Insubordination, neglect of duty, and unbecoming conduct

Insubordination, neglect of duty, and unbecoming conduct

OATH Index No. 1372/14

A respiratory therapist [RT] was charged with insubordination, neglect of duty, and unbecoming conduct. OATH Administrative Law Judge Faye Lewis found that RT neglected his duty by failing to answer multiple telephone calls from the emergency room relating to a trauma patient and failing to respond to the emergency room in a timely manner. 

However, the appointing authority did not establish that RT was insubordinate or that he engaged in unbecoming conduct by initiating an argument with staff. Penalty recommended was a 60-day suspension without pay.

The decision is posted on the Internet at: http://archive.citylaw.org/oath/11_Cases/14-1372.pdf

Failure to name necessary parties required the dismissal of an appeal to the Commissioner of Education

Failure to name necessary parties required the dismissal of an appeal to the Commissioner of Education

Decisions of the Commissioner of Education, Decision No. 16,607

This appeal concerned the school district’s alleged failure to recall an individual whose name appeared on the relevant preferred eligible list who claimed to have greater seniority that those reinstated from the preferred list.

It is instructive in that it again illustrates the critical need to join necessary parties, a party whose rights would be adversely affected by a determination of an appeal in favor of a Petitioner.

Further, joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.

In this instance, said the Commissioner, if the Petitioner’s request for relief were granted, the rights of the three duly certified teachers earlier appointed, each of whom allegedly had less seniority in the relevant tenure area than Petitioner, could be adversely affected, thus making those teachers necessary parties to this action.

As Petitioner failed to name and serve these individuals, the Commissioner dismissed Petitioner’s appeal.

The Commissioner also noted that that Petitioner had named the superintendent in the petition. However, there was no evidence in the record that the superintendent was personally served and thus Petitioner’s claims against the superintendent were also be dismissed for lack of personal service.

As to Petitioner request attorney fees and reimbursement for the costs and disbursements of this proceeding, the Commissioner noted that there was no statutory authority to award monetary damages, costs or reimbursements in an appeal pursuant to Education Law §310.

A court will confirm an arbitration award unless it finds the award irrational or violates public policy, or exceeds a specifically enumerated limitation on the arbitrator's power

A court will confirm an arbitration award unless it finds the award irrational or it violates strong public policy, or it exceeds a specifically enumerated limitation on the arbitrator's power

Professional Firefighters Assn. of Nassau County v Village of Garden City, 2014 NY Slip Op 05343, Appellate Division, Second Department

The Village Garden City assigned volunteer firefighters to operated “first line” equipment rather than to paid firefighters represented by the Professional Firefighters Association of Nassau County. The Association grieved the Village’s action and the arbitrator held that the Village had violated the relevant collective bargaining agreement by assigning the operation of first line equipment to volunteer firefighters.

When the Association filed an Article 75 petition seeking to confirm the award, the Village moved to vacate the arbitrator’s decision. Supreme Court vacated the arbitrator’s award and the Association appealed.

The Appellate Division reversed the Supreme Court order on the law, with costs, confirming the arbitration award is granted. The court explained that arbitration decisions are entitled to deference from the courts and will not be disturbed unless they are irrational, violate public policy, or exceed a specifically enumerated limitation on the arbitrator's power.

Rejecting the Village’s argument to the contrary, the Appellate Division said that “challenged arbitration award did not exceed a specifically enumerated limitation on the arbitrator's power.’  Rather, said the court, the arbitrator acted within her broad authority under the collective bargaining agreement by relying upon the prior agreements and past practices of the parties in interpreting the provisions of the agreement, and in determining that the Village violated it by assigning the operation of first line equipment to volunteer firefighters rather than to paid firefighters represented by the [Association].

As the arbitrator's award was neither irrational nor violative of public policy, the Appellate Division held that Supreme Court erred in denying that branch of the petition which was to confirm the award and in granting the Village's motion to vacate it.

The New York City Metropolitan Transportation Authority is seeking applicants for the position of Deputy General Counsel – Employment

The New York City Metropolitan Transportation Authority is seeking applicants for the position of Deputy General Counsel – Employment

The Deputy General Counsel – Employment reports to the General Counsel and serves as the Metropolitan Transportation Authority’s senior in-house employment law expert.

Duties include managing the employment functions of the MTA Headquarters Legal Department; representing the MTA in litigation and administrative matters before federal and state courts and various administrative agencies, including the Equal Employment Opportunity Commission, State Division of Human Rights and State Public Employment Relations Board, providing day-to-day legal advice and counsel to MTA's Human Resources and Labor Relations Departments and Department of Diversity and Civil Rights regarding employment, employment discrimination and labor issues and for developing policies and procedures in those areas.

Other duties include:

■ Coordinating with the MTA's subsidiary and affiliated agencies' law departments, equal employment opportunity specialists and human resources managers concerning certain all-agency policies and initiatives in the labor and employment areas;

■ Advising MTA and its agencies on issues involving Title VI, environmental justice, equal employment opportunity, personal privacy protections (including HIPAA), MTA's disadvantaged, minority and women-owned business enterprise ("DMWBE") programs, Paratransit and ADA station accessibility matters;

■ Coordinating reporting by the MTA and its agencies to MTA's Board and to federal and state regulatory authorities, including the Federal Transit Administration concerning Title VI, equal employment opportunity and MTA's DMWBE programs;

■ Advising MTA management concerning the legal risks related to employment practices to protect MTA's interests; and

■ Supporting the General Counsel in the performance of his accountabilities by providing him with legal and policy advice representing the MTA in complex and sensitive special assignments as requested by the General Counsel..

The Deputy General Counsel – Employment will be expected to provide guidance, advice, and general supervision to assistant and, or, associate counsels.

Additional information concerning this position is posted on MTA's Internet Careers page.

Interested attorneys may submit their “online application” form by clicking on the “APPLY NOW” button from either the MTA’s CAREERS page or from the JOB DESCRIPTION page, which can be found at:

https://erecruit.mtabsc.info/psc/ERPRD/EMPLOYEE/HRMS/c/HRS_HRAM.HRS_CE.GBL?&PAGE=HRS_CE_HM_PRE

under MTA Headquarters jobs. 

If you have previously applied on line for other MTA positions, enter your User Name and Password.  If it is your first registration, click on the CLICK HERE TO REGISTER hyperlink and enter a User Name and Password; then click on the REGISTER button.
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Termination during a disciplinary probation period

Termination during a disciplinary probation period

2014 NY Slip Op 05347, Appellate Division, Second Department

An employee [Petitioner] filed an Article 78 petition challenging the appointing authority's summarily terminating him from his position.

Earlier Petitioner, a Safety and Security Officer, was served with a notice of discipline alleging that he was guilty of misconduct when, among other things, he failed to properly activate the emergency medical system. Petitioner and the appointing authority then entered into a disciplinary settlement agreement that provided Petitioner would serve a one-year disciplinary evaluation period during which time the appointing authority could terminate his employment should he commit any act that was the same as, or similar to, the acts underlying the charges cited in the notice of discipline.

During the “disciplinary evaluation period” Petitioner was sent a letter of termination in which the appointing authority stated that “Petitioner failed to respond appropriately to an emergency situation.”

The Appellate Division, noting that “The disciplinary settlement agreement entered into by the parties constituted a valid, binding contract,” dismissed Petitioner’s action.

The court explained that under the terms of this agreement, the Petitioner would be permitted to continue his employment notwithstanding the prior notice of discipline and he, in turn, agreed to the termination of his employment during the disciplinary evaluation period for any act that was deemed to be the same as or similar to the acts underlying the charges cited in the notice of discipline.

Petitioner, in agreeing to the terms set out in the disciplinary settlement agreement, absent bad faith on the part of the appointing authority, waived any right he may have had under the operative collective bargaining agreement to a review of the appointing authority’s decision to terminate his employment “for acts the same as or similar to his prior alleged misconduct.”

Finding that the appointing authority’s decision to terminate his employment was rationally based and thus was not arbitrary and capricious, in the absence of Petitioner demonstrating that his termination was carried out in bad faith or illegally accomplished, the Appellate Division sustained Petitioner's being summarily removal from his position

Further, said the court, Petitioner failed to raise an issue of fact sufficient to warrant a hearing as otherwise provided pursuant to §7804(h) of the Civil Practice Law and Rules [CPLR].

In contrast, in Taylor v Cass, 122 A.D.2d 885, a County employee won reinstatement with full retroactive salary and contract benefits because the court determined that he was improperly dismissed while serving a disciplinary probation period. The terms of Taylor’s probation provided that he could be terminated without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” at any time during his disciplinary probationary period. Taylor was subsequently terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.”

The Appellate Division ruled that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement agreement: intoxication on the job.

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Failure to fulfill the requirements for an extension of a leave of absence

Failure to fulfill the requirements for an extension of a leave of absence

OATH Index No. 749/14

New York City Office of Administrative Trials and Hearings Administrative Law Judge John B. Spooner recommended the termination of employment of a service aide for excessive absence and absence without leave.

The ALJ rejected the aide’s claim that he was unable to work due to disability and that his employer improperly denied his leave request.

Judge Spooner noted that the employee had been granted a two-month medical leave and was told that if he needed to extend the leave he must request the extension with documentation of his “diagnosis, prognosis, and dates unable to work” prior to the expiration of the leave. 

ALJ Spooner found respondent failed to fulfill the requirements for an extension. His formal extension request was filed months late and the medical notes he submitted gave no information as to treatment and were vague as to prognosis.

The decision is posted on the Internet at http://archive.citylaw.org/oath/14_Cases/14-749.pdf
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A court’s review of an administrative decision supported by substantial evidence is limited to determining if it was arbitrary, capricious or affected by error of law

A court’s review of an administrative decision supported by substantial evidence is limited to determining if it was arbitrary, capricious or affected by error of law

2014 NY Slip Op 04637, Appellate Division, Fourth Department

Petitioner [Plaintiff] commenced this proceeding pursuant to CPLR Article 78 challenging an administrative determination terminating his General Municipal Law §207-c benefits on the ground that his current disability was not related to an injury suffered on-the-job.

Supreme Court refused to transfer the proceeding to the Appellate Division pursuant to CPLR §7804(g), holding that Plaintiff’s petition did not raise an issue involving whether the administrative decision was supported by substantial evidence.

The Appellate Division affirmed the Supreme Court’s decision explaining that "Where, as here, a petition does not raise a substantial evidence issue, a court's inquiry is limited to whether [the administrative determination] was arbitrary, capricious or affected by error of law."

In this instance, said the Appellate Division, the record supports the Supreme Court’s conclusion that the administrative decision terminating Plaintiff’s General Municipal Law §207-c benefits “was neither arbitrary and capricious, i.e., without sound basis in reason and . . . without regard to the facts … nor affected by an error of law.”

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An educator is eligible for unemployment insurance benefits during the summer recess unless given a reasonable assurance of continued employment in the next semester

An educator is eligible for unemployment insurance benefits during the summer recess unless given a reasonable assurance of continued employment in the next semester
Matter of Erie Community Coll. [Commissioner of Labor], 2014 NY Slip Op 04995, Appellate Division, Third Department

An adjunct professor [Professor] employed by Erie County Community College taught two courses during the Spring semester. In April Professor received an offer to teach two courses in the following Fall semester at the same rate of pay. Professor accepted the offer and then applied for unemployment insurance benefits for the summer recess period.

Notwithstanding §590.10 of the Labor Law, which, in pertinent part, provides that a professional employed by an educational institution is ineligible for unemployment insurance benefits for any period between two successive academic years when he or she has received a reasonable assurance of continued employment, the Unemployment Insurance Appeal Board determined that Professor was eligible to receive unemployment insurance benefits during the recess period.*

The Board explained that it a reasonable assurance of continued employment by the College was lacking as the College’s offer of employment for the fall semester given to Professor indicated a current full-time professors could, at any time up to the first day of classes, displace Professor and teach the courses assigned to him themselves.

The Appellate Division sustained the Board’s determination, explaining that the question of whether a claimant received a reasonable assurance of reemployment for the following academic year is a question of fact and, if the Board's findings in that regard are supported by substantial evidence, it will not be disturbed.

The Appellate Division concluded that the Board's decision was supported by substantial evidence and declined to disturb it.

*§590.11 of the Labor Law applies with respect to the non-professional staff of an educational institution.

Although an administrator may have certain powers to administer a statute, he or she lacks authority to supplement or amend duly enacted legislation

Although an administrator may have certain powers to administer a statute, he or she lacks authority to supplement or amend duly enacted legislation

Hazan v WTC Volunteer Fund, 2014 NY Slip Op 04103, Appellate Division, Third Department

A former emergency medical technician [EMT] went to World Trade Center site to offer assistance in the rescue and recovery efforts on September 11, 2001. He served as a volunteer at a triage center that was being established at the Chelsea Piers and sorting supplies and setting up a treatment area. The following day, EMT went to ground zero, using his emergency medical technician card and badge to gain access to the site and attempted to search for survivors. The EMT, however, was not registered or affiliated with any volunteer organization or agency during the course of these two days, and he did not aid in the rescue or recovery operations after September 12, 2001.

In March 2010, EMT registered his participation as a volunteer in the World Trade Center rescue, recovery and/or cleanup operations with the Workers' Compensation Board and filed this claim for workers' compensation benefits for injuries allegedly sustained as a result of his exposure to dust and toxins at the sites at which he served as a volunteer pursuant to Workers' Compensation Law Article 8-A. A Workers' Compensation Law Judge [WCLJ] found that EMT had sustained a compensable injury and awarded him certain benefits. The World Trade Center Volunteer Fund, however, sought review of the WCLJ's decision, contending that EMT t failed to meet the definition of "volunteer" because he did not provide proof that he was acting under the direction and control of a volunteer agency.

The Workers’ Compensation Appeal reversed the WCLJ's decision, finding that EMT did not meet the definition of "first response emergency services personnel" as set forth in the final revised Order of the Chair No. 967 issued by the Board's chair in 2006 and, thus he did not qualify as a volunteer. EMT appealed.

The Appellate Division overturned the Board’s determination in view of the legislative history of Article 8-A, several bills were circulated in the Legislature that defined a "volunteer rescue worker" as one who "rendered service under the direction and control of an authorized rescue entity." Significantly, said the court, r, such language is not included in Workers' Compensation Law Article 8-A, and "[t]he deletion of this explicit language from the version of [Workers' Compensation Law Article 8-A]; that finally passed is persuasive evidence that the Legislature rejected" the more restrictive definition of volunteer that originally was proposed.

Further, the Appellate Division said that to the extent that the Board has consistently relied upon the final revised Order of the Chair No. 9 in denying benefits to volunteers who were not affiliated with an authorized rescue entity or volunteer association, “we need note only that while Workers' Compensation Law §141 vests the Board's chair with certain powers to administer the provisions of the Workers' Compensation Law, it does not vest him or her with the authority to supplement or amend duly enacted legislation.”

Citing Russomanno v Leon Decorating Co., whatever the net effect of such orders may be, they "cannot overrule the statute itself," neither the statutory language nor the legislative history supports the Board's requirement that an individual be affiliated with an authorized rescue entity or volunteer agency in order to qualify as a volunteer and, hence, be eligible for the coverage afforded under the statute.

Accordingly, the Appellate Division held that the Board's decision denying EMTs application for benefits upon this particular ground cannot stand, although EMT must still satisfy the time, location and activity elements of Workers' Compensation Law Article 8-A in order to be entitled to benefits. The court then remitted the matter to the Board “for consideration of those issues and, more to the point, the sufficiency of claimant's proof thereon.”

Wrongfully obtaining and divulging confidential information from a department’s computer database

Wrongfully obtaining and divulging confidential information from a department’s computer database
2014 NY Slip Op 04421, Appellate Division, First Department

In this appeal the Appellate Division affirmed the termination of a police officer [Officer] but awarded the individual “back pay for the period in which he was suspended without pay beyond the 30 days permitted by Civil Service Law §75(3-a).”*

Following a disciplinary hearing, the hearing officer sustained three of the charges filed against Officer: that Officer wrongfully accessed and subsequently obtained confidential information from the agency's Computer System and which was not related to the official business of the Department; Officer did wrongfully divulge or discuss official Department business without permission or authority to do so; and that “with intent to obtain a benefit or deprive another of a benefit, ... [Officer] obtained confidential information” from the Computer System, which was not related to the official business of the Department and divulged said information to another police officer.

The Appellate Division rejected Officer’s argument that his actions did not constitute official misconduct because there is no evidence that he acted "with intent to obtain a benefit or deprive another person of a benefit" (see Penal Law §195.00[1]).

The court explained that the term “Benefit” means “any gain or advantage to the beneficiary and includes any gain or advantage to a third person pursuant to the desire or consent of the beneficiary," citing Penal Law §10.00[17]. This "includes more than financial gain and can encompass political or other types of advantage."

Here, said the Appellate Division, it can be reasonably inferred that Officer intended to obtain a benefit for his fellow officer and friend within the meaning of the statute when he accessed confidential information in the computer system and confirmed for the friend the scope of the allegations of the complainant in the disciplinary investigation against him.

Under the circumstances, the Appellate Division held that “The penalty of termination is not so disproportionate to the offense as to be shocking to one's sense of fairness,” citing Kelly v Safir, 96 NY2d 32,

Officer, said the court, “betrayed his position of trust as [an individual] who was privy to very sensitive information, and breached his confidentiality agreement with the police department, which stated that the wrongful disclosure of information would not be tolerated by the department and that divulging or discussing official department business except as authorized, constituted prohibited conduct and might constitute official misconduct under Penal Law §195.00(1).

* The appointing authority conceded that Officer was entitled to back pay for the period of time for which he was suspended without pay in excess of 30 days.

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