Reassigning a teacher to non-teaching duties

Reassigning a teacher to non-teaching duties

Taylor v Hammondsport CSD, 267 AD2d 987

May a school district assign a teacher to perform non-teaching duties against his or her will? This was the issue raised by David C. Taylor, a tenured high school science teacher.

The Hammondsport Central School District had assigned Taylor to perform nonteaching duties after he was found guilty of a number of specifications set out in disciplinary charges filed against him pursuant to Section 3020-a of the Education Law.

The hearing officer found Taylor guilty of portions of two charges filed against him. The penalty imposed: a $1,000 fine. However, the hearing officer in setting the penalty to be imposed did not provide for any remedial action.*

Taylor objected to his reassignment to non-teaching duties, contending that the assignment to such duties constitutes the imposition of an additional penalty or remedial action in violation of Education Law Section 3020-a. He challenged his reassignment, demanding that he be reinstated to his former teaching assignment and compensated for emotional distress he has endured as the result of district’s assigning him to nonteaching duties.

A State Supreme Court judge dismissed Taylor’s petition on the ground that he did not have any “clear legal right to the relief sought against [district], and therefore [an order in the nature of] mandamus* was not available to him as a remedy.”

The Appellate Division agreed with the lower court, pointing out that Section 3020-a “neither limits the authority of [the district] to assign [Taylor] to nonteaching duties nor requires [the district] to restore [Taylor] to his teaching duties following the completion of disciplinary procedures conducted pursuant to the statute.”

Addressing a procedural issue, the Appellate Division ruled that Taylor was required to give the district a notice of claim as required by Section 3813(1) of the Education Law prior to his commencing litigation.

The court said that in this instance complying with Section 3813 (1) was a statutory condition precedent to bringing an action or proceeding against the district because Taylor was attempting to vindicate his private rights. Accordingly, he was not exempt from the notice of claim requirement set out in the Education Law as might be the case were he attempting to vindicate a public interest in contrast to a personal one.

* Education Law Section 3020-a.4, in pertinent part, provides: …. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.

** Latin for "we order." Mandamus is one of a number of ancient “writs.” In modern legal practice it describes a court order directing a governmental entity [or official] to perform an act required by law when it has neglected or refused to do.
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Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify

Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify
In the Matter of Saderia Burke v Nassau Health Care Corporation, 2011 NY Slip Op 02887, Appellate Division, Second Department

This decision addressed two proceedings involving Saderia Burke’s arbitration award. Burke, a member of the Civil Service Employees Association, Inc.

In the course of a disciplinary proceeding Burke and the Nassau Health Care Corporation entered into a "Consent Award" that was "so-ordered" by the arbitrator. The Award provided that Burke would be terminated if she committed certain disciplinary infractions within an agreed period.

Subsequently Health Care served a “notice of termination” on Burke after she allegedly committed “certain infractions.” CSEA filed another grievance and demand for arbitration.

After this second hearing, the arbitrator found that Burke, indeed, had committed infractions that would result in termination in accordance with the Consent Award. The arbitrator, however, issued an award imposing a penalty of suspension rather than termination.

Health Care filed an Article 75 petition seeking to vacate the award while CSEA filed an Article 75 petition seeking to confirm the award.

Supreme Court denied Health Care’s petition, granting so much of the arbitration award as imposed a penalty of suspension without pay on Burke.

The Appellate Division reversed the Supreme Court’s decision, and vacated the penalty of suspension without pay awarded by the arbitrator, explaining that courts may vacate an arbitration award if the award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Matter of Falzone, 15 NY3d 530.

An arbitrator, said the court, may properly modify a prior arbitration award only to:

1. Correct a miscalculation or mistaken description in the prior award:

2. To correct so much of the prior award as was rendered on a matter not submitted to the arbitrator and which can be corrected without affecting the merits of the decision; or

3. To correct a prior award that is "imperfect in a matter of form."

In this instance the Appellate Division found that the arbitrator had exceeded his authority by determining an issue “not submitted to him.” Further, he ruled on an issue had been resolved via a “consent award” in a prior arbitration involving Burke, the penalty to be imposed for any other “certain” disciplinary infraction.

In view of this, ruled the Appellate Division, Supreme Court should have modified so much of the arbitrator's award as imposed a penalty of suspension without pay and reinstated the penalty of termination.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02887.htm

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Termination of employment recommended as the penalty for failure to follow proper procedure in safeguarding the property of an agency client

Termination of employment recommended as the penalty for failure to follow proper procedure in safeguarding the property of an agency client

NYC Human Resources v Townsend, OATH Index #1325/11

A NYC Human Resources Administration client was arrested and Marvin Townsend, a supervising special officer, was assigned to process the arrest.

The client had a jacket with a Portable Sony Playstation (PSP) and wallet, in the pocket.

Townsend told the client he would not voucher the property and that she could get it from his office on the next day.

When the client retrieved the jacket, the PSP and wallet were missing. The PSP was subsequently returned to the client but the wallet was not.

ALJ Alessandra Zorgniotti found that the sergeant failed to follow vouchering procedures and attempted to cover up his actions and deceive the client. The Administrative Law Judge recommended that Townsend be terminated from his position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1325.pdf
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Temporary appointees not entitled to a pretermination due process hearing

Temporary appointees not entitled to a pretermination due process hearing

Sanni v NYS Office of Mental Health, USDC, EDNY, 2/15/2000

Frequently a public employee holding a temporary appointment will challenge his or her termination from the position claiming that he or she is entitled to a pretermination due process hearing. This was one of the issues considered by Federal District Court Judge Gleeson in the course of his deciding the Sanni case.

Thomas Sanni, then employed in a grade 27 project director position at Kings Park Psychiatric Center, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. Simultaneously, he was reinstated to his permanent grade 18 position and transferred to Queens Children Psychiatric Center.

Ultimately, arbitrator Howard A. Rubenstein found Sanni guilty of 11 of the 14 charges filed against him. Among the charges for which Sanni was found guilty were the following:

1. Improperly participating in and supporting the decision to employ the minister of [Sanni’s] church to exorcise a patient possessed by spirits;

2. Transporting a patient in his car when he did not hold a valid driver’s license;

3. Claiming overtime for work he did not perform;

4. Having his personal automobile repaired by Kingsboro and billing the facility for personal items he shipped overseas via international Federal Express; and

5. Lying under oath in the course of being interviewed concerning the charges.

The department accepted Rubenstein’s findings and his recommendation that Sanni be terminated. Sanni sued, contending that the Office of Mental Health’s disciplinary action against him (1) violated his civil rights, (2) constituted retaliation for his filing a Title VII complaint against it and (3) it terminated him from the grade 27 position in violation of Section 75.

As to Sanni’s due process claims, Judge Gleeson pointed out that a public employee who has a property interest or right in his or her position is entitled to a pretermination hearing before he or she may be removed from the position. By logical extension, said the court, an employee covered by Section 75 has a property interest in his or her civil service grade since one of the penalties that may be imposed under Section 75 is demotion in grade and title.

The problem with Sanni’s argument, however, was that temporary employees in New York have no property interest in their jobs. Accordingly, Judge Gleeson, citing the Appellate Division’s ruling in Jones v Westchester County, 644 NY2d 640, granted the State’s motion to summarily dismiss this branch of Sanni’s complaint.

Sanni’s civil rights and retaliation claims based on his demotion and transfer to another department facility survived, however.

This suggests that in such situations the State may attempt to have the case dismissed on the grounds that it immune from suit in federal court for alleged violations of Title VII in view of the rulings by the Supreme Court of the United States in Kimel v Board of Regents, 528 U.S. 62 and Alden v Maine, 527 U.S. 706, cases involving employees suing their state employer in federal court for alleged violations of, respectively, the Age Discrimination in Employment Act and the Fair Labor Standards Act.

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Civil Service Commission's refusal to extend an eligible list challenged

Civil Service Commission's refusal to extend an eligible list challenged

Matter of Kapetanos v City of New York,  37 AD3d 279

Christopher Kapetanos challenged the New York City Civil Service Commission’s decision not to extend the duration of a 2000 eligible list for the civil service position of Associate Fraud Investigator. The decision notes that Kapetanos did not plead, even in conclusory fashion, that the restriction triggering the Commission’s ability to exercise its Civil Service Law Section 56.1 discretion to extend the eligible list was attributable to a financial emergency.

Section 56.1 addresses extending eligible lists in situations involving restriction against the filling of vacancies. It provides that:

The duration of an eligible list shall be fixed at not less than one nor more than four years; provided that, except for lists promulgated for police officer positions in jurisdictions other than the city of New York, in the event that a restriction against the filling of vacancies exists in any jurisdiction, the state civil service department or municipal commission having jurisdiction shall, in the discretion of the department or commission, extend the duration of any eligible list for a period equal to the length of such restriction against the filling of vacancies.

Restriction against the filling of vacancies shall mean any policy, whether by executive order or otherwise, which, because of a financial emergency, prevents or limits the filling of vacancies in a title for which a list has been promulgated. An eligible list that has been in existence for one year or more shall terminate upon the establishment of an appropriate new list, unless otherwise prescribed by the state civil service department or municipal commission having jurisdiction.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/extension-of-eligible-list.html

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Work related investigations

Work related investigations

Cerrone v Cahill, USDC, NDNY, 84 F. Supp. 2d 330

An investigation is being conducted by the appointing authority concerning alleged misconduct by an employee.

1. Do the same rules that apply when the appointing authority conducts an investigation involving alleged work-related misconduct control when the appointing authority is investigating alleged off-duty misconduct?

2. Is there any difference between an investigation by an appointing authority for the purpose of filing administrative disciplinary charges against an employee and its investigation directed towards bringing criminal charges against the individual?

As the Cerrone case demonstrates, if the focus of the investigation is criminal rather than administrative, different rules and safeguards control.

State Police Sergeant Thomas Cerrone filed a law suit in federal district court contending that his Fourth Amendment rights were violated in the course of his being investigated concerning “some sort of cover-up” related to his role in an investigation of a hit and run accident that occurred on April 3, 1993.

According to the decision, Cerrone reviewed and signed an accident report prepared by Trooper Robert Gregory that was alleged to be facially insufficient and contained false information. Sometime later, a letter signed by Ed Scott stating that Rory Knapp, the brother of State Trooper Timothy Knapp, left the scene of an accident on April 3, 1993 was received by the Division of State Police. Ed Scott denied writing the letter and the letter writer was never positively identified.

On January 19, 1995, Cerrone was stopped by investigators, placed in an unmarked police car and taken to a hotel for questioning about the hit and run incident.

Cerrone was given a Miranda warning and advised that he was the target of a criminal investigation. The investigators did not have a warrant for their action. After being questioned for six hours, Cerrone was permitted to leave when he agreed to take a polygraph test.

One of the recognized exceptions to the prohibition against warrant less searches and seizures is work-related investigations. Cerrone argued that in this case, the investigation was criminal rather than work related and thus he was entitled to the protections of the Fourth Amendment against unreasonable searches and seizures.

Noting that the procedures governing administrative investigations set out in the applicable Taylor Law agreement were not implemented in the course of Cerrone’s interrogation, Judge Thomas J. McAvoy agreed that the basic purpose of the investigation was criminal rather than administrative in nature.

The court said that the distinction between searches and seizures for the purpose of criminal prosecution and those undertaken for work related or administrative purposes is critical and many courts upholding a standard lower than probable cause [in work related investigations] have recognized that the lower standard is not appropriate in the criminal arena.

Thus, observed Judge McAvoy, if Cerrone was seized or arrested without probable cause, his Fourth Amendment rights were violated. The court also noted that the available evidence prior to Cerrone’s being questioned revealed little linking him, as opposed to other officers, to the alleged cover-up.

The decision sets out the following basic principles to be followed in investigation of employee misconduct:

1. Where a search or seizure is conducted by a government employer to further a criminal investigation, the traditional requirement of probable cause is necessary and the individual is protected by the Fourth Amendment.

2. Government employers cannot avoid the traditional Fourth Amendment safeguards applicable in the context of criminal investigations simply by labeling a criminal search work-related.

Law enforcement agencies may have greater difficulty here than other government employers. Typically, a non-law enforcement agency’s investigation of alleged misconduct looks towards filing administrative disciplinary charges against an individual. As the court ruled in Biehunik v Felicetta, 441 F.2d 228, Fourth Amendment rights do not apply in investigations of work-related misconduct.

In contrast, the very nature of investigations by law enforcement agencies of its personnel often tends to blur the line between administrative investigation for the purpose of initiating administrative disciplinary action and an investigation of the same or a related incident for the purpose of bring criminal charges against the individual. Accordingly, the distinctions identified by Judge McAvoy in the Cerrone case should be kept in mind when investigations into alleged employee misconduct are initiated by a law enforcement agency.

However, in Dombrowski v Safir, decided by the Appellate Division, First Department, 269 AD2d 161, the court upheld the termination of New York City police officer Kenneth J. Dombrowski as a result of his refusal to answer questions directly and narrowly relating to his official duties.

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New York State's Banking and Insurance Departments to be consolidated into a new Department of Financial Services effective October 3, 2011

New York State's Banking and Insurance Departments to be consolidated into a new Department of Financial Services effective October 3, 2011

Source: Bond, Schoeneck & King, PLPC

As part of the approval of the budget bill on March 31, Governor Andrew M. Cuomo signed into law Chapter 62 of the Laws of 2011 which consolidates the Banking Department and the Insurance Department into a new Department of Financial Services*.

BSK reports that:

“The new law consolidates the Banking and Insurance Departments to establish the Department of Financial Services, which will have a Banking Division and an Insurance Division.

"There will be a Superintendent of Financial Services appointed by the Governor, by and with the consent of the Senate, and who shall hold office at the pleasure of the Governor. The Superintendent of Financial Services is granted enforcement and regulatory authority over financial products and services. The Superintendent of Financial Services shall appoint a Deputy Superintendent who shall be the head of the Banking Division and a Deputy Superintendent who shall be the head of the Insurance Division.

"The Superintendent of Financial Services may remove at will any Deputy Superintendent, except as may be otherwise provided by the New York Civil Service Law.”

* Article V,  §2 of the State's Constitution provides that "There shall be not more than twenty civil departments in the state government, including those referred to in this constitution. The legislature may by law change the names of the departments referred to in this constitution." §3 of Article V of the Constitution provides that." Subject to the limitations contained in this constitution, the legislature may from time to time assign by law new powers and functions to departments, officers, boards, commissions or executive offices of the governor, and increase, modify or diminish their powers and functions. Nothing contained in this article shall prevent the legislature from creating temporary commissions for special purposes or executive offices of the governor and from reducing the number of departments as provided for in this article, by consolidation or otherwise."

Bond, Schoeneck & King’s report concerning this change is posted on the Internet at:

http://www.bsk.com/archives/detail.cfm?archive=publication&ID=1286
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Eligibility for General Municipal Law §207-a benefits and for Workers’ Compensation Benefits are not linked and are to be determined on their own merits

Eligibility for General Municipal Law §207-a benefits and for Workers’ Compensation Benefits are not linked and are to be determined on their own merits
Matter of Davidson v LaGrange Fire District, 2011 NY Slip Op 02666, Appellate Division, Second Department

Deborah A. Davidson filed and Article 78 action “in the nature of mandamus,” seeking an order to compel the LaGrange Fire District to make a final determination regarding her application for medical benefits under General Municipal Law §207-a.

Davidson has sustained an injury on a fire call and the Fire District awarded her salary benefits pursuant to General Municipal Law §207-a. However, Davidson had also asked for certain medical benefits related to her work-connected injury that had been denied by the New York State Insurance Fund, the Fire Districts workers' compensation insurance carrier.

An administrative law judge for the Workers’ Compensation Board had ruled that the State Insurance Fund was liable for the full cost of the Davidson’s surgery but the Fund had filed an application seeking a review by the Workers’ Compensation Appeals Board.

Before a decision was issued by the Board, Davidson filed her CPLR Article 78 petition. The petition, among other things, sought an order in the nature of mandamus, in effect, to compel the respondents to issue a final determination as to the her request for medical benefits under General Municipal Law §207-a.

Supreme Court denied Davidson’s petition ruling that it was premature as she had not exhausted her administrative remedies before the New York State Workers' Compensation Board concerning her claims. The Appellate Division reversed the lower court’s ruling.

The Appellate Division explained that in the event an officer or agency fails or refuses to conduct a hearing or decide a particular matter where there was a mandatory, nondiscretionary duty to do so, mandamus is appropriate to compel performance of the required duty.

Davidson argued that although the Fire District had made a determination that she is entitled to receive benefits under General Municipal Law §207-a, had not made a determination regarding coverage under General Municipal Law §207-a for her medical expenses.

As a determination by the WCB regarding workers' compensation benefits, and a determination by a municipal employer regarding statutory benefits pursuant to General Municipal Law §207-a, are separate and distinct matters, which the Court of Appeals had made clear in Matter of Balcerak v County of Nassau (94 NY2d 253), “[a] municipality's obligation to pay wages and medical costs under General Municipal Law §207-a or § 207-c is in no way dependent upon any determination made by the WCB.”

In the words of the Appellate Division, quoting Balcerak, "the eligibility determinations for these distinct types of statutory benefits" must "stand and be resolved essentially on their own merits."*

Here, any workers' compensation remedies that may have been available to Davidson were separate from and independent of her request that Fire District provide coverage for the full cost of medial expenses pursuant to General Municipal Law §207-a. Accordingly, said the court, she was not required to exhaust her administrative remedies in the workers' compensation proceeding before pursuing this CPLR Article 78 proceeding against the Fire District.

The matter was remanded to Supreme Court for further proceedings on Davidson’s petition, “and a new determination thereafter.”

* In Balcerak the Court of Appeals held that a determination by the WCB that an injury is work-related does not, by operation of collateral estoppel, automatically entitle an injured employee to benefits under General Municipal Law §207-c [which applies to law enforcement personnel], which ruling presumably would be controlling in a GML §207-a case [which applies to firefighting personnel].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02666.htm
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Where a collective bargaining agreement sets out a “board agreement to arbitrate,” the arbitrator, rather than the court, is to determine if the grievance is subject to arbitration

Where a collective bargaining agreement sets out a “board agreement to arbitrate,” the arbitrator, rather than the court, is to determine if the grievance is subject to arbitration

Matter of City of Binghamton v Binghamton Police Benevolent Assn., Inc., 2011 NY Slip Op 02109, Appellate Division, Third Department

When the Binghamton chief of police instituted new rules concerning the use of sick leave and subsequently counseled a police officer about an alleged pattern of suspected sick leave abuse and the need to provide a physician’s notes for all future sick leave absences, the Police Benevolent Association filed a grievance alleging a violation of the collective bargaining agreement between the Association and the City. In addition, the Association contended that the new policy constituted “departure from past practices.”

The grievance was denied by both the police chief and a representative of the mayor. The City, in response to the Association demand to submit the grievance to arbitration, filed a petition pursuant to Article 75 of the CPLR seeking a stay of arbitration. Supreme Court denied the petition and the City appealed.

The Appellate Division affirmed the Supreme Court’s determination, noting that the sole issue to be resolved was whether the parties to the CBA agreed to refer disputes in this specific area to arbitration.

In such situation, said the Appellate Division, courts "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

As the parties' broad agreement to arbitrate provided that "[a]ny grievance or dispute which may arise between the parties involving the application, meaning, or interpretation of this [a]greement," the Appellate Division ruled that the subject matter of the dispute bears a reasonable relationship to the articulated contract provisions and, therefore, it is for an arbitrator to decide in the first instance whether the precise scope of those provisions covers the issues presented in the Association’s grievance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02109.htm

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Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law

Department of Corrections v Johnson, OATH Index #1303/11

A New York City correction officer who tested positive for illegal drugs argued that the results were obtained in violation of her union and privacy rights. In essence, the officer challenged the legality of a second drug test administered to her after she tested positive in an earlier test on the grounds that the test violated the office’s right to union representation under §75 of the Civil Service Law and her right to be free from unreasonable searches under the Fourth Amendment.

OATH Administrative Law Judge John Spooner rejected the correction officer’s theory and found that the tests had been properly conducted.

Significantly, Judge Spooner found that the procedure did not involve questioning of the officer by a supervisor or anyone else. Rather Johnson was ordered by a captain to report to the toxicology unit and there was directed to provide a hair sample by a civilian staff member. Because the test did not involve questioning, no written notice of a right to union representation was required under Civil Service Law §75(2).

The ALJ recommended that Johnson’s employment be terminated.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1303.pdf

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