Administrative hearings must be fundamentally fair

Administrative hearings must be fundamentally fair

Higgins v. Solomon, 82 A.D.2d 998

Although the employer said that she was unable to attend a hearing concerning her claim for unemployment insurance benefits because of her physical condition and presented a physician’s statement to that effect, the hearing officer refused to accept her affidavit as “primary evidence.”

When asked for advice by her attorney, the hearing officer replied “I can’t help you, I don’t make house calls.”

In this instance the Appellate Division ruled that the hearing officer’s action was a denial of fundamental fairness and reversed the decision, indicating that alternative means of securing admissible evidence must be investigated.

Agency heads are sometimes faced with a similar situation when an employee fails or refuses to attend a disciplinary action.

Courts have held that the employer may proceed with the disciplinary action even though the employee is not present. The hearing may proceed and the employee tried in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.

Indeed, there is even case law stating that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the arbitration because it believed that Hall was not entitled to the arbitration. The court upheld the arbitrator’s award in favor of the employee.

Legislation pending before the Senate and the Assembly

Legislation pending before the Senate and the Assembly

Interested in reading the text of the budget bill submitted by the Governor for consideration by the Assembly and the Senate in their respective extraordinary sessions [Assembly 2 and Senate 2]?

The bill, among other things, amends the New York State Tax Law in relation to personal income tax rates, is posted on the Internet at:

http://assembly.state.ny.us/leg/?default_fld=&bn=A40002&term=&Summary=Y&Text=Y

Retired Public Employees Association sues State for unilaterally increasing the percentage of health insurance premiums to be paid by retirees of the State

Retired Public Employees Association sues State for unilaterally increasing the percentage of health insurance premiums to be paid by retirees of the State
Source: Retired Public Employees Association press release

On December 7, 2011, the Retired Public Employees Association [RPEA] announced that it is commencing legal action against Governor Andrew M. Cuomo and the State of New York challenging the State’s attempt to make its retirees pay a larger portion of their health insurance premiums. According to RPEA, State officials are “administratively extending” the provisions of certain collective bargaining agreements between employee organizations representing employees of the State as the employer to retired employees of the State.*

RPEA Executive Director Alan Dorn said that the State is trying to balance its budget on the backs of its retirees who, unlike active employees of the State in a collective bargaining unit, have no ability to negotiate for “give backs or other benefits.” Dorn observed that the State has increased the retiree’s cost of such coverage by two percent and that “a 2% contribution for individual coverage is really a 20% increase.” 


Mr. Dorn's letter to Civil Service Commission President Patricia Hite concerning the increase of the retiree's contribution for his or her health insurance  is posted on the Internet at:

http://rpea.org/documents/commentsobjectEmergRule-10-20-11-2.pdf

The text of RPEA's complaint is posted on the Internet at:

http://www.scribd.com/doc/75054148/Retirees
 

* Civil Service Law §167.1(a) currently sets the percentage of contributions for State retirees who retired on or after January 1, 1983 and provides that such retirees are to pay: 10% of the premium for individual coverage and, where so enrolled, 25% of the premium for dependent coverage.

Four months to appeal an adverse disciplinary determination is the limit

Four months to appeal an adverse disciplinary determination is the limit

Bevins v. Brugher, 83 A.D.2d 66

When the employees were found guilty of misconduct, the penalty of dismissal “effective immediately” was imposed.

The employees were notified by letter dated December 31. On May 2 of the following year the employees sought to overturn their terminations. The Court dismissed their petitions as untimely, as it was brought more than four months after the effective date of the dismissal.

The Appellate Division rejected the argument that an appointing authority could “purposefully withhold notification of the determination, allowing the limitation to run” as ignoring reality in cases of dismissal.

Human Rights may assume jurisdiction after another administrative body acts

Human Rights may assume jurisdiction after another administrative body acts

Jainchill v. NYS Human Rights Appeals Board, 83 A.D.2d 665

After having her appeal that the examiners had improperly rated her oral test because of her sex denied by the Civil Service Commission, Jainchill filed the same complaint with the State Division of Human Rights.

After initially rejecting the complaint because she had previously commenced an administrative action relating to the same grievance, the Division decided that it had jurisdiction after all.

The Appellate Division agreed, stating that the Division cannot consider matters pending before another administrative body but could take jurisdiction once the other administrative agency proceeding was completed.

N.B. The court also noted that if Jainchill had commenced a proceeding seeking judicial review of the Civil Service Commission’s determination, there would have been a permanent barrier to her filing the same complaint with the Division of Human Rights thereafter.

Passing the test is not enough

Passing the test is not enough

Kirchgessner v. Hurlbut, 81 A.D.2d 958

Although number 3 on the eligible list for Senior Caseworker, Kirchgessner was disqualified because she did not have the specified training and experience required for the position.

When her appeal to the County Personnel Officer was denied, she sued to have her name restored to the eligible list.

Kirchgessner claimed experience as a Social Welfare Examiner satisfied the “social work” requirement for Senior Caseworker (See 18 NYCRR 680.14 for the qualifications).

The Appellate Division ruled that while the descriptions of Senior Caseworker and Senior Social Welfare Examiner (See 18 NYCRR 680.14) by broad interpretation could be viewed as “generally similar,” the Personnel Director was not arbitrary in his determination that Kirchgessner’s work experience did not fulfill statutory criteria and dismissed the appeal.

The court also noted that Hurlbut had consulted with the State Civil Service Commission to confirm his interpretation.

Challenging a disciplinary termination

Challenging a disciplinary termination
Matter of Matter of Roberts v Board of Collective Bargaining of the Off. of Collective Collective Bargaining, 2011 NY Slip Op 08807, Appellate Division, First Department

District Council 37, AFSCME, AFL-CIO, challenged the penalty of dismissal imposed on one of its unit member. The employee was terminated from his position following a hearing before the New York City’s Office of Administrative Trials and Hearings. The administrative law judge had found the individual guilty of certain charges and had recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.

Although the employee appealed the appointing officer decision to the New York City Civil Service Commission, the Commission dismissed the appeal.

Noting that "The express provisions of Civil Service Law §§75 and 76 limit the appealability of a final agency determination to an article 78 proceeding or an appeal to the Civil Service Commission," the Appellate Division said that the employee failed to file a timely Article 78 “challenging that determination.”

The Appellate Division also sustained a ruling by the City’s Office of Collective Bargaining's Board of Collective Bargaining in which it declined to order the rescission and expungement of employee’s termination.

Although the challenge related only to the alleged improper charge of misuse of confidential information, the Appellate Division said that the employee’s termination was based on a number of sustained charges that were not found to be the product of improper anti-union practices.

The court held that the reinstatement of an employee in the context of an improper practice petition before OCB’s Board of Collective Bargaining “is only warranted where anti-union animus” was the “substantially motivating cause of [of the employee’s dismissal] and not merely one of the reasons therefor.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08807.htm

Individual has no right to have another position created should the program in which he or she served is discontinued

Individual has no right to have another position created should the program in which he or she served is discontinued

Niroomand v. St. Lawrence County Board of Legislators, 82 A.D.2d 939

When the County Laboratory System was discontinued, hospitals using the service were expected to obtain laboratory service elsewhere or provide their own.

The former Director of the County Laboratory was not hired by any of the hospitals. She then attempted to compel the County to grant her permanent Civil Service status, retroactively, and then appoint her to an appropriate position pursuant to Section 70 of the Civil Service Law, or place her on a preferred list (Section 80, CSL).

The Appellate Division decided that there was no transfer of functions that would serve to entitle the former employee to a Section 70 transfer, noting that the closing of the Laboratory was to save money and avoid a duplication of services.

Holding the question of granting permanent civil service status academic, the court observed that even if Niroomand held such status, she was neither entitled to employment by any of the hospitals nor to placement on a preferred list because “it is unlikely that a County Laboratory will be re-established and there is no one whom [Niroomand] can displace”.

Significantly, the court indicated that the hospitals involved do not have to create a position for her.

N.B. Placement on a preferred list flows from a right created by Section 80 of the Civil Service Law, not whether placement pursuant to Section 81 of such law is expected or materializes.

Supervisor terminated for staging plot to “fool” employees

Supervisor terminated for staging plot to “fool” employees

Keith v NYS Thruway Authority, ;517 N.Y.S.2d 334

What might start as a “practical joke” may result in disciplinary action being taken against a supervisor or an employee if the consequences of such a “joke” adversely affect employees or the agency. A recent ruling by the Appellate Division, illustrates just such a situation.

Bertram Keith, an employee of the NYS Thruway Authority, was overseeing the installation of a new heating system in a toll plaza when some employees were apparently exposed to asbestos. The employees were granted sick leave and Keith reprimanded for “failing to take proper safety precautions.”

Believing that the employees had fabricated their illness, Keith, with the aid of his subordinates, created the appearance that asbestos removal at another location had commenced without appropriate precautions having been taken. In fact, the removal work had not yet been started. His scheme succeeded, producing worker panic and union threats of pulling all toll workers off the job.

As a result, charges of misconduct were filed against Keith alleging he had led employees to believe that their health was in danger and his actions placed the Thruway in a position where its tollbooths would be unmanned. A hearing officer found Keith guilty of the charges and recommended his termination.

When the Authority adopted the findings and recommendation of the hearing officer, Keith appealed, arguing that he should not have been terminated as “nobody was in actual peril.”

The Appellate Division affirmed Keith’s dismissal

The Appellate Division found that there was substantial evidence that Keith orchestrated a plot to simulate asbestos removal and that the deception resulted in worker panic and nearly caused the employees to abandon their workstations.

“Such conduct by a public employee in a position of supervision cannot be countenanced or lightly disregarded” said the Court. The fact that no employee had been exposed to asbestos was of no concern to the court as “the alarming situation created was precisely the result sought by (Keith)” and it was for that action that disciplinary charges were filed.

The Court than refused to modify the penalty stating that “in light of the egregious nature of (Keith’s) actions and resulting hysteria which flowed naturally and foreseeable therefrom, we cannot say that the penalty imposed by the agency was inconsistent with the notions of fairness.”

More severe disciplinary penalty imposed by Commissioner Of Education sustained

More severe disciplinary penalty imposed by Commissioner Of Education sustained

Kloepfer v. Ambach 82 A.D.2d 974

A teacher having 11 years of satisfactory service was charged with being ineffective and incompetent following her transfer to another school. After an Education Law Section 3020-1 hearing, the hearing officer recommended that she be suspended for six months and placed in another school.

On appeal, the Commissioner of Education held the teacher should be terminated. When the teacher sued, the Court held the Commissioner could impose the penalty of dismissal.