State's "sovereign immunity" defense waived when State moved lawsuit commenced in state court to a federal district court

State's "sovereign immunity" defense waived when State moved lawsuit commenced in state court to a federal district court

Estes v Wyoming Department of Transportation, 302 F3d 1200

Connie Estes, a driver's license examiner employed by the Wyoming Department of Transportation [WDOT], sued WDOT in Wyoming State Court. Estes alleged that WDOT violated Title I of the American with Disabilities Act [ADA] and Wyoming's workers' compensation law and, in addition, was in "breach of contract," when it dismissed her from her position.

WDOT deliberately moved Estes' lawsuit to federal court. In so doing, WDOT specifically stated that it was not waiving any of its rights to raise constitutional challenges to the district court's jurisdiction of it. In other words, WDOT attempted to move the case to federal district court while retaining it right to claim sovereign immunity under the Eleventh Amendment in that proceeding.

When WDOT later filed a motion for judgment, arguing the district court lacked jurisdiction because WDOT was entitled to sovereign immunity, it learned that its disclaimers in its earlier effort to "retain it sovereign immunity" notwithstanding its voluntarily moving the case to the federal court were ineffective.*

The Circuit Court, affirming the district court's decision, ruled that WDOT had waived its sovereign immunity with respect to Estes' ADA claim even if the only reason it removed the case to federal court was simply "to challenge the federal court's jurisdiction of the federal forum."

In contrast, the Circuit Court said that its holding with respect to WDOT in Estes' case does not affect the ability of a state to raise sovereign immunity when it is involuntarily brought into federal court and then raises an Eleventh Amendment defense. In the words of the Circuit Court:

It is only when a state removes a federal-law claim from state court to federal court that it "submits its rights for judicial determination" and unequivocally invokes the jurisdiction of the federal courts.

Accordingly, when WDOT removed the Estes case from state court to federal court, it "unambiguously invoked the jurisdiction of the federal court,” and thus waived any claim it might otherwise have to sovereign immunity under the Eleventh Amendment.

* WDOT also argued that Estes failed to exhaust state administrative remedies for her breach-of-contract claim.

Drafting disciplinary charges

Drafting disciplinary charges

Fella v County of Rockland, 297 AD2d 813

How important is it to draft disciplinary charges properly? According to the Appellate Division, even in situations where discipline may be warranted, the failure to word the charges and specifications properly may be fatal to the employer's attempt to discipline an employee.

Peter Fella, Rockland County's Commissioner of Hospitals, was suspended for 30 days without pay for allegedly violating the County's Equal Employment Opportunity Policy [EEOP].

According to the court's decision, following an investigation, the Rockland County Director of Employee Rights and Equity Compliance [Director] concluded that Fella had created a hostile work environment by promoting a person with whom he was then having a romantic relationship to a vacant assistant director of nursing position.

The Director held that the Commissioner's action violated the County's EEOP based on a finding that some employees said that they felt uncomfortable at work because Fella had this "romantic relationship" with a co-employee. This, according to the Director, created a hostile work environment and, as such, violated the EEOP. The County Executive adopted the Director's findings and suspended Fella for having created a hostile work environment in violation of the EEOP.

In its decision, the Appellate Division noted that the County's EEOP defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which `had the purpose or affect [sic] of unreasonably interfering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment.'" Citing DeCinto v Westchester County Medical Center, 807 F2d 304, the court explained that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship."

The Supreme Court judge commented that while Fella's decision to promote an individual with whom he was having a romantic relationship may constitute poor judgment, it did not constitute a violation of the County's EEOP - the alleged basis for bring the disciplinary action. As the County failed to establish any violation of its EEOP, the Supreme Court annulled the determination of the Rockland County Executive. The Appellate Division affirmed the ruling.

Of particular interest is the Supreme Court's noting that Fella's actions may have served as a basis for discipline, albeit based on other theories of alleged misconduct. While the Court concluded there was no violation of the EEOP and thus the County could not sustain the charges it filed against Fella, the decision suggests that Fella's behavior might constitute a legitimate basis for subjecting him to disciplinary action based on other specifications.

In other words, it is possible that had the County charged Fella with misconduct based on specifications other than violating the EEOP, the court might have allowed its disciplinary action against Fella to survive.

What might constitute such a charge and specification? Perhaps charging Fella with misconduct based on his alleged selection of a person for appointment to a position in the public service solely because of a personal relationship rather than making the selection on the basis of the Constitution's mandate that selection for appointment to the public service be based on "merit and fitness."

What lesson can be learned from Fella? While the charges and specifications filed against an employee should clearly apprise the individual the alleged "misconduct or incompetence" giving rise to the charge, the specifications should constitute acts or omissions that, if proven to have occurred, would support a finding that the employee was guilty of misconduct or incompetence. In any event, the employer should be certain that it is able to prove the allegations, whatever they may be, before initiating disciplinary action.

On the opposite end of the spectrum, where a disciplinary action has been "settled" and the penalty imposed includes placing the individual in "disciplinary probation status," the employer must make certain that in the event the employee is dismissed during this disciplinary probation period, the dismissal is based on the individual's failure to meet the specific requirements set out in the settlement agreement.

Perhaps the leading case illustrating this principle is Taylor v Cass, 505 NYS2d 929. Taylor, a Suffolk County employee won reinstatement with full back salary and benefits as a result of a court finding that he was improperly dismissed while serving his disciplinary probation.

It seems that under the terms and conditions of the six-month disciplinary probation period to which the parties had agreed, the County could terminate Taylor without any hearing if, in the opinion of his superior, Taylor's job performance was adversely affected by his being intoxicated while at work during his disciplinary probation period.

Taylor, while serving this probationary period, was terminated without a hearing for "failing to give a fair day's work" and "sleeping during scheduled working hours." The Appellate Division decided that Taylor's dismissal was improper because Taylor was not terminated for the sole reason specified in the disciplinary settlement: intoxication on the job.

Comptroller's audit focuses on school district's payroll and overtime practices

Comptroller's audit focuses on school district's payroll and overtime practices

Source: Office of the State Comptroller, Division of Local Government and School Accountability

The State Comptroller’s Division of Local Government and School Accountability audit report of the Webster Central School District explains that the thrust of its auditing of the District “… is to help school district officials manage their districts efficiently and effectively and, by so doing, provide accountability for tax dollars spent to support district operations.”

The focus of this audit was “to determine if District officials have established adequate controls over payroll and overtime pay to effectively protect District assets from loss or misuse for the period July 1, 2008 to November 16, 2010” and addressed the following related questions:

• Has the District established and implemented adequate internal controls to ensure that only appropriate and supported payroll payments are made?

• Has the District established and implemented adequate internal controls to effectively manage overtime, control costs and safeguard District assets?

Among the recommendations made:

1. The District should restructure its payroll process to avoid making any salary payments to employees in advance of services being rendered, in compliance with Education Law, State Education Department regulations and internal control best practices.

2. The District should ensure that it complies with all legal requirements when hiring retired public employees.

The Division’s report of its findings and recommendations are posted on the Internet at:

www.osc.state.ny.us/localgov/audits/schools/2011/webster.pdf

Administrative Law Judge recommends termination of employee found guilty of misconduct unrelated to official duties

Administrative Law Judge recommends termination of employee found guilty of misconduct unrelated to official duties

NYC Department of Sanitation v Ragone, OATH Index #1970/11

Pursuant to Mayoral Executive Order No. 16, the Department of Sanitation sought to terminate the employment of a worker who had been convicted of petit larceny.

The Order provides for the dismissal of any City employee convicted of a crime relating to their employment, which crime involves moral turpitude or bears upon their fitness to perform their duties.

OATH Administrative Law Judge Ingrid M. Addison found that Andrew Ragone had obtained a pension loan from the City. After cashing the check, he filed a sworn affidavit that he had not received it. NYCERS issued two supplemental checks, both of which Ragone cashed.

Judge Addison found that although the crime was not committed on Department property and did not concern Ragone’s work-related duties, the theft related to his status as a City worker because through that status, he obtained the loan and subsequent checks.

In the absence of compelling mitigating factors, Judge Addison recommended that Ragone be terminated.

Judge Addison’s decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1970.pdf

Employer liability for employee’s off-duty conduct

Employer liability for employee’s off-duty conduct

Donahue v Young, 298 AD2d 354

What liability does a municipality have when one of its firefighters assists in extinguishing fire - but not while on duty? According to the Donahue ruling, if the employee is not acting in the performance of his or her official duties, the employer does not have any liability for his or her action.

Ken Young, a New York City Firefighter, was off-duty, pursing personal business, when he spotted a car on fire while on the Van Wyck Expressway. Young stopped to assist. Apparently, as a result of Young's attempt to provide assistance, Walter Donahue sustained an injury and sued the City for damages.

The City argued that because Young was not on duty at the time, the City could not be held liable for the injury Donahue suffered. The Appellate Division agreed, stating that since Young acted voluntarily, "the doctrine of respondeat superior does not apply here." It ruled that the City could not be held vicariously liable for Young's actions.*

Although public employers may discipline an employee for off-duty conduct that negatively impacts upon the reputation or good name of the employer, it does not necessarily follow that an employer is responsible for its employees’ actions while they are off duty.

* The doctrine of “respondeat superior” expresses the concept that the employer is responsible for the actions of its employees in connection with their work 

Errors of law made in the course of arbitration

Errors of law made in the course of arbitration

Goldman v Architectural Iron Co., CA2, 306 F.3d 1214

From time to time, an arbitration award is challenged on the ground that the arbitrator applied the law incorrectly or did not properly consider the applicable law in making the award. Typically, the courts do not vacate an arbitration award merely because a party demonstrates the award is based on an "error of law."

Rather, as the Circuit Court held in DiRussa v Dean Witter Reynolds, Inc., 121 F.3d 818, an arbitration award may be vacated only if it exhibits a "manifest disregard of the law." What constitutes "manifest disregard of the law?"

In deciding the Goldman case, the Second Circuit said that "[g]iven the deference afforded arbitration decisions, this standard requires more than a mistake of law or a clear error in fact finding.” According to the Second Circuit:

Manifest disregard [of the law] can be established only where a governing legal principle is "well defined, explicit, and clearly applicable to the case," and where the arbitrator ignored it after it was brought to the arbitrator's attention in a way that assures that the arbitrator knew its controlling nature.

The Circuit Court cited New York Telephone Company v Communications Workers of America Local 1100, 256 F.3d 89, as authority for its ruling

Establishing positions in the public service

Establishing positions in the public service

Charleson v City of Long Beach, 297 AD2d 777

Establishing a new classified service position in the public service of a municipality is typically a fairly routine operation: the civil service commission having jurisdiction reviews the municipality's application and then classifies the position based on its duties as described in the application.*

Once classified, the appointing authority provides for its establishment in accordance with the controlling budgetary procedures.

The Charleson case concerned a variation of this: the establishment of a municipal position claimed to be a "public office." However, although public officers are public employees, not all public employees are public officers.

Carl R. Charleson and his co-plaintiffs filed a "taxpayers' action pursuant to General Municipal Law Section 51." They sought a court order declaring the positions of Director of Operations, Special Projects Manager, and Executive Assistant to the Director of Operations established in the City of Long Beach unlawfully established public offices. The three positions were included in budgets approved by the City Council.

Charleson contended that all three positions had been unlawfully created and thus the appointments of the incumbents, Eugene C. Cammarato, Robert Piazza, and Michelle Meiselman, respectively, to those positions were illegal. According to Charleson, "given the nature of the positions at issue, including the powers, duties, and authority thereunder, and the titles and salaries, the positions are de facto public or city offices that can only be lawfully created by legislative enactment" not merely by inclusion of such positions in a budget.

The Appellate Division's decision notes that "[t]he challenged positions ... are not among the lawfully created offices set forth in City Charter, Article 2, Section 11, which positions may be filled by appointment by the City Manager."

The City argued that the challenged positions were not de facto public or city offices and that the powers and authority exercised by the incumbents are not commensurate with those of public or city offices that may only be lawfully created by legislative enactment. Rather, said the City, the positions were "duly-created civil service positions that require no legislative action and that they were filled by the City Manager in a proper exercise of his general powers under the City Charter, rather than Article 2, Section 11 of the Charter."

After observing that Charleson’s and the City's arguments raised triable issues of fact, the court noted that aspects of the litigation was moot because "the disputed positions of Special Projects Manager and Executive Assistant to the Director of Operations no longer exist ... that Piazza and Meiselman have been reassigned to existing civil service positions, and that the position of Director of Operations has since been duly established as an appointive office by the City Council."

* A municipal position in the classified service is automatically in the competitive class unless placed in a different jurisdictional classification by law or by the State Civil Service Commission pursuant to the procedures set out in Section 20 of the Civil Service Law.

Public Employee Federation members to vote on new proposed collective bargaining agreement

Public Employee Federation members to vote on new proposed collective bargaining agreement

Sources: The Public Employees Federation; Office of the Governor

The Executive Board of the New York State Public Employees Federation (PEF) on October 17, 2011 voted to send a revised contract agreement with the State to the full union membership for ratification.

Ballots for ratification will be mailed immediately to union members. Votes must be returned by Thursday, November 3 for counting that day by the American Arbitration Association in Manhattan.
PEF President Ken Brynien said:

“Today’s vote gives hope to the 3,496 members who face losing their jobs if the contract is not approved. The revised agreement balances the needs of all of our members and I am strongly encouraging our membership to ratify the new agreement to save the jobs of their co-workers while preserving the level of service to taxpayers"

In a press release dated October 16, 2011, Governor Cuomo said of this new, proposed agreement: "The Administration has worked very hard with the PEF leadership to make modifications which the leadership believes will address the concerns of the membership. The contract modifications are revenue neutral to the state and achieve the same level of savings as the first proposal.”

A summary of the key provisions of the tentative agreement is available on the Internet at:

http://www.pef.org/storage/files/hoa.pdf

The entire agreement, 229 pages of text, is posted on the Internet at:

http://www.pef.org/storage/files/tent_contract.pdf

Termination recommended after employee refused to answer job related questions after being granted “use immunity”

Termination recommended after employee refused to answer job related questions after being granted “use immunity”

New York City Department of Corrections v  Lasonde, OATH Index #2526/11

A New York City correction officer, Chandra Lasonde, was served with disciplinary charges pursuant to Civil Service Law §75 alleging that she engaged in misconduct when she refused to answer questions during an interview conducted under Mayor’s Executive Order Number 16 (MEO-16).

MEO-16 section 4(b) provides, in relevant part, that designated City officials may require any officer or employee of the City to answer questions concerning any matter related to the performance of his or her official duties … after first being advised that neither their statements nor any information or evidence derived therefrom will be used against them in a subsequent criminal prosecution other than for perjury or contempt arising from such testimony. The refusal of an officer or employee to answer questions on the condition described in this paragraph shall constitute cause for removal from office or employment or other appropriate penalty.

Lasonde denied engaging in misconduct and asserted that she had constitutionally protected rights not to answer questions that did not involve her official duties as a correction officer notwithstanding having been granted “use immunity” which meant that her statements could be used against her were she subsequently prosecuted for a crime. 

OATH Administrative Law Judge Alessandra F. Zorgniotti found that Lasonde had engaged in misconduct as charged and recommend that her employment be terminated for refusing to answer questions at an official interview.

During the investigation, claiming 5^th Amendment protection, the correction officer, refused to answer questions about her union activities dispite being granted “use immunity” which meant that her statements could be used were she to be prosecuted for a crime.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that Lasonde was clearly informed of her obligation to answer under Mayor’s Executive Order No. 16, and the consequences should she refuse to do so. Finding that Lasonde had no legitimate basis for refusing to answer questions after immunity was granted. The Administrative Law Judge  recommended that Lasonde be terminated from her position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2526.pdf

The issue of compelling a public officer or employee to testify or risk termination was considered by the Court of Appeals in Matt v LaRocca, 71 NY2d. In the Matt case the Court of Appeals held that when a public employee is threatened with termination if he or she refuses to testify under oath, the testimony given by the individual is "cloaked with with is terminated transactional or use immunity." Other cases addressing use immunity include Gardner v Broderick, 392 US 273 and People v Corrigan, 80 NY2d 326. These ruling discuss the parameters of use immunity in connection with compelling a public officer or employee to answer questions concerning his or her performance of official duties.

In the event an individual fails to answer questions truthfully where he or she has use or transactional immunity, such immunity does not prevent any false answer the individual might give the investigator from being used against the individual if he or she is subsequently charged with perjury [United States v Apfelbaum, 445 US 115].

Further, the Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.

Statutory rights to due process in a disciplinary action

Statutory rights to due process in a disciplinary action  

Matter of Soleyn v New York City Department of Educ., 2011 NY Slip Op 32604(U), Supreme Court, New York County, Docket Number: 106290/10, Judge: Emily Jane Goodman. Not selected for publications in the Official Reports.

Although Earl Soleyn, a teacher employed by the New York City Department of Education, was informed of his right to a disciplinary hearing, and participated in the proceeding with counsel, he challenged the process claiming that he was denied due process because disciplinary charges were not initially reviewed by the governing school board for a finding of probable cause. Instead, Soleyn contended, his school principal made the finding of probable cause.

Soleyn also alleged that his right to due process was violated because the disciplinary action was heard by a single arbitrator not withstanding his request that a three-member panel hear the charges filed against him.

As to Solon’s claim that the school board, rather than his principal, was required to make a finding of probable case, Judge Goodman said that Education Law §3020-a (1), in pertinent part, provides that "[a111 charges against a person enjoying the benefits of tenure . . . shall be in writing and filed with the clerk or secretary of the school district or employing board . . . after receipt of charges, the employing board, in executive session, shall determine by a vote of a majority of all the members of such board, whether probable cause exits to bring a disciplinary proceeding against an employee pursuant to this section.

Here, however, the Department contended that due process was not violated because on August 16, 2007, then-Chancellor Joel Klein delegated, pursuant to Education Law §2590h(19), the power to initiate and resolve disciplinary charges against teaching and supervisory staff members who have completed probation, to all high school principals.

Although Soleyn argued that such delegation would mean that the accuser makes the finding of probable cause, Judge Goodman disagreed and held that Chancellor Klein’s delegation did not constitute a violation of due process, where, as here, the ultimate fact finder is a neutral decision maker.

Addressing Soleyn’s claim that his due process rights were violated because the matter was heard by a single arbitrator, instead of a three-member panel, Judge Goodman said that the Department had rebutted this argument by citing Article 23 Section G of the DOE-UFT Collective Bargaining Agreement, which provides for a single arbitrator. 

Probably the seminal case addressing the impact of a collective bargaining agreement’s establishing alternate disciplinary procedures to those set out in law is Matter of Antinore v State of New York, 40 NY2d 6. Here the Court of Appeals ruled that a union could bargain away the employee’s statutory disciplinary rights if the alternate procedure so negotiated provided constitutional due process protections equivalent to those available under the statute.

The Soleyn decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2011/2011_32604.pdf