Tenure by estoppel

Tenure by estoppel
Young v Cashin, 275 AD2d 747, Motion for leave to appeal denied, 96 NY2d 706

A New York City Assistant School Principal, Joseph Young, was terminated from his position.

Contending that he had attained tenure by estoppel, Young sued, seeking a court order reinstating him to his former position. If effect, Young argued that as a tenured employee he could not be summarily terminated from his position.

The City, on the other hand, claimed that it had terminated Young while he was still a probationary employee and thus he never had attained tenure as an assistant principal. Accordingly, said the city, he was not entitled to any pretermination hearing. A State Supreme Court judge agreed with the City’s argument and dismissed Young’s petition.

The Appellate Division affirmed the lower court’s ruling, pointing out that tenure by estoppel may be acquired when a school board accepts the continued services of a probationary teacher or an administrator, and fails to take the action required by law to grant or deny tenure before the expiration of the probationary term.

The fatal omission in Young’s case, it appears, was that he failed, or was unable, to show that the City had accepted his services as an assistant principal -- i.e., he was continued in the position of assistant principal -- after his probationary term expired.

Termination during a probationary period

Termination during a probationary period
Scott v Workers’ Compensation Board, 275 AD2d 877

The Scott case demonstrates the general rule that an individual who has been permanently appointed to a position and who is required to serve a probationary period may be terminated without notice and hearing any time after he or she completes the minimum period and prior to the end of the maximum period of probation.

Michael Scott was permanently appointed as a compensation claims referee by the Workers’ Compensation Board. His appointment was subject to a probationary period ranging from 26 to 52 weeks. Prior to the completion of his probationary period, however, Scott was terminated for unsatisfactory job performance ratings in five out of seven applicable categories on his final probationary evaluation.

Scott challenged his dismissal, contending that his termination was arbitrary, capricious and motivated by bad faith. The Appellate Division sustained the dismissal of his petition, commenting that:

Absent proof that his discharge was for a constitutionally impermissible purpose, in violation of applicable law or made in bad faith, [Scott], a probationary employee, was subject to dismissal from his employment without explanation or a hearing.

Further, in the event there is a substantial question as to whether the discharge was due to reasons unrelated to work performance sufficient to justify a court considering such a petition, the individual bears the burden of proof and must present competent proof that the dismissal was motivated by an improper purpose or bad faith.


According to the ruling, Scott’s allegation of bad faith was defeated by the Board’s showing that it complied with its obligation to periodically advise Scott of his progress after observing his conduct and to ultimately provide him with a written probation evaluation at least two weeks prior to the completion of the probationary period, as well as written notice at least one week prior to the effective date of his discharge.

Further, the court ruled, more favorable progress reports that Scott received prior to the final unfavorable evaluation were not required to be furnished to him in writing and did not raise a sufficient factual issue as to the allegations of bad faith on the part of the Board.

On the merits of Scott’s allegations, the Appellate Division found that his termination was not motivated by bad faith on the basis of (1) his final probationary evaluation and (2) the affidavits submitted by the Board to the court indicating his inadequate understanding of the Workers’ Compensation Law, (3) his failure to respond to additional training to address this deficiency, (4) his improper conduct in requesting transportation from attorneys and (4) his posing inappropriate questions to a witness.

However, there may be other factors that could affect the rights of a probationary employee.

In Gordon v Town of Queensbury, 256 AD2d 784, the Appellate Division held that the probationary rules set out in a collective bargaining agreement trumped the probationary rules set in the regulations of the responsible civil service commission.

The court rejected Michael Gordon’s claim that his termination by the Town of Queensbury before he completed his probationary period was made in bad faith because the Town failed to give him the written pre-termination notice required by rules promulgated by the Warren County Civil Service Commission.

The court said that it was persuaded that the collective bargaining between Queensbury and Gordon’s collective bargaining representative, CSEA, governed the discipline and dismissal of probationary employees and therefore any alleged violation of the Warren County Commission’s rules by the town did not provide any basis for Gordon’s claim of bad faith.

In contrast to probationary periods flowing from appointment to a position, an individual may be given a disciplinary probation in connection with the resolution of a disciplinary action initiated pursuant to a collective bargaining agreement.

While such a probationary period may be general in nature, i.e., the individual is treated as a new employee for the purposes of probation, sometimes there are specific elements of conduct set out in the disciplinary award as to the terms and conditions of the probationary period. Such terms and conditions are controlling, as is demonstrated by in the Taylor ruling by the Appellate Division.

Taylor v Cass, 505 N.Y.S.2d 929, is an example of the impact of such terms and conditions set out in a disciplinary probation award and the limitations placed on the discretion of the appointing authority to terminated an individual serving a disciplinary probation. Taylor, a Suffolk County employee, won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed during his disciplinary probation period.

According to the ruling, under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was adversely affected by his intoxication on the job during the next six months.

Taylor, however, was subsequently terminated without a hearing for failing to give a fair day’s work and sleeping during scheduled working hours. Nothing was said as to his being intoxicated on the job with respect to his dismissal as a probationary employee.

Taylor sued, challenging his dismissal. He won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

Workers’ compensation leave

Workers’ compensation leave
Sanders v NYC Human Resources Administration, 275 AD2d 873

Lavern Sanders, a probationary employee, filed an application for workers’ compensation benefits. She also asked for a leave of absence, based upon a physician’s note directing her to cease working. Eventually her leave request was approved through September 1992.

On September 8, 1992, Human Resources sent Sanders a letter advising her that her leave of absence had expired on September 8, 1992 and that any absence subsequent to that date was unauthorized. Another letter advised her that the city had decided to controvert her workers’ compensation claim. In effect, the city said that it did not believe that Sanders had been injured while performing her duties.

According to the decision, Sanders never received these letters because they had been returned to the city as unclaimed “due to the failure to specify [Sanders’] complete address on the envelopes.” Finally, on December 2, 1992, Sanders found out that she had been terminated by the city.*

However, when Sanders learned that the city had controverted her claim for workers’ compensation benefits, she appealed to the Workers’ Compensation Board. Her complaint: she had been terminated as retaliation for her having filed a workers’ compensation claim. Terminating an individual because he or she had filed a workers’ compensation claim, she argued, violated Section 120 of the Workers’ Compensation Law.

As evidence of such retaliation, Sanders alleged that her employer began fabricating disciplinary charges against her immediately following her application for [workers’ compensation] benefits.

Ultimately the Workers’ Compensation Board decided that Sanders failed to sustain her burden of demonstrating a prima facie case of discrimination and dismissed her complaint. The Appellate Division affirmed the Board’s determination.

As to approving other leave for Sanders, the decision states that a union official’s testimony indicated that the city generally does not authorize leaves of absences for probationary employees and will terminate any such employee who is on unauthorized leave so that a replacement may be hired to fill the position. Presumably, the testimony concerning the city’s not authorizing leave in such cases refers to a leave without pay such as leave pursuant to Section 72 of the Civil Service Law.

While Section 71 leave must be approved for employees injured on the job in situations where the injury or disability does not permanently incapacitate the individual from performing the duties of the position, Section 72 authorizes the approval of leaves without pay in the event the individual’s disability is not work-connected.

* Presumably Sanders was not placed [or continued] on workers’ compensation leave as mandated by Section 71 of the Civil Service Law in view of the city’s controverting her claim that she had suffered a work-related injury.

Dismissal of charges in the course of a Section 75 disciplinary hearing

Dismissal of charges in the course of a Section 75 disciplinary hearing
Source: Reader's inquiry

From time to time, a reader will submit a question concerning a public personnel law issue. One recent question viewed as being of general interest to the readers of this BLOG:

"Where is the authority to dismiss administrative disciplinary charges during the hearing process found?"

NYPPL does not believe that a hearing officer has any authority to "dismiss" a Section 75 disciplinary charge or specification.*

Although the appointing authority may elect to "withdraw" a charge or specification, we know of no such authority being vested in a Section 75 hearing officer unless the appointing authority, itself, is serving as the hearing officer or body and so acts.

The authority of a hearing officer is limited in the context of a Section 75 disciplinary action. The hearing officer may either sustain some or all of the charges and specifications served on the employee or find that there was no substantial evidence to prove all or some of the charges and specifications so served.

As to the actual act of dismissing charges, as a practical matter the hearing officer would simply make findings to the effect that the appointing authority has not sustained its burden of proof and recommend that the charges be withdraw or dismissed, with or without prejudice, at the discretion of the hearing officer or find the employee "not guilty" of the charge[s].

As the doctrine of "double jeopardy" does not apply in administrative disciplinary actions, unless the appointing authority elects to dismiss the disciplinary charges "with prejudice," it may subsequently file charges based on the same event[s] on the employee.

* In contrast, an arbitrator or arbitration panel may grant a motion to dismiss charges and specifications where the final determination is to be made by the arbitrator or an arbitration panel as is the case in a disciplinary proceeding held pursuant to Education Law Section 3020-a. Any challenge to such action would be via an appeal pursuant to CPLR Article 75 by the appointing authority to vacate the award, in whole or in part.

Applying for disability retirement benefits

Applying for disability retirement benefits
Miata v McCall, 277 AD2d 590

Joseph Miata, a Long Island State Parks and Recreation Commission police officer, filed an application for performance of duty disability retirement benefits after he suffered an ankle injury as the result of his tripping while leaving work on August 24, 1995.

After conducting a hearing during which conflicting expert testimony was presented, McCall denied Miata’s application for benefits. Miata appealed, contending that the hearing officer’s decision was not supported by substantial evidence.

The Appellate Division, Third Department, dismissed the appeal. It viewed the testimony by Stuart Kandel, an orthopedic surgeon, that when he examined Miata he concluded that there were no objective abnormalities inasmuch as he noted no swelling, limping, instability nor restriction of motion in comparison to his right ankle to constitute the required substantial evidence.

While Kandel diagnosed Miata as having a sprained ankle and, in his opinion, not incapacitated from the performance of his duties, Miata’s expert testified to the contrary. Situations involving conflicting expert medical opinion present a credibility issue for McCall to resolve. The fact that the record could support a contrary conclusion did not require the court to vacate McCall’s determination.

Absence from an assigned post

Absence from an assigned post
Gamma v City of Newburgh, 277 AD2d 236

Absence from one’s post is a serious matter as former Newburgh police officer Stephen J. Gamma learned.

Gamma was found guilty of charges that he violated both supervisory instructions and the Rules and Regulations of the Department by leaving his duty post without the approval of a superior in his chain of command. As a result, Gamma was terminated.

In response to Gamma’s appeal, the Appellate Division decided that there was substantial evidence in the record to support the hearing officer’s findings. As to the penalty imposed, termination, the court said that [t]the penalty of dismissal was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The court said that a police force is a quasi-military organization demanding strict discipline and in matters involving police misconduct, great deference is to be accorded to determinations regarding the appropriate discipline of its members.

Seeking class action relief in arbitrations

Seeking class action relief in arbitrations
Correction Officers Benevolent Association v City of New York, 276 AD2d 394

May an arbitrator grant relief to a class of employees if but a single individual filed the grievance?

This was the critical issue before the Appellate Division, First Department when the Correction Officers Benevolent Association attempted to confirm an arbitration award interpreting a clause in the parties’ collective bargaining agreement between the Association and the City of New York providing for military leave with pay. The City filed a cross motion seeking to have the court rescind the award.

The Appellate Division confirmed the award, holding that the arbitrator did not exceed his authority in awarding class relief.

Why was this a class action? Because, said the court, the request for arbitration, jointly submitted by the parties, expressly framed the proceeding as a Class Action grievance due to the fact that numerous employees represented by the Association were subject to call for military duty and were therefore affected by the manner in which respondents applied the clause in the case of the individual who filed the grievance.

The opinion suggests that the City could have withdrawn the request for class relief, but never did so. Although the issue framed by the parties did not refer to the class aspect of the submission, the remedy sought was expressed in open-ended terms that did not limit the arbitrator’s power to grant any specific relief. As the arbitrator’s interpretation of the clause in dispute was not totally irrational, it was properly confirmed.

CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served

CSL §75 provides a right to an attorney at a disciplinary hearing but not in course of an investigation before disciplinary charges are served
Matter of Nygard v County of Warren, 2010 NY Slip Op 09060, decided on December 9, 2010, Appellate Division, Third Department

Thomas Nygard, a Warren County deputy sheriff, was served with disciplinary charges alleging seven acts of misconduct pursuant to §75 of the Civil Service Law. Such charges included alleged acts of misconduct that occurred while Nygard was “off-duty.”

Ultimately the §75 Hearing Officer found Nygard guilty of four of the charges. The Hearing Officer, considering the results in another recent disciplinary matter involving Nygard,* recommended termination as the penalty to be imposed by the appointing authority.

Nathan H. York, the Warren County Sheriff, Nathan H. York, found that the record supported sustaining one additional charge, for a total of five, and terminated Nygard from his position.

Nygard appealed, contending that his “statutory rights” had been violated because his request to adjourn an administrative investigation that ultimately lead to disciplinary charges being filed against him until he could have an attorney present was rejected. Accordingly, Nygard argued, “all information gleaned at the inquiry should have been excluded from the subsequent disciplinary proceeding.”

The Appellate Division disagreed, noting that Civil Service Law §75(2) establishes two different requirements for representation depending on the stage of the administrative disciplinary proceeding.

First, said the court, Subdivision 2 provides that during questioning of an employee who "appears to be a potential subject of disciplinary action," the employee has a right to have a union representative present. If the appointing authority fails or refuses to permit the individual to have his or her union representative present, Subdivision 2 states that the failure to afford this right to the employee bars the use of any statements made, or evidence derived, in the course of the initial questioning in the absence of such representation from being used in the disciplinary hearing.

However, noted the Appellate Division, there is a “second stage” in the disciplinary process addressed in §75(2) that expands the employee’s right to representation to include the right to representation by an attorney** once disciplinary charges have been filed against an individual and a scheduled hearing.

The Appellate Division ruled that in Nygard’s case, the administrative inquiry constituted a “stage one questioning” at which he had a union representative present. Accordingly, said the court, the relevant statutory requirement was satisfied and “the record reveals no violation of proper procedures.”

Nygard also contended that his off-duty conduct was improperly considered as a basis for disciplinary action. The court disposed of this argument by pointing out that “An employee may be disciplined for actions occurring while off-duty, citing Villanueva v Simpson, 69 NY2d 1034.

Finding that substantial evidence supported each of the five disciplinary charges sustained by the Sheriff, the Appellate Division rejected Nygard’s claim that dismissal was too harsh a penalty in this instance, finding that termination was not "so disproportionate as to be shocking to one's sense of fairness."***

Here, said the court, the penalty did not rise to that level given the nature of the charges sustained, “particularly when considered together with the fact" that only a few months earlier [Nygard] had been disciplined for a similar off-duty incident.

* 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.”

** §75(2) provides that in disciplinary hearing stage of the process, in contrast to investigatory stage of the procedure, the hearing officer shall “upon the request of the person against whom charges are preferred, permit him [or her] to be represented by counsel or by a representative of a recognized or certified employee organization….”

*** The so-called Pell Doctrine, Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09060.htm
.

Eligibility for unemployment insurance

Eligibility for unemployment insurance
Geracitano v Comm. of Labor, 277 AD2d 558

Barbara A. Geracitano served as a seasonal employee with the State Department of Parks and Recreation. She typically would apply for unemployment insurance benefits during her off-season.

Geracitano, however, also served as an elected councilperson and received a salary together with health benefits and the was eligible to participate in the New York State and Local Employees’ Retirement system.

Her application for unemployment benefits was disapproved after the Unemployment Insurance Appeals Board ruled that she was ineligible to receive such benefits because she was not totally unemployed during the time in question.

The Appellate Division sustained the Board’s decision, holding that substantial evidence supports the Board’s ruling.... The court pointed out that in the past it had ruled that a council person was not totally unemployed where the proof showed that he or she received an annual salary for his [or her] work as a council person, performed a variety of duties in that capacity and was subject to inquiries by his [or her] constituents, citing Matter of Silverstein, 236 AD2d 757.

Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged

Disciplinary decision based on evidence obtained using a Global Positioning Systems device challenged
Source: Item written by Justin Mason published in the Schenectady Gazette, Tuesday, December 7, 2010

An article appearing in the December 7, 2010 edition of the Schenectady Gazette reports that disciplinary action taken against a state worker, Michael Cunningham, by his employer, Department of Labor, involved evidence obtained by using a Global Positioning System [GPS] device. Ultimately Cunningham was terminated from his position.

New York Civil Liberties Union attorneys, claiming the use of evidence obtained using a GPS device without a warrant or the knowledge of Cunningham constituted an unlawful search, have filed a lawsuit seeking Cunningham’s reinstatement to his former position with back pay and fringe benefits.

The courts have considered a number of cases involving the use of evidence obtained through the use of global positioning system equipment.

In addition, PERB has considered the issue the employer installing global positioning equipment in agency vehicles in the context of collective bargaining.

In Civil Service Employees Association, Inc., Local 1000 and County Of Nassau, U-26816, the Administrative Law Judge dismissed a charge alleging that the County violated the Act by unilaterally deciding to utilize global positioning system (GPS) technology.

The ALJ said that PERB has long held that the determination of the type of equipment to be utilized by an employer does not give rise to a bargaining obligation and, accordingly, a balancing of interests test was not appropriate. Further, the ALJ found that CSEA’s arguments that employees' privacy rights were affected, that they had to participate in record keeping, and that there was an interference with off duty time were either inapplicable or had no factual basis.
[See, also, Civil Service Employees Association, Inc., Local 1000, and County of Nassau (Department Of Public Works), U-27544, 6/26/08].

However, the decision in the Weaver case, People v Weaver, 12 NY3d 433, may have an impact on the use of GPS equipment, or the evidence obtained from such devices, in administrative disciplinary hearings.

The Weaver decision indicates that “In the early morning hours of December 21, 2005, a State Police Investigator crept underneath Scott Weaver's street-parked van and placed a global positioning system (GPS) tracking device inside the bumper.*

The device remained in place for 65 days, constantly monitoring the position of the van. This nonstop surveillance was conducted without a warrant.”

Weaver was eventually charged with and tried in a single proceeding for crimes relating to two separate burglaries — one committed on July 2005 at the Latham Meat Market and the other on Christmas Eve of the same year at the Latham K-Mart. County Court denied Weaver's motion to suppress the GPS data, and the electronic surveillance evidence was introduced at the trial.

Ultimately the issue of the installation of a GPS device without a warrant was addressed by the Court of Appeal. In a four to three ruling, the court ruled that such an action, in this instance, was barred by New York State’s Constitution.

The Court noted that Article 1, §12 of New York State’s Constitution, in addition to tracking the language of the Fourth Amendment of the Constitution of the United States, provides:

The right of the people to be secure against unreasonable interception of telephone and telegraph communications shall not be violated, and ex parte orders or warrants shall issue only upon oath or affirmation that there is reasonable ground to believe that evidence of crime may be thus obtained, and identifying the particular means of communication, and particularly describing the person or persons whose communications are to be intercepted and the purpose thereof.

The Court of Appeals ruled that:

1. The residual privacy expectation Weaver retained in his vehicle, while perhaps small, was at least adequate to support his claim of a violation of his constitutional right to be free of unreasonable searches and seizures.

2. The massive invasion of privacy entailed by the prolonged use of the GPS device was inconsistent with even the slightest reasonable expectation of privacy.

The placement of the GPS device and the ensuing disclosure of Scott's movements over a 65-day period comes within no exception to the warrant requirement, and the although the prosecutor did not contend otherwise, the court found the argument that “no search occurred” untenable.

The court ruled that the warrantless use of a tracking device is inconsistent with the protections guaranteed by the New York State Constitution noting that technological advances have produced many valuable tools for law enforcement and, as the years go by, the technology available to aid in the detection of criminal conduct will only become more and more sophisticated. “

Without judicial oversight, the use of these powerful devices presents a significant and, to our minds, unacceptable risk of abuse. Under our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause.”

The Court of Appeals then said that Scott’s motion to suppress the evidence obtained from the GPS device should be granted and a new trial ordered.

This ruling suggests that employers should consider advising employees of the fact that GPS equipment is installed in official vehicles, cell phones and other employer-issued equipment and that the reports generated by such devices may be used to establish the location[s] of employees during their working hours.

In another disciplinary action, Joel I. Klein, then Chancellor of the New York City Department of Education, terminated John Halpin’s employment with the Department after finding Halpin guilty of having left work early on 63 occasions over a four-month period and of having submitted falsified time cards claiming that he worked on those occasions.

When Halpin challenged the Chancellor’s action, the Appellate Division said that the determination was supported by substantial evidence in the record, including global positioning software records, Halpin’s time cards, and eyewitness testimony establishing that Halpin was guilty of the disciplinary charges filed against him [Halpin v Klein, 62 AD3d 403].**

Citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, the court ruled that under the circumstances terminating Halpin did not constitute an “excessive penalty.”

Although in Halpin's case the GPS record was generated by his Department-issued cell phone, the installation of global positioning equipment in official vehicles is becoming common as well.

* GPS tracking devices are currently being offered for sale by a number of vendors at prices as low as $90 per unit.

** The administrative disciplinary action underlying the Chancellor's decision was heard by OATH Administrative Law Judge Tynia Richard. Richards found Halpin guilty of the charges filed against him and recommended that he be terminated from his position of Supervisor of Carpenters with the New York City Department of Education. [see New York City Department of Education v Halpin, OATH Index #818/07]. Richard's found that Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The ALJ ruled that the GPS data was accurate and reliable and that its use did not violate Halpin’s privacy rights under the United States Constitution.