Modifying a disciplinary penalty

Modifying a disciplinary penalty
Brown v Penn Yan CSD, 275 AD2d 931

Knight v BOCES, App. Div., Fourth Dept., 275 AD2d 1038

Courts are frequently requested to review disciplinary penalties imposed on employees found guilty in administrative disciplinary procedures. The Brown and Knight decisions by the Appellate Division, Fourth Department, involved just such reviews.

The Brown decision:

The Brown decision illustrates the application of the so-called Pell doctrine [Pell v Board of Education, 34 NY2D 222] which bars the imposition of a disciplinary penalty that the court determines is disproportionate to the offense or offenses for which the employee was found guilty.

Penn Yan Central School District custodian James Brown was found guilty of a number of the disciplinary charges filed against him. Specifically, Brown was found guilty of:

1. failing to clean his assigned rooms adequately;

2. sweeping orange peels from the side of the cafeteria for which he was responsible to the side for which a co-worker was responsible; and

3. leaving work 20 minutes early.

The penalty imposed by the district: termination of employment. Brown appealed, claiming that the penalty of dismissal was unlawfully harsh.

The Appellate Division agreed, commenting that while there was substantial evidence in the record to support a finding of guilt, the penalty of dismissal was so disproportionate to the offense as to shock one’s sense of fairness.

One element used by the Appellate Division in justifying its mitigating the imposition of dismissal as a penalty was that Brown was found guilty of charges involving a single occurrence on three separate dates.

Another factor, said the court, was that [e]ven considering the prior incidents of similar misconduct for which [Brown] had received warnings, terminating Brown, a 12-year employee, was an excessive penalty within the meaning of the Pell doctrine.

Although a court would usually remand such a case to the appointing authority for its determination of a lesser penalty, here the Appellate Division decided to exercise its discretion and set the penalty itself. The penalty it imposed: suspension without pay or benefits for one year -- retroactive to October 29, 1999.

The Knight decision:

The BOCES terminated Kathryn Knight, a certified occupational therapy assistant, after she was found her guilty of abusing sick and personal leave and submitting a false claim for reimbursement.

The Appellate Division sustained Knight’s dismissal, holding that [a] high degree of deference is to be accorded to an agency’s determination of the appropriate penalty to be imposed.

As to the application of the Pell Doctrine, the court commented that it cannot be said here that the penalty of termination, when considered in light of all of the circumstances of this case, is so disproportionate to the offense as to be shocking to one’s sense of fairness.

Some other considerations: While a court may sustain the disciplinary penalty imposed, remand the case to the appointing authority to impose a new, and lesser, penalty, or impose a lesser penalty as a matter of discretion, may it provide for the imposition of a harsher penalty?

Clearly there are precedents for the appointing officer to impose a harsher penalty than the one recommended by a disciplinary hearing officer. Russo v Wantagh UFSD, App. Div., No. 98-06421, decided March 22, 1999 is an example of such an action.

Although Russo protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty, the Appellate Division ruled that under the circumstances of this case, the termination of the petitioner’s employment was not so disproportionate to the offense as to shock one’s sense of fairness, again quoting the Pell standard.

Similarly, the Commissioner of Education occasionally substituted his judgment for that of a disciplinary panel in considering appeals from disciplinary actions taken under Section 3020-a prior to its amendment in 1994.

For example, in Shurgin v Ambach, 56 NY2d 700, the Court of Appeals affirmed the authority of the Commissioner to decide that a reprimand was a disproportionately lenient penalty for a very serious offense.

The hearing panel in Shurgin had imposed a reprimand as the penalty for the teacher’s poor judgment in showing his class pornographic films. The district appealed and the Commissioner authorized the district to terminate Shurgin.

As to the authority of a court to direct the imposition of a harsher penalty, in Ford v CSEA, 94 AD2d 262, the Appellate Division decided that it could remand the case for such a purpose. Its theory: under the circumstances a lesser penalty constituted a violation of a strong public policy and thus was irrational.

The issue arose in connection with disciplinary action taken against an employee of the Department of Mental Hygiene. The charge filed against the employee: having sexual relations with a patient.

The arbitrator found the employee guilty. Although the agency had sought to have the employee dismissed, the arbitrator imposed the penalty of a two-month suspension without pay because the patient consented to the sexual act that the arbitrator characterized as minimal patient abuse.

The agency head (Ford) appealed in an effort to have the arbitrator’s award vacated and the penalty of dismissal imposed.

The Appellate Division, concluding that the arbitrator exceeded his powers and made an irrational award in violation of ‘a public policy which is beyond waiver’ (by the State), remanded the matter for adjudication by a different arbitrator.

The court noted that “mental patients are incapable of “consent” in (this) context ....” The arbitrator’s determination of physical abuse cannot be passed off lightly with an adjective such as minimal. It found such a characterization by the arbitrator making the original determination appalling and the arbitrator’s refusal to impose the penalty of termination plainly irrational.

Another basis for vacating an arbitrator’s or hearing officer’s determination is a finding that the determination is pre-empted by a court ruling. For example, if an employee is found guilty in a court of law of a crime such as stealing, and disciplinary charges are subsequently filed based on that same incident of theft, the hearing officer or the arbitrator may not find the employee not guilty of stealing.

As the court ruled in Kelly v Levin, 440 NY2d 424, acquitting an employee in an administrative disciplinary action is a reversible error if the individual previously was found guilty of a criminal act based on the same allegations.

The Kelly case involved a school business administrator against whom Section 3020-a charges alleging larcenies of school funds and bringing discredit upon the school district. The disciplinary panel the administrator guilty of the charge of bringing discredit upon the district, but not guilty of the larceny charges.

The Court held that the fact that the administrator had committed two larcenies of school property was conclusively established under the doctrine of collateral estoppel. Finding that hearing panel’s decision was based on a finding of guilt of the bringing discredit charge only, the matter was remitted to the panel for reconsideration of the appropriate penalty to be imposed in consideration of being found guilty of the larceny charges as well.

The reason: the standard of proof required in a criminal proceeding is greater than that in an administrative disciplinary proceeding. In a criminal case, the standard is proof beyond a reasonable doubt; in a Section 3020-a disciplinary action the standard is preponderance of the evidence, a significantly lower threshold upon which to base a finding of guilt.

However, what happens if the criminal conviction is subsequently reversed. In Beard v Newburgh, 259 AD2d 613, the court said that since the disciplinary arbitrator gave collateral estoppel effect to Beard’s conviction in the criminal action, the disciplinary award had to be vacated. Why so? Because, the court explained, the arbitration award was based exclusively on a criminal conviction that was reversed on appeal. The Appellate Division court directed that a new disciplinary hearing be conducted by the arbitrator.

Readers of NYPPL use a variety of operating systems to access its content

Readers of NYPPL use a variety of operating systems to access its content
Reported by Google

NYPER trivia for December 2010.

Google Statistics reports NYPPL readers used the following means to access this LawBlog.

Windows 47,266

Macintosh 4,133

Other Unix 3,706

iPhone 339

BlackBerry 295

Linux 250

iPad 177

iPod 69

Nokia 54

Palm 38

Liquidation of employee leave credits upon separation

Liquidation of employee leave credits upon separation
Source: A question of general interest submitted by a NYPPL reader

A NYPPL reader asks: "Should an employee be separated from his or her public employment what happens to the employees leave accruals? Is the municipality allowed to keep the money? Where does the money go?”

The most common types of leave accruals or credits that may be credited to an individual at the time of his or her separation are 1. Vacation Leave accruals, 2. Sick Leave accruals, 3. Personnel Leave credits; 4. Overtime credit, and 5. Compensatory leave credit.
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The most common types of personnel transactions in which the question may arise are in the context of a resignation, retirement or death or upon termination for cause [see, generally, 4 NYCRR 23.1].

Less common are situations where the liquidation or use of leave credits is coupled with a leave of absence [see, for example, Civil Service Law §§71 and 72], a transfer [see 4 NYCRR 23.3], absence for military leave [see 4 NYCRR 23.2], a layoff, or a jurisdictional reclassification of an individual’s position [see, for example, Education Law §355.10(c).

The New York State Civil Service Commission's Rules for the Classified Service, 4 NYCRR 30.1, provides for the payment of certain leave accruals upon separation. Many local employees are subject to similar rules or regulations promulgated by a local civil service commission or set out in a collective bargaining agreement.

In addition, there may be provisions set out in an “employment contract” between a public employer and an individual that may be controlling as could be the case with respect to a contract between a school district and its school superintendent.

The State Commission's Rules basically provide that at the time of separation from State service, the employee or the employee’s estate or beneficiary, as the case may be, shall be paid in cash for unused vacation credits not in excess of 30 days. The Commission’s Rules, however, do not provide for the payment of unused sick leave* or personal leave credits [see 4 NYCRR 21.5(b)].

However, the Rules also set out two significant exceptions to such liquidation:

1. In the case of resignation, the appointing authority may require, as a condition for receiving payment for accrued but unused annual leave credit, that employee provide written notice of his or her resignation at least two weeks prior to the last day of work; and

2. No employee [subject to the Commission's Rules] who is removed from State service as a result of disciplinary action, or who resigns after being served with charges of incompetency or misconduct shall be entitled to compensation for vacation credits.

It should be noted that both these limitations apply only to "vacation accruals."

“Overtime accruals" and “compensatory time credit” are distinguished from vacation accruals, as they are provided as a result of work performed. As such accruals and credits are provided in lieu of cash compensation, they constitute "earnings" or "salary" for actual service rather than a fringe benefit such as "vacation leave credits" and up to 30 days of each may be liquidated in cash upon separation [see 4 NYCRR 23.3].

Under certain circumstances, however, it appears that the payment of vacation accruals will be madatory. For example, in Clift v City of Syracuse, 45 AD2d 596, the Appellate Division ruled that if an employee was refused permission to use his or her leave credits and was subsequently terminated, the individual was entitled to payment for his or her unused vacation accruals.

Another decision, Degnan v Constantine, 189 AD2d 423, illustrates the strict construction courts generally give to regulations involving the forfeiture of leave credits.

Degnan, a State Trooper, was eligible to retire when charges of misconduct were filed against him. In order to avoid a disciplinary hearing he "accelerated his original date of retirement."

After he retired Degnan asked for payment for the 30 days of unused vacation leave he had to his credit at the time of his retirement. State Police rejected his request, advising him that because he had resigned from service "in order to evade the charges pending" against him at the time his leave credits were, in effect, forfeited.

The Appellate Division ruled that "the clear and unambiguous language of [Division's] regulations requires that [Degnan] be compensated for up to 30 days of accrued annual leave...." as Degnan, faced with disciplinary charges, did not resign -- he retired instead.

The Appellate Division said that "it is axiomatic that an agency is bound by the language of its own regulations and cannot construe it in such a manner that the plain language on the face of the regulation is rendered meaningless."

In the words of the Appellate Division, "obviously had [the Division of State Police] intended that accrued vacation time be withheld in the case where a member retires during the pendency of disciplinary charges, the regulations would have so provided."

Another element to consider: the impact the Taylor Law. Does the relevant collective bargaining agreement set out the terms and conditions for the liquidation of leave credits upon separation? Could the liquidation of leave credits upon separation be deemed a "past practice" within the meaning of the Taylor Law? The answer is yes to both!

PERB has ruled that the liquidation of leave credits is a mandatory subject of collective bargaining and thus a unilateral changing of a past practice concerning the liquidation of leave credits in cash constituted an unfair labor practice [Center Moriches Administrators Association and Center Moriches UFSD, 28 PERB 3031].

Recent court rulings in which the payment of accrued leave credits upon separation was an issue include:

Boakye-Yiadom v Roosevelt Union Free School Dist., 25 Misc 3d 1226(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2007/2007_52657.htm;

Garrigan v Incorporated Vil. of Malverne, 59 AD3d 662
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_01441.htm;

Hauptman v Village of Elmira Hgts., 23 Misc 3d 439
The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2004/2004_24572.htm;

Matter of Curra v New York State Teachers' Retirement Sys., 18 Misc 3d 1144(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2005/2005_52354.htm; and

Matter of Palandra v New York State Teachers' Retirement Sys., 27 Misc 3d 1214(A)
The decision is posted on the Internet at: http://www.nycourts.gov/reporter/3dseries/2010/2010_50735.htm .

* Employees of the State as an employer retiring with unused sick leave credits may have the actuarial value of such credits applied towards the payment of contributions otherwise required for their NYSHIP health insurance premiums upon retirement [see Civil Service Law §167.4] and, in addition, may receive additional “years of service” credit in determining their retirement allowance [see Retirement and Social Security Law §41.3.j].

Governor Paterson signs Executive Order on Record Keeping Procedures and Policies

Governor Paterson signs Executive Order on Record Keeping Procedures and Policies
Source: Office of the Governor

On December 14, 2010 Governor David A. Paterson issued an Executive Order addressing the development and implementation of a records management policy for the Executive Chamber, including an archives retention schedule.

The Governor signed the Executive Order, 9 NYCRR 7.42, following his veto of S.6846/A.9928.

The Executive Order requires that a retention schedule be promulgated and made public. The schedule categorizes documents prepared in the Executive Chamber and sets forth a period for their retention and ultimate disposition. All records of historic and governmental significance will be preserved, published and made publicly accessible.*

A member of the Executive Chamber Counsel's Office is designated as the Records Retention Officer and will be responsible for coordinating Executive Chamber record retention activities.

The Governor vetoed S.6846/A.9928, also known as the Archives Bill. In his veto message, the Governor acknowledged the sponsors' efforts, but noted that the bill did not provide adequate protection for valued, centuries old governmental privileges that are indispensable to ensure unfettered, candid advice. The Governor also said the bill would have imposed significant and costly burdens on the Executive Chamber and would tip the balance of power between the Legislature and Executive by allowing the former immediate access to executive records, without imposing any comparable transparency requirements upon itself.

* The Counsel to the Governor will negotiate an agreement for storage of the information, and the circumstances on which it would be made available to the public. Executive Chamber records created during the Paterson Administration will be donated to Cornell University.