When is “final” administrative or quasi-judicial determination “final”

When is “final” administrative or quasi-judicial determination “final”

Seidner v. Town of Colonie, 79 AD2d 751

Administrative and quasi-judicial decisions such as those resulting from disciplinary action, commission decisions and similar proceedings may be reviewed by the courts once the decision is “final”. It is sometimes necessary to determine if the decision is ripe for appeal as well as the timeliness of the appeal.

In Seidner, the Appellate Division indicated that an administrative determination is considered “non-final” where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner’s application.

Seidner’s appeal was held untimely because it was filed late. 

While the matter could be reconsidered by action of the (Zoning Appeals) Board, “there was not statutory authority for a re-hearing upon the petitioner’s application (See Section 267.6, Town Law).

The discretionary power to rehear or reopen matters that is vested in nearly all administrative agencies, is not sufficient to render an otherwise final order “non-final.”

The Appellate Division then commented that the courts have consistently held that the filing, and subsequent denial, of an application to reconsider an administrative board’s determination does not extend the period of limitations within which to seek (judicial) review of the determination.

Evidence obtained using a global positioning device [GPS] permitted in administrative disciplinary hearing

Evidence obtained using a global positioning device [GPS] permitted in administrative disciplinary hearing

Matter of Matter of Cunningham v New York State Dept. of Labor, 2011 NY Slip Op 08529, Appellate Division, Third Department

Michael A. Cunningham, an employee of the New York State Department of Labor, was served with disciplinary charges alleging that he had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle. The disciplinary hearing officer found Cunningham guilty of certain charges and recommend that Cunningham be dismissed from his position. The Commissioner of Labor accepted the hearing officer's findings and recommended penalty and terminated Cunningham from service.

In the course of an investigation which resulted in the disciplinary charges being filed against Cunningham, the State’s Office of the Inspector General used a global positioning system (GPS) device placed on Cunningham’s vehicle and the resulting information was used in the course of Cunningham’s disciplinary hearing as evidence to prove charges that he had reported false information and submitted false vouchers related to his travel using his personal vehicle.*

Cunningham, contending that the GPS devices placed on his car without a warrant constituted an illegal search and seizure under the NY Constitution, appealed and argued that all such information should have been excluded from evidence at the administrative hearing.

One of the significant issues before the Appellate Division was Cunningham’s challenging the GPS evidence used in the disciplinary action. Essentially the Appellate Division had to determine if the admission of evidence obtained through the use of the GPS to prove certain of the disciplinary charges was unduly prejudicial to Cunningham.

The Appellate Division noted that in a case decided after OIG had concluded its investigation of Cunningham, a majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder 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" (People v Weaver, 12 NY3d 433 [2009]).

Concluding that although the GPS evidence gathered in the course of the OIG investigation would have likely been excluded from a criminal trial under Weaver, the Appellate Division said that the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law, citing McCormick, Evidence §173 [6th ed] [supp], in which it was observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”.

The court said that the test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”

Similarly, said the court, when the search was “conducted by an entity other than the administrative body” seeking to use the evidence in a disciplinary proceeding, the rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth."

As in this instance the investigation was refer to the OIG. Under such facts, said the court, “the reasonableness test appears applicable.”

The court concluded that in order to establish a pattern of serious misconduct such as repeatedly submitting false time records in contrast to a mere isolated incident, it was necessary to obtain pertinent and credible information over a period of time. Here the Appellate Division ruled that “obtaining such information for one month using a GPS device was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonworking-related ventures during work hours.”

Under the circumstances the Appellate Division said that neither OIG nor Department of Labor had acted unreasonably.

* See, also, Matter of Halpin v Klein, 62 AD3d 403. In Halpin the employee was found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The Halpin decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03593.htm


Another decision that addresses this issue is United States v Skinner, [USCA, 6th Circuit] posted on the Internet at::
http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf

The Cunningham decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08529.htm

Civil service department determines testing format

Civil service department determines testing format

Esposito v. Civil Service Department, 55 N.Y.2d 835

When provisional employees were unable to persuade the Department of Civil Service to use an “unassembled examination” which is based on the candidates training and experience instead of the written multiple-choice type to test eventually held, the employees sued.

The provisional employees contended that “the only appropriate and effective method of evaluating merit and fitness for their position (Rehabilitation Counselor and Trainees) was the unassembled test.

The court stated that it is not whether the employee’s method of testing is preferable but whether the Civil Service Department’s method is irrational and dismissed their petition.

Decisions issued by PERB

Decisions issued by PERB

Reduction of services

A public employer that reduces services has the burden of showing that such reduction was made in good faith for a proper purpose. Such a showing will support workload and salary reductions proportionate to the reduction in service. Reductions in workload and salary without proportionate reductions in services are subject to negotiations under the Taylor Law (Schulerville Central School District, Case U-4212).

Protected rights

Permanently changing the work hours of employee who was union president and limiting his “leave for union business” to four hours during each tour held violation of employee’s protected rights; contract authorized up to 16 hours of such leave per week, subject to employer approval. Matter of City of Mount Vernon, Case U-4688.

Subcontracting unit work

Unilaterally subcontracting for school lunch program that resulted in termination of food service employees was in violation of the School District’s duty to bargain the impact of such a decision. Although the employer was ordered to offer employees reinstatement, back salary was denied because the district had made a good faith offer of alternative employment without loss of salary or benefits at the time of the subcontracting. (Matter of Hilton Central School District, Case U-4887)

Negotiate in good faith

Union violated its duty to negotiate in good faith when it refused to sign the contract reflecting all the agreements reached and ratified by the members of the Union with the County following conclusion of negotiations and was directed to execute the Agreement (Matter of Onondaga County, Case U-4807).

Disabled firefighters on §207-a leave not entitled to same leave benefits as are available to active firefighters

Disabled firefighters on §207-a leave not entitled to same leave benefits as are available to active firefighters

Chalachan v. City of Binghamton, 81 A.D.2d 973, affd. 55 N.Y.2d 989

The Appellate Division considered a claim by firefighters receiving disability benefits under Section 207-a of the General Municipal Law that in addition to those benefits, they were entitled to vacation benefits under their collective bargaining agreement.

The court dismissed the claim holding that “if every benefit provided active firefighters in the collective bargaining agreement was intended to include disabled firefighters covered by Section 207-a...the contract should contain language to so provide...(the) contention that they are members of their union...entitled to each and every fringe benefit for which active firefighters work daily is without merit. They do not work to earn vacation pay. They are already paid 52 weeks each year and their construction of the agreement to give them pay for 56 weeks (per year) is rejected”.

Decisions of interest involving Government and Administrative Law

Decisions of interest involving Government and Administrative Law

Source: Justia December 10, 2011

Younies v. Merit Sys. Prot. Bd.

Court: U.S. Federal Circuit Court of Appeals

Docket: 11-3031

December 5, 2011

Judge: Prost

Areas of Law: Government & Administrative Law, Labor & Employment Law

Plaintiff applied for a position with the Department of Labor and responded "no" to whether he had been convicted or put on probation during the preceding 10 years. After he was hired, he signed the form, certifying the answers as true. It came out that plaintiff had been on probation for disturbing the peace He insisted that he had been arrested and placed on "informal probation," but not convicted. His attorney explained that plaintiff had pled guilty; the order stated that the plea was vacated and that "a plea of not guilty be entered, and that the accusatory filing is dismissed. ... does NOT relieve the defendant of the obligation to disclose the conviction" in application for public office. The Department terminated plaintiff during his probationary period. An ALJ dismissed his appeal, finding that the firing was based on conduct during the probationary period. The Merit System Protection Board and Federal Circuit denied appeals. To invoke 5 C.F.R. 315.806(c) for MSPB jurisdiction, plaintiff would have to identify facts in the record amounting to a non-frivolous assertion that the Department actually relied on a pre-employment condition in terminating his employment. Plaintiff failed to do so; the termination letter expressly referenced his signature on the application after he was hired.

http://j.st/NpY

Bakalekos v. Furlow

Court: Arkansas Supreme Court

Docket: 11-526

December 1, 2011

Judge: Goodson

Areas of Law: Business Law, Constitutional Law, Government & Administrative Law

Appellants were retired police officers who did not receive the benefit of all the monthly benefit increases for retired members of a municipal police pension and relief fund. The increases were authorized by the fund's Board of Trustees. Appellants mounted a multi-pronged challenge to the increase in benefits. The circuit court granted summary judgment for the Board. The Supreme Court affirmed, holding that the circuit court did not abuse its discretion in (1) ruling that the additional payments were authorized by Ark. Code Ann. 24-11-102(a); (2) finding that the statute did not constitute an unconstitutional delegation of legislative authority; (3) finding that the Board did not breach its fiduciary duties by increasing benefits to current retirees and not to future retirees, an action that was expressly authorized by statute; and (4) in ruling that the statute, as applied, did not violate the equal protection clause of the state Constitution as there was a rational basis for the Board's disparate treatment of current and future retirees.

http://j.st/NSu

Westmoreland v. Sutherland

Court: U.S. 6th Circuit Court of Appeals

Docket: 10-3766

December 6, 2011

Judge: Guy

Areas of Law: Civil Rights, Communications Law, Constitutional Law, Labor & Employment Law

The city disbanded its dive team because of budget cuts, after which two children drowned. Plaintiff, a fire department employee and member of the disbanded dive team, spoke at a city council meeting, indicating that the budget cuts caused the deaths and would cause more deaths. Plaintiff was ordered to serve unpaid suspension, equivalent to three 24 hour shifts, on grounds of insubordination, malfeasance, misfeasance, dishonesty, failure of good behavior, and conduct unbecoming of an officer. After a grievance hearing the mayor affirmed the suspension, finding that plaintiff’s statements had been false. The district court granted summary judgment for the city. The Sixth Circuit remanded for determination of whether the statements were false; whether any false statements were knowingly or recklessly made; whether a reasonable official would have believed any false statements were knowingly or recklessly made; and, if necessary, whether plaintiff’s interest in speaking as a citizen on a matter of public concern outweighed the city’s interest in promoting the efficiency of the public services it performs through its employees.

http://j.st/NG9

Glenn v. Brumby

Court: U.S. 11th Circuit Court of Appeals

Docket: 10-15015, 10-14833

December 6, 2011

Judge: Barkett

Areas of Law: Civil Rights, Constitutional Law, Labor & Employment Law

Plaintiff filed a complaint seeking declaratory and injunctive relief pursuant to 42 U.S.C. 1983 for alleged violations of her rights under the Equal Protection Clause of the Fourteenth Amendment, claiming that defendant fired her from her job as an editor because of sex discrimination. Plaintiff also claimed that her constitutional rights were violated because defendant terminated her employment due to her medical condition, known as Gender Identity Disorder. The district court granted summary judgment to plaintiff on her sex discrimination claim and granted summary judgment to defendant on plaintiff's medical discrimination claim. Both parties timely appealed. The court held that a government agent violated the Equal Protection Clause's prohibition of sex-based discrimination when he or she fired a transgender or transsexual employee because of his or her gender non-conformity. The court also held that defendant had advanced no reason that could qualify as a governmental purpose, much less an "important" governmental purpose, and even less than that, a "sufficiently important government purpose" that was achieved by firing plaintiff because of her gender non-conformity. Therefore, the court affirmed the judgment of the district court granting summary judgment in favor of plaintiff on her sex-discrimination claim. In light of this decision, which provided plaintiff with all the relief she sought, there was no need to address plaintiff's cross-appeal.

http://j.st/NN3

New York State's Attorney General and the State's Comptroller report indictments in alleged "member item theft scheme"

New York State's Attorney General and the State's Comptroller report indictments in alleged "member item theft scheme"
Source: Offices of the State Comptroller and the Attorney General


N.B. The charges and allegations set out below are merely accusations and all the individuals named in the following press release are presumed innocent unless and until proven guilty in a court of law.

On December 7, 2011 Attorney General Eric T. Schneiderman and Comptroller Thomas P. DiNapoli announced the indictments of four individuals accused of participating in a scheme to pocket taxpayer dollars intended for public services in New York City. In what was described as "A groundbreaking public integrity initiative" between the Offices of the Attorney General and State Comptroller exposed a nonprofit allegedly set up by New York State Senator Shirley L. Huntley that funneled member item funds to those associated with it, including the senator’s aide and an individual who shares a residence with the senator.

According to Attorney General Schneiderman’s indictment, the president and treasurer of the Parent Workshop, Inc., submitted fraudulent documents to New York State to obtain public money from a legislative member item. Instead of providing the promised programs, the two defendants allegedly pocketed approximately $29,950. Two additional defendants were charged with falsifying documents to cover up the theft once the investigation commenced.

Since 1999, the New York State Legislature has distributed more than $900 million through legislative member items to more than 20,000 nonprofit entities.

“This personal profit-making scheme defrauded taxpayers, all the while depriving communities of much-needed funds. Now it's time to hold those behind it accountable,” Attorney General Schneiderman said. “The charges announced today send a strong message that those who abuse their positions to rip off taxpayers will be prosecuted. My office’s partnership with the Comptroller is designed to combat such corruption, and we will continue to work tirelessly to protect every penny of taxpayer money during these challenging economic times.”

“Taking money intended for families in need is unconscionable” State Comptroller DiNapoli said.  “Abuse and fraud will not be tolerated. By combining forces, my office and the Attorney General have exposed and are prosecuting this egregious theft of state funds which were intended for the public good.”

The charges accuse Patricia D. Savage, the nonprofit’s president and Senator Huntley’s aide, as well as Lynn H. Smith, the nonprofit’s treasurer and an individual who shares a residence with the senator, of engaging in a fraudulent scheme to steal member item funds. The defendants falsely asserted that Parent Workshop, Inc. would use the member item funds secured by Senator Huntley to hold workshops for and conduct outreach to parents on the workings of the New York City public school system.

Instead, the indictment alleges that Ms. Savage and Ms. Smith never intended to hold any such events.  Furthermore, the indictment alleges that they falsely asserted in multiple submissions to the New York State Department of State that, from April 2008 through March 2009, the Parent Workshop had held workshops and conducted outreach, when no such workshops were ever held and no such outreach was ever conducted.  Based on these submissions, the Department of State provided $29,950 to the Parent Workshop – the sum the two defendants are charged with stealing.

According to the indictment, Ms. Savage and Ms. Smith submitted a fraudulent contract and five fake vouchers to illegally obtain that money.  Each is charged with 11 total counts of Grand Larceny in the Third Degree and Offering a False Instrument for Filing in the First Degree.

The indictment also alleges that after the Attorney General’s Office issued a subpoena to the Parent Workshop, defendant David R. Gantt falsified records in an effort to claim that he was paid in cash for conducting workshops as a consultant. In fact, he never conducted any workshops.  Mr. Gantt is charged with four counts of Falsifying Business Records in the First Degree. 

Defendant Roger N. Scotland, the President of the Southern Queens Park Association, a separate nonprofit corporation located in Queens, also created a false record in an attempt to hide the theft from investigators.  Mr. Scotland is charged with Falsifying Business Records in the First Degree, Tampering with Physical Evidence, and conspiracy to engage in those crimes.

The joint investigation began after contact with the New York State Department of State. 

Prosecuting the case are Senior Counsel Emily Bradford and Assistant Attorney General Jerrold Steigman, under the supervision of Public Integrity Deputy Bureau Chief Stacy Aronowitz, Chief William E. Schaeffer, and Executive Deputy Attorney General for Criminal Justice Nancy Hoppock.  The joint investigation was conducted the Comptroller’s Bureau of State Expenditures and Legal Services Division’s Investigations Unit.

The Attorney General and the State Comptroller encourage anyone with additional information on this matter or any other alleged public corruption activities to contact the Attorney General’s Office at 1-800-996-4630 or the Comptroller’s office by dialing the toll-free fraud hotline at1-888-672-4555; to file a complaint online at investigations@osc.state.ny.us; or to mail a complaint to: Office of the State Comptroller Investigations Unit, 110 State Street, 14th floor, Albany, NY 12236.

Providing for the representation and indemnification of public officers and employees of political subdivisions of the State and similar entities in the event they are sued

Providing for the representation and indemnification of public officers and employees of political subdivisions of the State and similar entities in the event they are sued

Informal Opinions of the Attorney General; 2011-9

Concluding that the Independent Livery Drivers Fund was not a public entity, the Attorney General said that benefits available to officers and employees set out in Public Officers Law §18,* providing for the representation and indemnification of public officers and employees, could not be claimed by members of the Fund’s Board of Directors.

§18, explained the Attorney General, provides that a public entity may adopt a local law, by-law, resolution, rule or regulation to indemnify and save harmless its employees from liability in the event there is a judgment against them resulting of an act or omission as a result of the individual acting within the scope of his or her public employment or duties.

However, a public entity, for the purposes of §18, means a county, city, town, village or any other political subdivision or civil division of the state, a school district, a BOCES or other entity operating a public school, a college, community college or university, a public improvement or special district, a public authority, commission, agency or a public benefit corporation. It also includes “any other separate corporate instrumentality or unit of government.” The Fund, said the Attorney General, was not such a public entity.

* §17 of the Public Officers Law provides similar protections for officers and employees of the State as the employer.

That no injury resulted from a school bus driver's unsafe acts does not diminished the severity of the employee's misconduct

That no injury resulted from a school bus driver's unsafe acts does not diminished the severity of the employee's misconduct

Ronkese v. Highland Central School District, 82 A.D.2d 1011

A school bus driver was disciplined pursuant to Section 75 of the Civil Service Law for unsafe driving.

Found guilty of seven incidents of unsafe driving, the employee was dismissed.

On appeal the Appellate Division held repetition of unsafe acts endangering the safety of school children cannot be diminished because no accident or injury occurred.

The decision noted that Ronkese had received a number of reprimands for such conduct previously and the punishment was not shocking to one’s sense of fairness.

The driver’s claim that the Section 75 determination was based on a large measure of hearsay evidence was rejected as compliance with the technical rules of evidence was not mandated by Section 75. The court then determined that the record contained sufficient evidence to support the appointing authority’s determination.

Dismissal of an employee for “disloyalty” upheld

Dismissal of an employee for “disloyalty” upheld

Thomas v. New York Temporary State Commission on Regulation of Lobbying, 83 A.D.2d 723

An employer is sometimes confronted with a situation in which an employee’s duty of loyalty to the employer is called into question or there appears to be a conflict of interest with respect to the employee’s performance.

In Thomas the employee sued when the Commission discharged him for disloyalty and conflict of interest.

At the time of his discharge, Thomas was an associate counsel to the Commission. The Commission claimed that while an employee, Thomas was also actively assisting one of the lobbying organizations that the Commission was established to regulate.

Noting that the employee was not covered by Civil Service Law Section 75, The Appellate Division rejected Thomas’ argument that his termination reflected adversely on his reputation and position as an attorney as well as his claim that his dismissal had violated his First Amendment rights.