Applying for disability retirement

Applying for disability retirement
Bowns v McCall, 263 AD2d 668
Vecchi v NY State and Local Employees’ Retirement System, 263 AD2d 669

In order to qualify for accidental disability retirement benefits, a member of the New York State Employees’ Retirement System [ERS] must prove:

1. That he or she was injured while at work; and

2. The injury was the result of an accident within the meaning of the Retirement and Social Security Law [RSSL], i.e., that the injury resulted from an “unexpected and sudden mischance” and not from a risk “inherent in the regular duties of the applicant.”

The first test is relatively simple to demonstrate; the second test -- that the injury resulted from an accident within the meaning of RSSL -- is substantially more difficult to prove.

To meet the second test the employee has the burden of presenting substantial evidence that his or her injury resulted from a “sudden or unexpected event” in contrast to being merely the result of physical exertion undertaken in the performance of his or her routine or regular employment duties.

In both the Bowns and Vecchi cases the Appellate Division sustained the Comptroller’s determination that for the purposes of qualifying for a RSSL disability retirement allowance, the disability suffered by these employees as a result of an on-the-job incident did not result from an accident within the meaning of the RSSL.

The Bowns case

Norman Bowns, a maintenance assistant employed by the State Office of Mental Retardation and Developmental Disabilities, filed an application for accidental disability retirement benefits claiming a disabling back injury he sustained while he and a co-worker were moving a heavy six-drawer file cabinet away from a wall. Bowns said that the cabinet became stuck and, when pushed, began to tip towards him and he had “catch the cabinet and support its weight in order to keep it from falling on him.”

This, Bowns argued, constituted an accident because “moving a file cabinet was unusual and unrelated to his normal work.” The court sustained the Comptroller’s finding that Bowns’ injury did not result from an accident because Bowns’ supervisor had specifically assigned him to perform this task and Bowns’ job duties included occasional assignments to perform manual labor jobs outside of his regular department.

The Vecchi decision

The Appellate Division also sustained the Comptroller’s rejection of Joanne Vecchi’s application for accidental disability retirement benefits. Vecchi, a school bus driver/cleaner, testified that she slipped on wet pavement following a rainstorm and although she attempted to balance herself, her foot caught on some gravel and she fell.

The court said that there was substantial evidence that Vecchi’s “injury occurred in the ordinary course of her duties and resulted from her own misstep, not from an unexpected event.” In other words, the mishap was not an accident for the purposes of qualifying for accidental disability retirement benefits.
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Impartiality of discipline panel members

Impartiality of discipline panel members
Informal Opinions of the Attorney General, 99-21

The impartiality of a disciplinary tribunal is a critical element in any disciplinary action. Further, even the appearance of any impropriety must be avoided. Would it be appropriate for an individual to serve on a disciplinary panel if there was a possibility that his or her son might be called as a witness in the proceeding?

David A. Menken, the Village Attorney, Village/Town of Mount Kisco, asked the Attorney General for his views with respect to such participation after the chief of police advised the board of trustees that disciplinary charges might be filed against one or more Mount Kisco police officers and the son of a trustee, who was a member of the police force, might be called as a witness.

The Attorney General commenced his analysis by noting that Section 5711-q(1) of the Unconsolidated Laws provides that such disciplinary charges must be heard by “at least a majority” of the Board of Trustees and that “even the appearance of impropriety should be avoided in order to maintain public confidence in government.”

The Attorney General concluded that the trustee should recuse herself because “the trustee may not be able to make an impartial judgment solely in the public interest if her son is called as a witness.” While state law does not bar members of the same family from serving in the same governmental unit, public officers have a responsibility to exercise their duties “solely in the public interest.”

The Attorney General said that the difficulty here was that “there was no objective way to verify” that the trustee was able to weigh the credibility of her son fairly and reached an impartial judgment. Under the circumstances, the Attorney General concluded, “there is at least an appearance of impropriety” and thus the trustee should recuse herself and “should not participate in or be present at the hearing, any deliberations, including deliberations conducted during an executive session of the board of trustees, or the determination of the disciplinary proceeding brought by the Mount Kisco Police Department.”

The designation of panel members by the district and the employee should not be viewed as the selection of a partisan representative. Rather they are impartial, quasi-judicial officials.

This point was made in Syquia v Harpursville Central School District, 568 NY2d 263, an "old law" Section 3020-a case. In Syquia, the court observed that a school board and a teacher have a statutory right to select a panel member to serve on the three-member board.

However, the court rejected the argument advanced by the attorney for the Harpursville School District suggesting that "a Section 3020-a hearing is, and is intended to be, something other than a fully impartial fact finding hearing...." The court clearly stated that the panel members selected by the Board of Education and by the teacher are not advocates for the party respectively selecting them, with only the chair of the hearing panel intended to be impartial.

The court said that it was taking its opportunity in this case to dispel any such "misapprehension in educational circles, if such in fact exists." It is likely that the same rationale would be applied to the selection of panel members by employers and employees under the new law.

In contrast to the Syquia decision, the Appellate Division decided in Meehan v Nassau Community College, 243 A.D.2d 12,[motion for leave to appeal denied, 92 N.Y.2d 814] that "a party-designated arbitrator may in fact be 'partial'" and that by itself this is not grounds for vacating an arbitration award.*

The case involved Nassau County Community College's attempt to overturn two arbitration awards under Article 75. One member of a three-person arbitration panel selected by the parties had direct personal knowledge of the disputed facts underlying the grievances and that this arbitrator actually testified concerning these facts during the arbitration. The Appellate Division had no problem with a panel member testifying at the hearing, holding that "dual capacity of arbitrator and witness may serve as a basis for vacatur only if his behavior in this regard can be properly characterized as constituting 'corruption, fraud, or misconduct' (CPLR 7511[b][1][i])."

* Related cases involving the same parties and issues: Mehan v Nassau Community College, 251 A.D.2d 415; Mehan v Nassau Community College, 251 A.D.2d 416; and Mehan v Nassau Community College, 251 A.D.2d 417.
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Probationary employee discharged for misrepresenting location of residence at time of employment

Probationary employee discharged for misrepresenting location of residence at time of employment
Munich v Dept. of Public Safety, 262 AD2d 959

A State Supreme Court judge annulled the Lackawanna Department of Public Safety’s dismissal of probationary firefighter Steven J. Munich prior to his completing his probationary period.

The Appellate Division reversed the lower court’s ruling, pointing out that “[i]t is axiomatic that a probationary employee may be discharged without a hearing and without a statement of the reasons for doing so provided the dismissal was not for a constitutionally impermissible purpose or in violation of statutory or decisional law.”

Here, said the court, Munich’s “false representations ... concerning his residence at the time of his employment with the City” provided a sufficient basis for his termination.
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Substantial evidence supports finding employee was guilty of disciplinary charges filed against him

Substantial evidence supports finding emplyee was guilty of disciplinary charges filed against him
Matter of Drury v Village of N. Syracuse, 2010 NY Slip Op 06944, Decided on October 1, 2010, Appellate Division, Fourth Department

Phillip Druyry commenced an CPLR Article 78* proceeding in an effort to obtain a court order annulling the determination terminating his employment as Village of North Syracuse Code Enforcement Officer and Fire Marshall following a disciplinary hearing held pursuant to Civil Service Law §75.

The Appellate Division dismissed his appeal, commenting that the disciplinary determination was supported by “substantial evidence, i.e., ‘such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.’”

The court also concluded that, under the circumstances of this case, the penalty of termination of employment does not constitute an abuse of discretion as a matter of law because it is not " so disproportionate to the offense as to be shocking to one's sense of fairness,' " citing Matter of Kelly v Safir, 96 NY2d 32.

* Section 76 of the Civil Service Law provides alternative appeal procedures to challenge a Section 75 disciplinary determination: [1] Appeal to the Civil Service Commission having jurisdiction within 20 days of his or her receiving notice of the determination; or [2] A judicial appeal pursuant to Article 78 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06944.htm
NYPPL

Determining an educator’s seniority for the purposes of layoff and reinstatement from a preferred list

Determining an educator’s seniority for the purposes of layoff and reinstatement from a preferred list
Donna Marsico v Board of Education of the City School District of the City of Mount Vernon, Decisions of the Commissioner of Education, Decision #16,158

Donna Marsico was appointed to a probationary appointment as a teacher of business education, effective February 1, 1989. Her position was abolished in 1990 and her name was placed on a preferred list. Marsico was subsequently appointed as a business education teacher in the district, effective September 1, 1993 and was granted tenure, effective September 1, 1994.

On September 24, 2008, the board established a preferred eligibility list and Marisco was listed as the most senior business education teacher. Marsico was then told that her position was abolished for budgetary reasons effective October 3, 2008.

As the result of an “opinion letter” from the New York State United Teachers dated June 24, 2009, the board rescinded the September 24, 2008 seniority list and established a new seniority list with Concetta Fantini listed as the most senior business education teacher.

In September 2009, Fantini was reinstated from the reconstituted preferred list to a business education position with the district. When Marisco sued in Supreme Court, Westchester County, challenging Fantini’s appointment the court “issued a stay” on the proceeding to permit Marisco to appeal to the Commissioner.

In her appeal to the Commissioner Marisco claimed that she was “continuously employed as a tenured business education teacher from 1993 until her layoff in October 2008, rendering her the most senior business education teacher and eligible for the first recall from the preferred eligibility list.”

The school board, on the other hand, argued that Marisco “cannot claim seniority credit for years served in a non-tenure track position that does not require a teaching certificate. Therefore, such service is not “service in the system” as required under Education Law §2510(3) for purposes of recall rights.”

The Commissioner found that, based Marisco employment record, she served as an adult education teacher in a distance-learning program from September 1, 1993 through the 2006-2007 school year. Accordingly, said the Commissioner, “Since none of the tenure areas prescribed in Subpart 30-1 of the Rules of the Board Regents relate to teachers of adult education and there is no teaching certificate required for such position, I find that [Marisco’s] service as an adult education teacher was in a non-tenure track position and cannot be considered for purposes of recall rights,” citing Appeal of Thomas, Commissioner’s Decision #13,275.

Further, said the Commissioner, “It is well settled that for purposes of determining the recall rights of teachers on a preferred eligibility list, length of service in the system is used, not length of service within a particular tenure area,” citing Mahony v. Bd. of Educ. of Mahopac Cent. School Dist., 140 AD2d 33, appeal denied 73 NY2d 703.

As to what is considered “length of service in the system,” the Commissioner concluded that the phrase “length of service in the system” means length of service as a professional educator as defined in §30-1.1 of the Commissioner’s regulations.

Accordingly, said the Commissioner, Marisco’s service from September 1, 1993 until the 2006-2007 school year was not in a tenure-bearing position and, therefore, cannot be counted as “service in the system” for purposes of recall rights under Education Law §2510(3).

However, the Commissioner said that although he was “constrained to dismiss this appeal,” he noted that “the board lacked the authority to grant [Marisco] tenure in the business education tenure area for her service as an adult education teacher” and said that the board must follow “all pertinent provisions of the Civil Service Law, Education Law §2510 and Part 30 of Rules of the Board of Regents” in this regard.

NYPPL Comments: §80 of the Civil Service Law, which applies to individuals in the competitive class, provides, in pertinent part, that layoffs "shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs.”

In contrast to “service in the system” within the meaning of §30-1.1 of the Commissioner’s Regulations, for the purposes of §80 of the Civil Service Law, once having attained permanent status an employee’s “seniority” is not truncated should he or she subsequently be appointed as a provisional employee or temporary employee or to a position in the exempt, noncompetitive or labor class or to a position in the unclassified service.

In the words of the statute, “A period of employment on a temporary or provisional basis, or in the unclassified service, immediately preceded and followed by permanent service in the classified service, shall not constitute an interruption of continuous service for the purposes of this section; nor shall a period of leave of absence without pay pursuant to law or the rules of the civil service commission having jurisdiction, or any period during which an employee is suspended from his position pursuant to this section, constitute an interruption of continuous service for the purposes of this section.”

Further, seniority is measured from the individual’s effective date of initial, uninterrupted, permanent appointment and not from the date he or she attained tenure in such position.

§80.2 of the Civil Service Law measures “continuous service” from the individual’s date of his or her first appointment on a permanent basis in the classified service followed by continuous service in the classified service on a permanent basis up to the time of the abolition or reduction of the competitive class position. Further, an employee who has resigned and who has been reinstated or reappointed in the service within one year thereafter shall, for the purposes of such section, be deemed to have continuous service.

§80-a of the Civil Service Law, which applies to employees of the State as an employer, provides similar protection for those State employees serving in a position in the non-competitive class.

The decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16158.htm

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If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
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NYPPL

School boards action in an executive session appointing an interim school superintendent held to have violated the State’s Open Meetings Law

School boards action in an executive session appointing an interim school superintendent held to have violated the State’s Open Meetings Law
Matter of Zehner v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51709(U), Decided on October 1, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports]

David Zehner sued the Board of Education of the Jordan-Elbridge Central School District [and others] alleging that it had violated the Open Meetings Law when it appointed Sue Gorton as its Interim Superintendent during an Executive Session of the Board.

The Board subsequently issued a “public information bulletin” to the school community, stating that "[t]he Board has decided to appoint as Interim Superintendent, Ms. Sue Gorton effective November 1, 2010." This was done, said the Board, in order to ensure a seamless transition and Ms. Gorton was to begin working during the summer of 2010 on District-wide matters with Mrs. Marilyn Dominick. Mrs. Dominick, the current superintendent, was scheduled to retire effective November 1, 2010.

Zehner attorney wrote to the Board contending that the appointment of Gorton was in violation of the Open Meetings Law and that it was not properly noticed on the meeting agenda or discussed in open session. The Board did not response.

Failing to receive a response from the Board, Zehner sued, seeking a court order declaring that the Board's actions to appoint Gorton as Interim Superintendent while in Executive Session violated the Open Meetings Law and is therefore null and void for a number of reasons including “there is no statutory basis for the Board's action purporting to appoint an employee to the position of Interim Superintendent without a public vote or discussion and that the action….”

Although the Education Law §1708.3 provides that meetings of the board of education must be open to the public, it also permits a board to hold Executive Sessions, at which sessions only the members of such boards or the persons invited shall be present.

Judge Greenwood said that “The procedure and substance of those [executive] sessions is subject to the limitations of the Open Meetings Law,” citing Previdi v. Hirsh, 138 Misc 2d 436.

Judge Greenwood concluded that the Board violated the Open Meetings Law in number of ways, including failing “to give a sufficient reason for adjourning to Executive Session.” The court said that the Board was required to be specific in its resolution to go into executive session and its failure to do so constituted a violation of the Open Meetings Law.

The court also faulted the Board for discussing the issue of the "superintendent search" in Executive Session as there “is no exception for this type of discussion in the Open Meetings Law to take place in Executive Session.”

Further, the court held that the Board violated the Open Meetings Law by appointing Gorton as Interim Superintendent.

In the words of the court, “The act of discussing and coming to a consensus in Executive Session, but not passing a formal resolution, does not shield the Board from a violation of the law.” Rather, the Open Meetings Law was designed to “assure the public's right to be informed and it is the entire decision making process which the Legislature intended to affect by the statute, not only formal acts of voting or formal executions of documents.”

Judge Greenwood concluded that the Board members participated in a private meeting with a quorum of Board members present, where topics for discussion and eventual decision are such as would otherwise arise at a regular meeting occurred and in so doing the Board has violated the Open Meetings Law.

Finding that the Board’s appointing Gorton as Interim Superintendent violated the Open Meetings Law, Judge Greenwood declared its action void but denied Zehner motion seeking costs and reasonable attorney's fees pursuant to Public Officers Law §107(2).

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51709.htm
NYPPL

Considering an employee’s personnel record in a disciplinary action

Considering an employee’s personnel record in a disciplinary action
Source: 2001 No. 2 Pub. Emp. L. Notes 27

On October 1, 2010, NYPPL posted a summary of the decision in Matter of Board of Educ. of the Dundee Cent. School Dist. v Coleman, 2010 NY Slip Op 51684(U), decided October 1, 2010, Supreme Court, Yates County, Judge W. Patrick Falvey, which addressed the issue of employee conduct that was the subject of counseling memoranda serving as the basis for disciplinary charges subsequently served on the employee was posted at:

http://publicpersonnellaw.blogspot.com/2010/10/conduct-that-was-subject-of-counseling.html

A footnote in NYPPL’s summary indicated that the court had cited 2001 No. 2 Pub. Emp. L. Notes 27 among the authorities it considered in making its decision. However, this reference apparently is not easy to locate. Accordingly. it has been set out below for those interested.

Our subscribers raise interesting questions. For example, a subscriber recently asked if NYPER was aware of any court decisions concerning the introduction of an employee's employment history into the record during a disciplinary hearing?

According to the subscriber, the Section 75 hearing officer admitted the accused employee's performance evaluations during the proceeding at the request of the appointing authority, indicating that the evaluations would be considered in determining the penalty the hearing officer would recommend if he found the employee guilty of one or more of the disciplinary charges.

The question raises a number of issues, including the following:

1. May such records be introduced into the record at the disciplinary hearing?

2. If the employee is found guilty of charges unrelated to adverse material in his or her personnel record, may the records be used to determine the penalty to be imposed by the hearing officer? By the appointing authority?

3. If the employee is found guilty of charges related to an adverse comment in his or her personnel records should further consideration be barred on the grounds of "double jeopardy?"

Introducing the personnel record:

In Scott v Wetzler, 195 AD2d 905, the Appellate Division, Third Department rejected Scott's argument that he was denied due process because the Section 75 hearing officer allowed evidence concerning his performance evaluations to be introduced during the disciplinary hearing.

The court said that "such evidence was relevant to the determination of an appropriate penalty," noting that Scott was allowed an opportunity to rebut these records and to submit favorable material contained in his personnel file.

Considering the personnel record:

Having introduced the employee's personnel records, for what purpose(s) may they be used?

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

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

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

Is criticism discipline?

In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee's personnel file were not "disciplinary penalties" and thus could be placed there without having to first hold a disciplinary proceeding.

In other words, the appointing authority's placing correspondence critical of the employee's conduct or performance in his or her personnel file did not constitute discipline.

The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.

In contrast, alleged "constructive criticism" may not be used to frustrate an employee's right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.

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

Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.

What distinguishes lawful "constructive criticism" of an individual's performance by a supervisor and supervisory actions addressing an individual's performance that are disciplinary in nature? This could be a difficult question to resolve.

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

In the Fusco and Irving cases the Commissioner of Education found that "critical comment" exceeded the parameters circumscribing "lawful instruction" concerning unacceptable performance.

In Fusco's case, the Commissioner said that "contents of the memorandum" did not fall within the parameters of a "permissible evaluation" despite the school board's claim that the memorandum was "intended to encourage positive change" in Fusco's performance.

The Commissioner noted that it "contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."

In Irving's case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal.

The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law.

Double jeopardy

A "counseling memorandum" is placed in an individual's personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including or incorporating the events set out in the counseling memorandum as charges constitute "double jeopardy?"

No, according to the Court of Appeal's ruling in Patterson v Smith, 53 NY2d 98. In Patterson the court said that including charges concerning performance that were addressed in a counseling memorandum was not "double jeopardy."

The court explained that a "proper counseling memoranda" contains a warning and an admonition to comply with the expectations of the employer. It is not a form of punishment in and of itself.

Accordingly, case law indicates that giving the employee a counseling memorandum does not bar the employer from later filing disciplinary charges based on the same event.

Further, the memorandum may be introduced as evidence in the disciplinary hearing or for the purposes of determining the penalty to be imposed if the individual is found guilty. The employer, however, may not use the counseling memorandum or a performance evaluation to avoid initiating formal disciplinary action against an individual as the Fusco and Irving decisions by the Commissioner of Education demonstrate.
NYPPL

Employees must answer questions honestly in the course of an investigation involving job-related conduct

Employees must answer questions honestly in the course of an investigation involving job-related conduct
People v James, Court of Appeals, 93 NY2d 620

Section 106 of the Civil Service Law provides that it is a misdemeanor to obstruct the civil service rights of an individual. Cases involving violations of Section 106, however, are rarely encountered. Allegations of violating Section 106 and then committing perjury concerning events involving the preparation of a civil service examinations were factors in the James case.

Gordon, a New York City Transit Police officer, had been assigned to help draft a promotion examination for the New York City Transit Police Department. He set up a meeting at his home that James attended together with other potential examinees named Lebron, Tarquini and Gillians. Material concerning of the promotional examination was distributed, including questions that were ultimately included on the promotion test.

James and the others copied the materials distributed by Gordon and left with them after the meeting. One of the participants, Lebron, later gave photocopies of the test materials that she had copied, together with the tapes of her telephone conversation with Gordon, to the Department’s Internal Affairs Bureau.

The February 1991 promotion examination was invalidated, and a substitute examination was given on February 2, 1992. James, Tarquini and Gillians took the substitute examination and their rankings on the technical knowledge section of the test was determined to have dropped significantly below their performance on the 1991 test. James was called before the Grand Jury investigating the allegations of cheating on the test.

After being granted immunity, James testified that he had never been to Gordon’s home in 1990, that he had never been to Gordon’s home when Lebron was present and that he did not attend a study session at Gordon’s home on October 20, 1990. He was subsequently indicted on six counts of perjury based upon those sworn denials -- a grant of immunity does not afford a witness the right to commit perjury.*

The decision of the U.S. Supreme Court in La Chance v Erickson, 522 US 662, is instructive concerning such situations. Here the Court ruled unanimously that federal government agencies could mete out harsher discipline to employees who lie while being investigated for job-related conduct. Although only federal employees were involved, the ruling could influence cases involving state and local employees in similar situations.

Citing Bryson v. United States, 396 US 64, the Court said:

Our legal system provides methods for challenging the Government’s right to ask questions – lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood.

Thus, said the Court, “… we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.”

On another point, Chief Justice William H. Rehnquist wrote that if employees remain silent, citing the Fifth Amendment or some other reason, employers are free to take such silence into consideration and draw adverse inferences in discipline.

* Gordon was also indicted by a Grand Jury on two counts of official misconduct in violation of Penal Law Section 195.00 and four counts of obstructing civil service rights in violation of Civil Service Law Section 106. In March 1994, Gordon was convicted of both counts of official misconduct and three of the four counts of obstructing civil service rights.
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Court said dismissal too harsh a penalty after considering employee’s personnel file

Court said dismissal too harsh a penalty after considering employee’s personnel file
Schnaars v Copiague UFSD, 275 AD2d 462

Is dismissal too severe a penalty for a school employee who uses a school computer to find pornographic web sites? Yes, both a Supreme Court Judge and the Appellate Division ruled in the Schnaars case.

A student at Copiague High School turned on a school computer and was immediately confronted by a pornographic image. Schnaars, Copiague UFSD’s head custodian, took responsibility. Schnaars admitted that, with his subordinates, he accessed pornographic web sites during two night shift tours of duty.

The district filed disciplinary charges against him, alleging that he had used the district’s computers without authorization and neglected his duty. The hearing officer found Schnaars guilty of the charges and recommended that he be demoted to a lower grade position.

Although the board adopted the hearing officer’s findings as to guilt, it rejected the penalty recommended by the hearing officer and voted to terminate Schnaars instead.*

Schnaars sued, contending that board’s rejection of the hearing officer’s recommendation as to the penalty to be imposed was arbitrary, capricious, an abuse of discretion, and disproportionate to the offense for which he was found guilty.

New York State Supreme Court Judge Marquette L. Floyd of Suffolk County said that where the finding of guilt is confirmed and punishment has been imposed, the test is whether such punishment is “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness,” citing the so-called Pell Standard [Pell v Board of Education, 34 NY2d 222]. Although courts rarely find that an administrative penalty violates the Pell Standard, in this instance Judge Floyd decided that dismissing Schnaars was a shockingly disproportionate penalty.

The Appellate Division affirmed the lower court’s ruling, commenting that Schnaars’ actions did not involve “moral turpitude, gross injury to the agency involved or [gross injury] to the public weal.”

Noting that “access to the school’s computers can be curtailed through adequate passwords and by ‘filtering’ software, which may also be complicated by First Amendment issues,” the Appellate Division said that although it “does not condone [Schnaars’] individual or supervisory behavior, his termination is so disproportionate to the facts that it may not be permitted to stand.”

What are some of the factors that should be considered in settling a disciplinary penalty? The Appellate Division said that where there is no “grave moral turpitude” and no grave injury to the agency or to the public weal,” the following should be considered:

1. The length of employment of the employee;

2. The probability that a dismissal may leave the employee without any alternative livelihood;

3. The employee’s loss of retirement benefits; and

4. The impact upon his innocent family.

In contrast, the court said that no such consideration of “mitigating circumstances” is required in situations involving such actions as a “deliberate, planned, unmitigated larceny, or bribe taking, or [a] demonstrated lack of qualification for the assigned job.”

The decision observed that Schnaars “candidly acknowledged his violation of District policy and sought to correct [the] same by informing his subordinates that ‘this has got to stop.’” Another consideration, said the court, was Schnaars “otherwise 13 year unblemished record with the District with many letters of recommendation and accolades that exhibit faithful and loyal service.”

What penalty would be appropriate in this case? The court said that the district should reinstate Schnaars to his position as Head Custodian with back salary and then impose “an appropriate penalty” suggesting either “demotion and/or suspension without pay for a reasonable period, said period not to exceed ninety (90) days.”

The Appellate Division also said that the district “shall be entitled to a credit of any of [Schnaars’] earned income from the time of his termination to the date of reinstatement.”

However, Civil Service Law Section 77 -- compensation of officers and employees reinstated by court order -- currently authorizes such adjustment only for “unemployment insurance benefits.” In 1985, Section 77 was amended to eliminate the clause allowing adjustments for “compensation which [the individual] may have earned in any other employment or occupation...” [Chapter 851, Laws of 1985].

On another area of concern: the decision sets out the penalty that the court said could be imposed: demotion and/or suspension without pay not to exceed ninety days.

This suggests that the district could demote Schnaars or it could suspend him without pay or it could impose both penalties. Courts, however, have ruled that only one of the several penalties set out in Section 75 may be imposed on an individual found guilty of Section 75 disciplinary charges -- the imposition of multiple penalties is not authorized. In other words, cumulative penalties are not permitted in such cases.

In Matteson v City of Oswego, 588 NYS2d 472, the Appellate Division overturned the penalties imposed by the appointing authority and remanded the matter for the imposition of a new, appropriate penalty.

Oswego had imposed the following penalties on Matteson: (1) suspension without pay for 30 days; and (2) demotion to a lower grade position; and (3) restitution of $3,699.48.

The Appellate Division held that the penalty meted out was contrary to law in that "the imposition of multiple penalties was improper" under 75.3 of the Civil Service Law.

In contrast, in cases involving the imposition of a penalty by an arbitrator pursuant to a "contract disciplinary procedure" the courts have held that the only limitations on the penalty to be imposed is the sound judgment of the arbitrator. Rarely are arbitrators limited as to the penalties or combination of penalties they can assign.

* Demotion or termination are among the penalties an appointing authority may impose on an employee found guilty of misconduct or incompetence pursuant to Section 75.
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Communications between department’s attorney and agency employees privileged

Communications between department’s attorney and agency employees privileged
Coleman v City of New York, NYS Supreme Court, Judge Peck, [Not selected for publication in the Official Reports]

In the private sector, conversations between an attorney and his or her client are private and cannot be disclosed without the client’s permission. If the employer is an entity such as the New York City Department of Health, and different employees speak with the department’s attorney, are such conversations privileged?

In the Coleman case, a state Supreme Court Justice ruled that the answer is yes.

State Supreme Court Judge George R. Peck said that the rules that applied in cases involving a private corporation were equally applicable to governmental employers. Just as the attorney-client privilege applies to confidential communications between a corporation and its attorneys, including communications between the corporation’s attorney and low-level corporate employees, the “Defendant City is a legal creation which acts through its employees, at all levels.”

Michael Coleman was terminated from his position at the Health Department in May 1998 as a result of having been prosecuted for taking bribes. Coleman denied taking any bribes and sued the city. His complaint alleged false arrest, malicious prosecution and related charges.

Coleman’s attorney attempted to depose a number of city employees concerning communications they had with an Assistant Corporation Counsel [ACC] concerning the case. The ACC objected, contending that conversations were privileged.

The attorney-client privilege generally excuses an attorney from having to disclose the content of communications concerning actual or potential litigation between the attorney and his or her client unless the client waives the privilege. Further, the attorney-client privilege may be invoked only by the client, or by the attorney on behalf of the client. The client, of course, may elect to “waive” the privilege.

Coleman’s attorney claimed that there was no attorney-client privilege because the employees he sought to depose had not asked the ACC to represent them in this litigation.

State Supreme Court Judge Peck decided that the communications were, in fact, privileged and prohibited Colemen’s attorney from deposing the employees concerning their conversations or other communications with the ACC. According to the ruling, it did not make any difference whether the employee-witness asked the Corporation Counsel to represent him or not -- the communications were privileged.

Judge Peck held that just as attorneys for corporations and for individual clients, the defendant City must have the same opportunity for a privileged “open dialogue” by its attorney in preparing city employee-witnesses for trial. Otherwise, the city “would be at a disadvantage in preparing for trial as compared to other types of parties.”

In the Matter of Lindsey Grand Jury Testimony, 148 F.3d 1100, a U.S. Circuit Court of Appeals held that if a public official wishes to claim the attorney-client privilege in connection with discussions involving “official business” with an attorney, he or she should employ and consult with a private attorney instead of discussing the matter with a government employee-attorney.

Here the issue was whether the conversation between the President of the United States and a federal government employee-attorney serving as his counsel for the purpose of obtaining legal advice triggered the attorney-client privilege with respect to compelling the attorney to testify before a grand jury concerning his conversations with the President. The Circuit Court ruled that in this instance no attorney-client relationship was created.
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