving the performance of official duties


A political subdivision of the State may provide for the defense and indemnification of its officers and employees sued in state or federal court involving the performance of official duties
Bonilla v Town of Hempstead, 2015 NY Slip Op 06916, Appellate Division, Second Department

Former Hempstead Town Clerk Mark A. Bonilla initiated an Article 78 action seeking a court order compelling the  Town of Hempstead to provide him with a defense and indemnification in an action entitled Smith v Town of Hempstead, CV-134985, pending in the United States District Court for the Eastern District of New York as mandated by the Town Code.

The relevant section of the Town Code, §11-2(A), provides as follows:

The town shall provide for the defense of an employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the employee was acting within the scope of his public employment or duties or which is brought to enforce a provision of Section 1981 or 1983 of Title 42 of the United States Code; provided, however, that the duty of the town to defend or save harmless shall be conditioned upon: 

1. Delivery to the Town Attorney at his offices by the employee of the original or a copy of any summons, complaint, process, notice, demand or pleading within five days after he is served with such document. Such delivery shall be deemed a request by the employee that the town provide for his defense pursuant to this chapter 

2. The full cooperation of the employee in the defense of such action or proceeding and in the defense of any action or proceeding against the town based upon the same act or omission and in the prosecution of any appeal.

Supreme Court granted Bonella’s petition and the Town appealed.

The Appellate Division affirmed the Supreme Court’s ruling, noting that §11-2(A) of the Code of the Town of Hempstead provides, in relevant part, that the Town "shall provide for the defense of an employee [or former employee] in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is [alleged] to have occurred while the employee was acting within the scope of his [or her] public employment or duties or which is brought to enforce a provision of [42 USC §1981 or 42 USC §1983]."* 

As the underlying federal complaint seeks to recover damages for civil rights violations pursuant to 42 USC §1983 and neither the parties nor the Supreme Court addressed the provision of Town Code §11-2(A) directing the Town to defend an employee in any action seeking to enforce a provision of 42 USC §1983, the Appellate Division focused “only on the question of whether the federal complaint sufficiently alleged that the harassment occurred while [Bonilla] was acting in the scope of his employment.”

The court explained that the duty to defend an employee or former employee is broader than the duty to indemnify and it is triggered if the civil complaint includes allegations that the employee was acting within the scope of his or her employment at the time of the alleged wrongdoing. In this instance the federal complaint included allegations that Bonilla committed act constituting sexual harassment while acting in the scope of his employment as the Town Clerk, that the Town facilitated a hostile work environment, and that the Town failed to prevent workplace harassment.

Supreme Court determined that the allegations in the federal complaint were sufficient to trigger the Town's broad duty to defend Bonilla notwithstanding the Town’s argument to the contrary and the Appellate Division sustained the Supreme Court’s ruling. Thus, said the court, Supreme Court properly granted the petition to the extent of directing the Town to provide a defense for Bonilla in the federal action.

* With the exception of the provision regarding actions brought to enforce a provision of 42 USC §1981 or 42 USC §1983, the language contained in Town Code §11-2(A) is similar to language set out in Public Officers Law §18 and was enacted as Local Law No. 2-1980, adopted January 8, 1980, effective January 11, 1980.  In contrast to §18 of the Public Officers Law, §17.2(a) of the Public Officers Law provides for “Defense and indemnification of state officers and employees” in civil and federal actions, including actions brought pursuant to 42 USC §1981 or 42 USC §1983.

The decision is posted on the Internet at:

Monday, September 28, 2015

An individual must have standing to bring a proceeding pursuant to Education Law §306


An individual must have standing to bring a proceeding pursuant to Education Law §306
Matter of Luciano, Decisions of the Commissioner of Education, Decision No. 16,828

The critical issue in this appeal concerned the residence of the individual filing a  proceeding pursuant to §306 of the Education Law as, in the words of the Commissioner of Education, “a non-resident does not have standing to bring a proceeding pursuant to Education Law §306 to remove a school official in a district in which he or she does not reside.”

Antonio Luciano file an application seeking to have the Commissioner remove certain members of the school board from their respective positions. The Commissioner found that Luciano lacked standing to file such an application.

The Commissioner explained that an individual may not maintain an appeal unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights and only persons who are directly affected by the action being appealed have standing to bring an appeal.

The decision states that Luciano’s application failed to allege that he was a resident of the district but merely stated that he is “a taxpayer and resident of Rockland County, and a citizen of the State of New York” and that his child “formerly attended schools” within the district. The school district raised the issue of Luciano’s “non-resident” status as an affirmative defense, contending that Luciano application must be dismissed for lack of standing.  Significantly, Luciano failed to file a reply refuting the school district’s affirmative defenses.

On this point the Commissioner noted that §275.14 of the Commissioner’s regulations states that [1] a petitioner shall reply to each affirmative defense; and [2] the result of a petitioner’s failure to do so is that the facts alleged are deemed to be true. However, said the Commissioner, the Commissioner was not required to accept a respondents’ legal conclusions regarding the affirmative defenses; and a legal analysis of the admitted facts with respect to the affirmative defenses must be performed.

In his legal analysis of the matter, the Commissioner found that when Luciano filed his memorandum of law, he also requested permission to file an affirmation by counsel which included new documentary evidence in further support of his application.  One of the documents was an affidavit by Luciano in which he claims residency within the district. The school district, however, objected to the submission of this additional material arguing that Luciano should not be permitted to bolster his defective application “this late in the process.”

The Commissioner agreed, ruling that the “procedural rules set forth an orderly process for framing the relevant issues” and the purpose of a reply is to respond to new material or affirmative defenses set forth in an answer. Further, a reply is to be served within 10 days after service of the answer to which it responds.

The Commissioner found that while Luciano was given an opportunity to timely file a reply containing any exhibits or evidence required to refute respondents’ affirmative defenses, he elected not to do so.  Instead, Luciano waited until he filed his memorandum of law to respond to the affirmative defenses by requesting permission to file additional papers, including his affidavit.  
  
The Commissioner noted that [1] any such additional affidavits, exhibits and other supporting papers “may only be submitted with the prior permission of the Commissioner,” citing 8 NYCRR §276.5 and [2] although this provision permits the submission of additional evidence, “it cannot be used to buttress allegations in the petition.”

The Commissioner found that Luciano offered no explanation or excuse for his delay in filing the additional papers; that his affidavit was executed and dated “an entire month before it was even submitted for consideration.” Because Luciano did not demonstrate good cause for his delay in submitting the additional documentation, the Commissioner ruled that “it is not accepted for consideration.”

In any event, said the Commissioner, “Even if I were to accept the additional papers, [Luciano’s] affidavit fails to prove that he is a district resident with standing to maintain this proceeding. Although his residency is a disputed issue, the affidavit is devoid of any specificity or particulars whatsoever. In the affidavit, [Luciano] offers blanket statements that he has been a resident of the district for 21 years and pays taxes in the district.”

As Luciano failed to provide his address or any documentary evidence establishing his residency within the district, other than his own conclusory statement, and without any evidence of his residence, the Commissioner ruled that his application “must be dismissed for lack of standing.”

The decision is posted on the Internet at:

Saturday, September 26, 2015

Audits issued by the State Comptroller issued during the week ending September 12, 2015



Audits issued by the State Comptroller issued during the week ending September 12, 2015
Source: Office of the State Comptroller
Click on the text in color to access the Comptroller’s report.

On September 25, 2016, New York State Comptroller Thomas P. DiNapoli announced the following audits have been issued. Click on the text in color to access the Comptroller’s report.


State Department of Education: Compliance with the Reimbursable Cost Manual

The Sunshine Developmental School provides special education programs for about 600 children between the ages of three and five years in Brooklyn, Queens and the Bronx. Sunshine’s special education programs are funded by the New York City Department of Education (DoE), as well as other school districts and counties whose children are served by its special education programs. The DoE and other localities reimburse via tuition payments based on reimbursement rates set by SED. Auditors found $1,776,434 in unsupported or inappropriate costs charged to the programs audited. The ineligible charges by Sunshine include personal service costs of $1,392,542 and non-personal service costs of $383,892.


Department of Health: Questionable payments for practitioner services and pharmacy claims

Auditors found the doctor’s medical records did not meet the minimum standards to support his Medicaid claims. A review of a sample of the records found that they contained inadequate and sparse detail. Further, DOH’s review of the records found that they lacked sufficient details to ensure adequate treatment of complex diseases, contained no treatment plans and were illegible. There was insufficient assurance that the doctor provided appropriate medical care and that services totaling $1,039,404 warranted Medicaid payment. Auditors also questioned whether pharmacy claims totaling approximately $15 million for prescription drugs ordered by the doctor were all necessary.


Department of Health: Bureau of Narcotic Enforcement [Follow-up]

An initial audit report issued in November 2012 examined whether the Bureau of Narcotic Enforcement was effectively and efficiently combating prescription drug diversion and abuse in New York state, in large part through its analysis and use of prescription data that it maintains electronically. Auditors found several areas where the bureau could improve its ability to ensure its resources are used effectively to stem drug diversion and abuse through a range of efforts, from prevention and deterrence to detection and prosecution. In a follow-up report, auditors found DOH has made progress in enhancing its electronic prescription data and in some of the routine analyses that it performs using this data. It has also improved security and accountability over blank prescription forms returned to its office and to its suppliers.


Metropolitan Transportation Authority: Diversions of service for maintenance and capital projects

An initial report issued in July 2011 determined that while the MTA has a number of policies and procedures for managing and controlling subway diversions, more needed to be done. The audit found that diversion costs were not adequately monitored, and daily work on diversions often started late and ended early. The public was not adequately informed about diversions, shuttle bus service was not planned using current ridership data and the budget for advertisements to communicate information about diversions appeared to be too low. In a follow-up, auditors found MTA officials have made some progress in correcting the problems identified. However, additional improvements are needed.


Metropolitan Transportation Authority: Staten Island Railway on-time performance

The Staten Island Railway’s (SIR) on-time performance percentage generally approached or exceeded its standard of 95 percent. However, auditors also noted that SIR does not completely report the timeliness of trains to the public. Sometimes trains were intentionally held beyond scheduled departure times to accommodate passengers disembarking from the Staten Island Ferry. Also, trains headed to the ferry were sometimes given priority over scheduled outbound departures, causing the outbound trains to be delayed.


Friday, September 25, 2015

Certain political subdivisions of the State continue of experience fiscal stress


Certain political subdivisions of the State continue of experience fiscal stress
Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has designated 44 municipalities across the state as fiscally stressed -- 12 counties, 11 cities and 21 towns. For the third consecutive year DiNapoli’s office has evaluated the financial stability of local governments and has identified 70 municipalities in fiscal stress at least once during this period. The report is posted on the Internet at: http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/munis_stressed2014.pdf

“The financial trends in some local governments have not improved over the past three years, and it is looking tougher for New York’s cities,” said DiNapoli. “While it is clear that our municipalities continue to struggle with balancing revenues against increasing costs, we also know that sensible budgeting and developing comprehensive multiyear financial plans are crucial to overcoming both current and future fiscal challenges.”

The latest round of scores is based on 2014 financial information provided to DiNapoli’s office by local governments as of Aug. 31, 2015 and includes only municipalities with fiscal years ending on Dec. 31, 2014. In New York, all counties and towns, 44 cities and 10 villages have a calendar-based fiscal year – a total of 1,043 communities.

Based on their 2014 financial statements, 15 entities have received the highest designation of “significant fiscal stress.” This includes the counties of Monroe, Broome, Nassau, St. Lawrence, Franklin and Rockland; the cities of Glen Cove and Albany; and the towns of East Fishkill, Jasper, Ramapo, Pierrepont, Coeymans, Cherry Valley and Parish.

Eleven communities have been listed in the second highest category of “moderate fiscal stress.” This includes Suffolk County, the cities of Poughkeepsie, Little Falls, Fulton and Glens Falls; and the towns of Hempstead, Colonie, Napoli, Saugerties, Rochester and German Flatts.

Another 18 municipalities have been listed in the third category as “susceptible to fiscal stress.”

DiNapoli’s monitoring system evaluates local governments on nine financial indicators and creates a fiscal condition score. Indicators include fund balance, cash-on-hand and patterns of operating deficits. The system also evaluates environmental information such as population trends, poverty and unemployment. Each municipality receives a separate environmental score.

When examining the scoring results, DiNapoli noted 14 municipalities were designated in stress for each of the three years since he implemented the system, 21 were in stress in two out of three years and 35 for only one of three years. Most notably, four counties have been in significant stress for all three years (Franklin, Monroe, Rockland and St. Lawrence).

Other findings include:

* Last year 35 calendar year entities were designated as fiscally stressed;

* Twenty calendar year entities moved into a fiscal stress category in 2014;

* Eleven calendar year entities moved out of fiscal stress category in 2014;

* In 2014, more than 21 percent of counties and 25 percent of calendar year cities were in a fiscal stress category, while just over 2 percent of towns were stressed;

* Downstate had a larger percentage of calendar year entities in stress, with 25 percent of those on Long Island (4 of 16) and 8 percent of those in the Mid-Hudson region (10 of 123) listed; and

* More than two dozen municipalities failed to file their financial data in time to receive a fiscal stress score in all three reporting years. This includes the city of Ithaca and 25 towns.

The fiscally stressed governments identified today join the previously announced 115 municipalities and school districts that have been classified in some level of fiscal stress as of their 2014 fiscal year end date.

Last year, DiNapoli’s legislative proposal to help local governments across New York improve their long-term budget planning was signed into law. The law allows counties, cities, towns and villages identified as fiscally stressed to be reimbursed by the state’s Financial Restructuring Board for Local Governments for all or part of the costs associated with long-term budget planning, including hiring financial advisors to assist in the development of multi-year budget plans.

Multiyear financial planning is a tool that will enable these entities to develop revenue and expenditure trends, establish long-term priorities and goals, and take into consideration the impact of near-term budgeting decisions on future fiscal years. It also allows officials to assess alternative approaches to financing operations.

In addition, DiNapoli's Division of Local Government and School Accountability conducts ongoing outreach with local government officials throughout the fiscal monitoring process and has created a number of tools to help municipal officials better understand their financial data, the impact it has on their score and their financial condition. The Comptroller’s office has also launched a new training academy for local government officials that will increase training efforts related to financial oversight and budgeting activities.

For a copy of DiNapoli’s report Three Years of the Fiscal Stress Monitoring System, visit:
http://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/threeyearsfsms_0915.pdf

To view the complete, sortable list of fiscal scores for municipalities, visit:
http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsms.cfm

For more detailed information about the Comptroller’s fiscal stress monitoring system and to view reports related to local government fiscal stress visit:
www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

For access to state and local government spending, public authority financial data and information on 50,000 state contracts, visit Open Book New York. The easy-to-use website was created by DiNapoli to promote openness in government and provide taxpayers with better access to the financial workings of government.

Thursday, September 24, 2015

The Jurisprudence of Yogi Berra


The Jurisprudence of Yogi Berra
Source: Brian Costello, Esq., Loyola Law School, Los Angeles 

The late Yankee baseball player Yogi Berra’s way with words reached all the way to legal academia.

In 1997, a group of Loyola Law School, Los Angeles, professors contributed to a law review article The Jurisprudence of Yogi Berra which promised to "examine Yogi's wisdom and demonstrate the parallels between judges' and legislators' comments and what Yogi said - only Yogi said it better." 


The law review article is available on the Internet at:

Court reviews the law of an employer’s liability for the negligent in hiring, training, supervising and retaining an employee alleged to have violent propensities


Court reviews the law of an employer’s liability for the negligent in hiring, training, supervising and retaining an employee alleged to have violent propensities
Gonzalez v City of the New York, 2015 NY Slip Op 06869, Appellate Division, First Department

This action arose from the shooting death of Shirley Fontanez by her boyfriend, a New York City Police Officer, Frederick Maselli, at his home, on July 23, 2007. After the shooting, Maselli killed himself. Plaintiff Keyla Virginia Gonzalez, as administrator of the Estate of Fontanez, alleged that numerous complaints were made to the City of New York concerning Maselli's abusive conduct toward Fontanez and her daughter, that the City was negligent in hiring, training, supervising and retaining Maselli, and in failing to take action to remove his firearm, and thereby caused Fontanez's wrongful death.

Although Supreme Court granted the City’s motion for summary judgment dismissing the action on the ground that any negligence on City's part for failing to discharge a police officer with violent propensities could not have been the proximate cause of Fontanez's death, since at the time of the fatal shooting, Maselli was off-duty and was acting outside the scope of his employment, the Appellate Division disagreed and said that the dispositive issue that to be resolved was whether the fact that the police officer was off duty when he committed the fatal shooting breaks any connection, as a matter of law, between the fatal injuries and the employer's alleged negligence regarding an employee with violent propensities.

The Appellate Division found that under the circumstances, this case presented genuine issues of material fact as to whether the City negligently supervised and retained an officer with violent propensities, and whether the intervening intentional tort of the off-duty officer was itself a foreseeable harm that shaped the duty imposed upon the City when it failed to guard against a police officer with violent propensities. When such questions of breach of duty and proximate cause exist, summary judgment is not proper. These questions of fact, said the court, must be reserved for the jury.

In its analysis of the relevant law involved, the Appellate Division noted, in part, the following:

1. Citing Haddock v City of New York, 75 NY2d 478, the court said that in this case the alleged duty owed to plaintiff stems from New York's long recognized tort of negligent hiring and retention and this tort applies equally to municipalities and private employers.

2. Under the theory of negligent hiring and retention, an employer may be liable for the acts of an employee acting outside the scope of his or her employment in contrast to employer liability under legal doctrine of "respondeat superior," where an employer is held liable for the wrongs or negligence of an employee acting within the scope of the employee's duties or in furtherance of the employer's interests.

Here, said the court, the alleged breach of duty stems from the claim that during the Maselli’s employment with the City, the City became aware or should have become aware of problems with the police officer that indicated he was unfit (i.e. possessed violent propensities), that the City failed to take further action such as an investigation, discharge, or reassignment, and that Fontanez's damages were caused by the City's negligent retention, or supervision of Maselli. The duty not to entrust a gun to a dangerous or incompetent police officer thus extends to any person injured as a result of the negligent entrustment.

3. New Yorkcourts have held governmental employers liable for placing employees, like police officers who are known to be violent, in positions in which they can harm others.

4. The torts of negligent retention and supervision of governmental employees with dangerous propensities do not specifically require allegations that the employees' misconduct occur within the course and scope of the employment. Rather, what the plaintiff must demonstrate is a connection or nexus between the plaintiff's injuries and the defendant's malfeasance.

The Appellate Division said that in its view, both the type of harm that occurred and the person upon whom the injury was inflicted were foreseeable within a degree of acceptability recognized by New York law and it was reasonably foreseeable that such an officer would injure a member of his own family, including his girlfriend.

Finally, the Appellate Division said it was aware of the fact that all police personnel involved in this case have adamantly denied ever receiving even a single complaint about Maselli’s alleged violent propensities. In contrast, said the court, Plaintiff Gonzalezhas presented evidence that the City was informed on numerous occasions, prior to the fatal shooting, about Maselli’s abusive conduct toward Fontanez and her daughter.

Under the circumstances, the Appellate Division ruled that this case presented genuine issues of material fact as to whether the City negligently supervised and retained an officer with violent propensities, and whether the intervening intentional tort of the off-duty officer was itself a foreseeable harm that shaped the duty imposed upon the City when it failed to guard against a police officer with violent propensities.

When such questions of breach of duty and proximate cause exist, summary judgment is not proper. Reversing the ruling of the Supreme Court, the Appellate Division held that “[T]hese questions of fact must be reserved for the jury and Supreme Court should not have granted the City's motion for summary judgment on the issue of proximate cause.”

The decision is posted on the Internet at:
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Wednesday, September 23, 2015

Employee deferred compensation plan proposals requested


Employee deferred compensation plan proposals  requested
Source: New York State Register dated September 23, 2015

The Town of Lyons is requesting proposals from qualified administrative services agencies and, or, financial organizations relating to administration, trustee services and, or, funding of a deferred compensation plan for employees of The Town of Lyons meeting the requirements of Section 457 of the Internal Revenue Code and Section 5 of the State Finance Law, including all rules and regulations issued pursuant thereto.

A copy of the proposal questionnaire may be obtained from the Town of Lyons Town Clerk,  Sal Colatarci, 43 Phelps St., Lyons, NY 14489. Telephone: (315) 946-6252 (ext. 10) or e-mail the Town at  e-mail: townofly@rochester.rr.com

All proposals must be submitted no later 30 days from the date of publication in the New York State Register no later than 4:30 p.m.

A public employee’s First Amendment right of free speech involving matters of public concern is subject to the Pickering Balancing Test


A public employee’s First Amendment right of free speech involving matters of public concern is subject to the Pickering Balancing Test
Munroe v Central Bucks School District, United States Court of Appeals, Third Circuit, Docket #14-3509

It is well settled that “Public employees do not surrender all of their First Amendment rights merely because of their employment status. Thus a public employer may not discharge an employee on a basis that infringes that employee's constitutionally protected interest in freedom of speech." As the United States Supreme Court commented in Pickering v Board of Education, 391 U.S. 563* “Free and unhindered debate on matters of public importance constitutes a core value of the First Amendment.”

When the Central Bucks School District, a school district in Pennsylvania [Respondent] terminated Natalie Monroe [Teacher] from her teaching position, she sued the District alleging “First Amendment retaliation.” Teacher contended that her dismissal resulted from her making a number of derogatory comments about her own students on her personal Internet blog. In its defense, one Respondent witness testified that Teacher’s blog entries concerning the school and her students that “To say it was a disruption to the learning environment is an understatement.”

The United States District Court for the Eastern District of Pennsylvania granted the Respondent’s motion for summary judgment, holding that in its opinion Respondent had not violate Teacher’s constitutional right to free expression based on its determination that “as a matter of law that [Teacher’s] comments do not merit protection under the balancing test established by [Pickering and thus] ”it believed it was unnecessary to reach the question of whether [Teacher’s] speech directly caused her termination.”

Teacher appealed but the U.S. Circuit Court of Appeals, Third Circuit, sustained the district court’s ruling, holding that applying the Pickering balancing test, “[Teacher's] speech did not rise to the level of constitutionally protected expression.”

The court said that "the [public employer] 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" and "the government as employer" possesses "far broader powers than does the government as sovereign."

The Circuit Court’s decision pointed out that should a person enter government service, he or she by necessity must accept certain limitations on his or her freedom as government employers, like their private counterparts, still "need a significant degree of control over their employees' words and actions; without it, there would be little chance for the efficient provision of public services."

Thus, said the Circuit Court, a public employer may impose speech restrictions that are necessary for efficient and effective operations but where employees are speaking as citizens about matters of public concern, they face only those speech restrictions that are necessary for their employers to operate efficiently and effectively. Accordingly, “speech that relates solely to mundane employment grievances does not implicate a matter of public concern.”

As to Teacher’s speech, the Circuit Court said that assuming that her speech “implicated a matter of public concern, this does not mean that her speech constituted speech protected by the First Amendment.” Further, said the court, “even if [Teacher's] speech was a matter of public concern, it was not constitutionally protected because the Pickering balancing test weighed in favor of [Respondent].”

* A summary of Pickering, “Essentials of the "Pickering Balancing Test” is posted on NYPPL at http://publicpersonnellaw.blogspot.com/2010/01/essentials-of-pickering-balancing-test.html

The decision is posted on the Internet at:

Tuesday, September 22, 2015

Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation


Claim of qualified immunity not available to a public official when the law giving rise to the violation was clearly established at the time of the violation
Morse v Fusto, US Circuit Court of Appeals, Second Circuit, Docket 13-4074


Qualified immunity protects public officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights that a reasonable person would have known.

A grand jury indicted a dentist [Dentist], charging Dentist  with one count of Grand Larceny in the First Degree in violation of Penal Law §155.42 and eleven counts of Offering a False Instrument for Filing in violation of Penal Law §175.35.

These charges led to Dentist’s suspension from the New York Medicaid Program upon which his practice had depended; the liquidation of his dental practice as a consequence of such suspension; the loss of his teaching position at a New York hospital;* the public dissemination of the story of his indictment, including at least one press release issued by the Office of the Attorney General; and newspaper articles in various newspapers.

Upon his acquittal of all charges, Dentist brought an action against a Special Assistant Attorney General and an Audit-investigator [Defendants] in federal district court alleging that Defendants had deprived him of his constitutional right to a fair trial by intentionally manipulating certain information on spreadsheet summary charts before they were presented to the grand jury in order to create the false impression that Dentist billed Medicaid for dental services that he did not provide.

Essentially, Dentist contended that Defendants, acting as government officials in an investigative capacity, knowingly created false or misleading evidence.

Defendants, in rebuttal, claimed “qualified immunity,” and asked the federal district to grant them summary judgment dismissing Dentist’s complaint.

The district court denied Defendants’ motion and the jury returned a verdict in favor of Dentist based on its finding that Defendants “knowingly created false or fraudulently altered documents” to the grand jury.

Defendants appealed the district court’s denial of their motion for summary judgment, contending that “their conduct was not clearly prohibited by the Constitution and that they were therefore entitled to qualified immunity as a matter of law.”

The U.S. Circuit Court of Appeals affirmed the district court’s ruling, denying Defendant's motion for summary judgment stating that it had concluded that the Defendants were not entitled to qualified immunity. The court said that Dentist’s Constitutional rights had been violated and “the law giving rise to the violation was clearly established at the time of the violation.”

Further, the Circuit Court also concluded that “the district court did not err by declining to order a new trial despite its conclusion that one of the factual assertions upon which the verdict was based was insufficiently supported by the evidence.”

* Dentist regained his teaching position following his acquittal.

The decision is posted on the Internet at:

Monday, September 21, 2015

State’s removing a private lawsuit from State court to Federal court waives a State’s 11th Amendment immunity but may not affect its general sovereign immunity


State’s removing a private lawsuit from State court to Federal court waives a State’s 11thAmendment immunity but may not affect its general sovereign immunity
Beaulieu v State of Vermont, US Circuit Court of Appeals, Second Circuit, Docket #13-4198-cv

704 current and former employees of the State of Vermont [Plaintiffs], brought an action in State court contending that because their weekly pay is or was reduced for partial-day absences in excess of their accrued leave, they are or were not paid on a “salary basis” under the Fair Labor Standards Act [FLSA] and are thus entitled to overtime pay at one and one-half times their regular rate.

Vermont  removed the action from Vermont   state court to the United States District Court, District of Vermont.

Vermont then moved to dismiss Plaintiff’s action based on its claim that it was immune from private lawsuit. The District Court agreed and dismissed the lawsuit “by reason of Vermont’s sovereign immunity* from private lawsuits.” Plaintiffs appealed.

The Circuit Court of Appeals affirmed the District Court’s ruling, explaining that although Vermont’s removal of Plaintiffs’ private lawsuit from Vermont state court to the United States District Court resulted in a waiver its Eleventh Amendment immunity from suit in federal court, it had not waived its general sovereign immunity from private lawsuits within the meaning of Vermont State Law.

Plaintiffs had argue that a statutory provision, Vermont Statutes Title 21, §384(b)(7) constituted an express waiver of the Vermont’s immunity from private actions brought under the FLSA. The Circuit Court disagreed, noting that although Title 21 provides that “[A]n employer shall not pay an employee less than one and one-half times the regular wage rate for any work done by the employee in excess of 40 hours during a workweek,” the statute further provides that “this subsection shall not apply to: (7) State employees who are covered by the Federal Fair Labor Standards Act.”

In the words of the Circuit Court, “Plaintiff's argument misunderstands the difference between the applicability of a federal statute to a state enacting lawful obligations upon the state, and the state's amenability to a private entity's suit to enforce such an obligation. There is no doubt that the FLSA applies to Vermont and creates a legal obligation on Vermont to pay its employees in accordance with the statute's terms. Nonetheless, Vermont's sovereign immunity—unless waived or forfeited—bars suit by a private entity seeking to enforce the FLSA's terms.”

Accordingly, said the court, “[t]he fact that Vermont state employees are covered by the FLSA does not mean that those employees are entitled to sue Vermont under the FLSA's private right of action,” concluding that the District Court correctly dismissed Plaintiffs private lawsuit on the basis of Vermont's general sovereign immunity, which Vermont had not waived. 

* The Doctrine of Sovereign Immunity holds that the state cannot commit a legal wrong and thus is immune from civil suit or criminal prosecution unless it has unequivocally waived such immunity.
 

The decision is posted on the Internet at:

Saturday, September 19, 2015

Former NYS Member of the Assembly sentenced after being found guilty of fraud and theft


Former NYS Member of the Assembly sentenced after being found guilty of fraud and theft
Source: Office of the State Comptroller

Former New York State Assemblyman William Scarborough, of Queens, New York, was sentenced to 13 months in prison and two years of supervised release after being convicted of wire fraud and theft from a program receiving federal funds and related to his wrongful receipt of per diem payments from New York State for alleged travel expenses.

A written plea agreement required him to resign his position as a Member of the New York State Assembly.

The text of the Comptroller’s press release reporting this action is posted on the Internet at:

Friday, September 18, 2015

An individual is entitled to be represented by an attorney in an administrative hearing


An individual is entitled to be represented by an attorney in an administrative hearing
Matter of Odom (Commissioner of Labor), 2015 NY Slip Op 06861, Appellate Division, Third Department

Odom appealed a determination by the Unemployment Insurance Appeal Board, ultimately ruled, among other things, that Odom was disqualified from receiving unemployment insurance benefits because she lost her employment due to misconduct.

The Appellate Division reversed the Board’s determination and remanded the matter to the Board for further proceedings.

The court said that the record demonstrated that at the commencement of the administrative hearing Odom informed the Administrative Law Judge that her attorney was unavailable, but that she "would like for him to come" to the hearing. 

Notwithstanding this statement by Odom, said the Appellate Division, “the Administrative Law Judge continued to question [Odom] until she agreed to proceed pro se.”*

The court found that Odom’s right to have counsel present to represent her a the administrative hearing was violated under these circumstances.

* By proceeding pro se, Odom would be serving as her own attorney in this quasi-judicial proceeding.

The decision is posted on the Internet at:

Thursday, September 17, 2015

A party's participation in the arbitration proceeding deemed a concession by the party that the arbitration panel has jurisdiction to consider and decide the matter


A party's participation in the arbitration proceeding deemed a concession by the party that the arbitration panel has jurisdiction to consider and decide the matter
D'Ropshitz v Schwartz, 2015 NY Slip Op 06814, Appellate Division, Second Department

An arbitration award dated August 20, 2012was issued by the arbitration panel. Schwartz then alerted the arbitration panel that the August 20, 2012, award had left an issue unresolved and met with the panel. This resulted in the arbitration panel issuing an award dated July 2, 2013.

When D’Ropshitz brought a CPLR Article 75 action to confirm the panel’s July 2, 2013 award Schwartz objected, contending that after issuing its arbitration award dated August 20, 2012 the arbitration panel did not have jurisdiction to issue the arbitration award dated July 2, 2013. Supreme Court, Kings Countyconfirmed the July 2, 2013 award, [in part] and Schwartz appealed the Supreme Court’s determination.

The Appellate Division affirmed the Supreme Court’s confirmation of the award [in part], explaining that Schwartz waived any argument that the arbitration panel exceeded its authority or was without jurisdiction with respect to its issuing the July 2, 2013 award by alerting the arbitration panel that the August 20, 2012, award had left an issue unresolved and then meeting with the panel, during which Schwartz suggested "that the panel members visit the subject site so that they might have a better understanding of the issue.”

Also, as the Court of Appeals held in United Federation of Teachers, Local 2 v Board of Education of the City of New York, 1 NY3d 72, "a party that participates in the arbitration may not later seek to vacate the award by claiming it never agreed to arbitrate the dispute in the first place."

The decision is posted on the Internet at:

Wednesday, September 16, 2015

Florida resident convicted of stealing NYS pension checks sent to his deceased mother


Florida resident convicted of stealing NYS pension checks sent to his deceased mother
Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced that Marc A. Eletz, 70, a resident of Boca Raton, Florida, pleaded guilty* Thursday to the crime of Grand Larceny in the Third Degree, a class D felony, in Albany County Court. The plea stems from charges that Mr. Eletz stole over $275,000 in New York state pension benefits that were issued to his deceased mother.

Eletz admitted to stealing pension benefits from the New York Stateand Local Employees Retirement System payable to his deceased mother, Fay Eletz. According to the Comptroller and the Attorney General, Eletz’s father, Milton Eletz, was a New Yorkstate pensioner who elected to receive reduced monthly benefits so his wife, Fay Eletz, would continue to receive benefits after his death in 1988. From 1992 until July 2014, these benefits were deposited into a joint account held by the Marc Eletz and his mother.

After his mother died in April 2001, Eletz continued to receive these benefits until July 31, 2014, totaling $276,721.24. Eletz accessed these funds from the joint account and liquidated all but $1,801.08 of the pension benefits over that time period.

Eletz pleaded guilty before Judge Peter Lynch in Albany County Court and paid $150,000 in restitution. Eletz is expected to be sentenced to one year in jail and will sign a confession of judgment in favor of New York Statefor an additional $124,987.

This case is the latest joint investigation under the Operation Integrity partnership between the Attorney General and Comptroller, which has resulted in dozens of convictions and more than $6 million in restitution. 

The joint investigation was conducted with the Comptroller’s Division of Investigations. The Attorney General’s investigation was conducted by Investigators Barbara Butler and Mitchell Paurowski and Deputy Chief Antoine Karam.  The Investigations Bureau is led by Chief Dominick Zarrella. 

This case is being prosecuted by Assistant Attorney General Philip V. Apruzzese of the Criminal Enforcement and Financial Crimes Bureau.  The Criminal Enforcement and Financial Crimes Bureau is led by Bureau Chief Gary T. Fishman and Deputy Bureau Chiefs Stephanie Swenton and Meryl Lutsky.  The Division of Criminal Justice is led by Executive Deputy Attorney General Kelly Donovan.

Since taking office in 2007, Comptroller DiNapoli has been committed to fighting public corruption and encourages the public to help fight fraud and abuse.  New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.state.ny.us, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 14th Floor, 110 State St., Albany, NY 12236

* A plea of guilty is deemed a conviction of the crime charged. 


Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

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Challenging Adverse Personnel Decisions at http://nypplarchives.blogspot.com

The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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