Perfecting an action or special proceeding against a political subdivision of the State or other entities may require the filing of a timely notice of claim

Perfecting an action or special proceeding against a political subdivision of the State or other entities may require the filing of a timely notice of claim

Mirro v City of New York, 2018 NY Slip Op 02154, Appellate Division, Second Department 

A timely filing of a "notice of claim" may be a condition precident to maintaining and an action or special proceeding against a political subdivision of the State. General Municipal Law §50-i, for example, provides, in pertinent part, that "No action or special proceeding shall be prosecuted or maintained against a city, county, town, village, fire district or school district for personal injury, wrongful death or damage to real or personal property alleged to have been sustained by reason of the negligence or wrongful act of such city, county, town, village, fire district or school district or of any officer, agent or employee thereof, including volunteer firemen of any such city, county, town, village, fire district or school district or any volunteer fireman whose services have been accepted pursuant to the provisions of section two hundred nine-i of this chapter, unless, (a) a notice of claim shall have been made and served upon the city, county, town, village, fire district or school district in compliance with section fifty-e of this article.*"

New York courts, however, have recognized a "public interest exception" to this notice requirement as was an element in the plaintiff maintaining certain branches of her cause of action in Mirro v City of New York.

The plaintiff in this action, Michele Mirro, was employed by the New York City Department of Consumer Affairs [DCA]. She commenced a lawsuit against the City, DCA, and four DCA employees in which she set out causes of action to recover damages for alleged violations of her rights to free speech and to petition under the New York State Constitution, Article I, §§8-9, and discrimination on the basis of age in violation of the New York City Human Rights Law.

Supreme Court granted certain of DCA's motions and denied certain of Mirro's cross motions. Mirro appealed these rulings by Supreme Court.

The Appellate Division, noting that Mirro failed to serve a notice of claim, said this was a fatal omission and "requires dismissal of the cause of action alleging violations of the State Constitution." Rejecting Mirro's argument to the contrary, the court said that this branch of her complaint "does not fall within the public interest exception to the notice of claim requirement," as Mirro was seeking to vindicate her private rights and the disposition of those claim will not directly affect or vindicate the rights of others.

In addition, the court observed that Mirro's complaint named the individual DCA defendants in her complaint "in their individual capacities," alleging she suffered retaliation by them as part of their employment, and, thus, the notice of claim requirement applied to these claims as well.

In contrast, the Appellate Division ruled that Supreme Court erred in granting DCA's motion to dismiss Mirro's cause of action alleging age discrimination within the meaning of New York City's Human Rights Law. The court explained that Mirro's alleged disparate treatment of older employees, including herself, and that disciplinary charges that had been served upon her were based, in part, on age discrimination, sufficiently stated a cause of action to recover for age discrimination pursuant to the New York City's Human Right Law.

With respect to the exception to the notice requirement in cases that involved 1. an issue of vindication a public interest [Doyle v Deer Park Union Free School District, 230 A.D.2d 820] and 2. a case in which a collective bargaining agreement between the parties, Civil Service Employees' Association v Lakeland Central School District, 230 A.D.2d 703, was found to constitute a waiver of the notice of claim provision of law. These decision illustrate how the courts evaluate these exceptions.

In Doyle v Deer Park Union Free School District educator Velia Doyle and a number of other teachers sued Deer Park alleging it had unlawfully discriminated against them. The educators contended that the District had violated §296 of the Executive Law, the State's Human Rights Law, prohibiting age discrimination.

Doyle alleged that the District's discriminatory acts resulted in her, and the other teachers, losing certain retirement benefits.

The basic question before the Appellate Division was whether Doyle's claim involved the vindication of an issue of public interest. The court decided Doyle's action did not involve any public interest. Rather, the essential element in the action was a private interest -- damages for lost retirement benefits Doyle claimed were due to her and her co-teachers. Accordingly, her failure to file a timely notice of claim could not be excused on the grounds that she was seeking to vindicate a public interest.

Because Doyle and other teachers who had joined her in the action did not satisfy the filing requirements set out in Education Law §3813(1), the Appellate Division concluded that the lower court had properly dismissed the action as it was "barred insofar as asserted against the Board of Education."

In Civil Service Employees' Association v Lakeland Central School District, Lakeland moved to dismiss the Association's action on the grounds that CSEA failed to file a timely §3813 notice of claim.

The District's motion to dismiss was denied by a New York State Supreme Court judge. When the District appealed, the Appellate Division affirmed the lower court's ruling. The Appellate Division explained that CSEA was not required to comply with Education Law §3813's requirements because the collective bargaining agreement contained a detailed grievance procedure waiving CSEA's duty to comply with that statutory requirement.

Although exceptions to the three-month requirement exist, it would seem prudent to file a timely notice of claim as set out in "notice statutes" such General Municipal Law §50-e, §50-i, and Education Law §3813 rather than attempt to persuade a court that it was not necessary to do so in a particular situation.

* Other "notice of claim" provisions are set out in law such as those mandated by Education Law §3813 and General Municipal Law §50-e. §50-e, however, excludes claims arising under the provisions of the Workers' Compensation Law, the Volunteer Firefighters' Benefit Law, and the Volunteer Ambulance Workers' Benefit Law, together with claims filed against public corporations by their own infant wards, from such notice of claim requirements.

The Mirro decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02154.htm

New appointments to New York State Governor Cuomo's administration

New appointments to New York State Governor Cuomo's administration

Source: Office of the Governor

On April 2, 2018, Governor Andrew M. Cuomo today announced the following new appointments to his administration.

  

Lindsey Boylan has been appointed Deputy Secretary for Economic Development and Special Advisor to the Governor. She previously served as Chief of Staff and Executive Vice President at Empire State Development. Prior to joining the agency, Lindsey spent several years in municipal finance, ultimately as Vice President, at RBC Capital Markets. Earlier, she served in an executive role steering operations and business development for three interconnected New York City business improvement districts, public-private partnerships best known for their restoration of Midtown's iconic Bryant Park. Lindsey also worked for noted urban planner Alexander Garvin, focusing on a master planning and management process for a 4,500-acre park in Memphis, Tennessee. She is a graduate of Columbia Business School and received her B.A. in Political Science from Wellesley College, where she was elected Student Body President. 

 

Michael Schmidt has been appointed Senior Economic Advisor to the Governor. Mr. Schmidt most recently served as Deputy Secretary for Economic Development, where he oversaw policy and operations for twelve state agencies and authorities, including Empire State Development, the Department of Taxation and Finance, the Division of Homes and Community Renewal, and the Department of State. Previously, Mr. Schmidt served as economic policy advisor to Hillary Clinton during in her 2016 presidential campaign, where he led the development of Secretary Clinton's agenda on financial regulation, trade, infrastructure, housing, small business, and economic development. He has also served in the Office of Domestic Finance at the U.S. Department of the Treasury and as a Senior Financial Analyst at the Yale Investments Office. He holds a J.D. and a B.A from Yale.

 

Zackary Knaub has been appointed First Assistant Counsel to the Governor. Mr. Knaub most recently served as Assistant Counsel to the Governor, handling energy and environmental matters. Before joining the Executive Chamber, Mr. Knaub served as Regional Attorney for the Department of Environmental Conservation, managing the Department's legal affairs for the lower Hudson River Valley. Prior to his state service, he was a partner in the Shlansky Law Group, a boutique commercial and environmental litigation law firm, and an associate in the New York City office of Beveridge & Diamond, P.C. He began his legal career as a pro se and motions law clerk for the United States Court of Appeals for the Second Circuit. He graduated cum laude from Cardozo Law School, and holds a M.A. from Columbia University, and a B.A. with honors from the University of Iowa.

 

Carolyn Pokorny has been appointed Special Counsel for Public Integrity. She most recently served as Chief Special Counsel for Ethics, Risk and Compliance. Previously, she served as Deputy Chief of Staff and Counselor to U.S. Attorney General Loretta E. Lynch. Prior, she spent nearly fifteen years with the U.S. Attorney's Office in Brooklyn, where she held a number of leadership positions, including Deputy Chief of the Criminal Division. She received the U.S. Attorney General's Award for Distinguished Service, and the Federal Prosecutor of the Year award from the Federal Law Enforcement Foundation. Ms. Pokorny began her career as a prosecutor in the Bronx District Attorney's Office and then clerked for federal judge Arthur D. Spatt on Long Island. She has a B.A. from New York University, and a J.D. from Brooklyn Law School.

 

Camille Joseph Varlack has been appointed Deputy Director of State Operations. In 2017, she was appointed New York State Chief Risk Officer and Special Counsel and will retain those titles. Ms. Varlack has served as deputy director for ethics, risk and compliance in the Executive Chamber and as a principal law clerk for the New York State Supreme Court. She has also served as Assistant Vice President and Counsel at AXA Financial, Inc. and as an Assistant District Attorney for the Kings County District Attorney's Office. Ms. Varlack holds a B.A. from the State University of New York at Buffalo and a J.D. from Brooklyn Law School.

 

Giancarlo Pellegrini has been appointed Assistant Counsel to the Governor. Mr. Pellegrini most recently practiced law at Sidley Austin LLP in Washington, D.C., and he previously served as an Empire State Fellow in the Governor's Counsel's Office. Mr. Pellegrini holds a J.D. from Harvard Law School and a B.A. from Lehigh University. 

 

Andrew Chan Wolinsky has been appointed Assistant Special Counsel for Public Integrity. Previously, he was an associate in the litigation departments of Sullivan & Cromwell LLP and Davis Polk & Wardwell LLP, where his practice focused on white-collar criminal defense, regulatory enforcement proceedings, and internal investigations. He clerked for the Honorable Jane R. Roth of the United States Court of Appeals for the Third Circuit and the Honorable Loretta A. Preska, Chief Judge of the United States District Court for the Southern District of New York. Mr. Wolinsky earned his J.D. from Fordham University School of Law and his B.A. from Tufts University. 

 

Abigail Belknap Seidner has been appointed Assistant Special Counsel for Public Integrity in the Executive Chamber. Prior to entering public service, Ms. Seidner began her legal career at Cooley LLP, where she represented numerous pro bonoclients in addition to her private litigation practice. Ms. Seidner previously served as a legal intern in the U.S. Attorney's Offices for both the Southern and Eastern Districts of New York and at the New York Civil Liberties Union. Ms. Seidner holds a B.A. from Pomona College and a J.D. from New York University School of Law.

 

Michael Donegan has been appointed General Counsel at the Justice Center for the Protection of People with Special Needs.  Mr. Donegan has been with the Justice Center since August of 2013, where he was appointed as the first Director of the Employee Discipline Unit, supervising a staff of attorneys who represented state oversight agencies at disciplinary arbitrations. Prior to coming to the Justice Center, Mr. Donegan served 16 years as the General Counsel at the State Commission of Correction. He is a graduate of SUNY Albany and Hofstra University School of Law.

 

Mark Noordsy has been appointed General Counsel and Deputy Commissioner at the Office of Mental Health. He most recently served as Deputy Counsel for Litigation at OMH. Previously, he served at the New York State Department of Health, and Office of the Medicaid Inspector General, after twenty-eight years of private practice. Mr. Noordsy received a B.A., magna cum laude, from St. Lawrence University, and a J.D., with honors, from George Washington University.

 

Karen Mintzer has been appointed General Counsel at the New York State Office of Parks, Recreation and Historic Preservation. Ms. Mintzer joined Parks from the New York State Department of Environmental Conservation, where she served as Regional Attorney - General Counsel for Region 2 (New York City). Previously, she was in private practice, most recently as special counsel at Kramer Levin Naftalis & Frankel. She holds a B.A. from Lafayette College and a J.D. from Georgetown University Law Center.   

 

Sumit Sud has been appointed Deputy Chief Special Counsel for Ethics, Risk and Compliance. In this new role, Mr. Sud will coordinate the statewide program for ethics, risk and compliance across agencies and authorities, working with the Special Counsel for Public Integrity and New York State's Chief Risk Officer. He will assume this role while continuing to act on his previous appointments as Special Counsel to the Director for the New York State Insurance Fund and the Commissioner to the New York Department of Labor. Prior to joining the state, Mr. Sud served as Senior Counsel at the New York City Law Department, where he had been for almost ten years. He holds a J.D. from Case Western Reserve University in Ohio and a B.S. from the University of Washington, Seattle. 

Diversity Management

Diversity Management

The New York State Department of Civil Service has issued General Information Bulletin (GIB) GIB 18-01, Use of the Diversity Management Option for the Professional Career Opportunities (PCO) Exam.

Text of General Information Bulletin 18-01 will be found at:

https://www.cs.ny.gov/ssd/Manuals/SPMM/GIBS/GIB18-01.cfm

If you wish to print General Information Bulletin 18-01, we offer a version in pdf format at:

https://www.cs.ny.gov/ssd/pdf/GIB18-01.pdf

An agency may decline to acknowledge that requested records exist in response to a Freedom of Information Law request

An agency may decline to acknowledge that requested records exist in response to a Freedom of Information Law request

Abdur-Rashid v NYC Police Department, 2018 NY Slip Op 02206, Court of Appeals

Hashmi v NYC Police Department, 2018 NY Slip Op 02206, Court of Appeals

The Chief Judge of the Court of Appeals described the issue presented in this appeal as follows: "May a public entity decline to acknowledge that requested records exist in response to a Freedom of Information Law request,  Public Officers Law §84 et seq. [FOIL], when necessary to safeguard statutorily exempted information."

A majority of the court held that the public entity may, affirming the Appellate Division's determination.

The court was split, in whole or in part, in this important decision, with the opinion by Chief Judge DiFiore in which. Judges Fahey, Garcia and Feinman concur while Judge Wilson dissented in part in an opinion and Judge Stein dissented in an opinion in which Judge Rivera concurs, the full text of decision, including Judge Wilson's and Judge Stein's opinions, are posted on the Internet.

Click on the following URL to access the decision:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02206.htm

The anatomy of an administrative disciplinary decision

The anatomy of an administrative disciplinary decision

Marentette v City of Canandaigua,, 2018 NY Slip Op 01764, Appellate Division, Fourth Department

The §75 disciplinary Hearing Officer found the Fire Chief [Chief] of the City of Canandaigua guilty acts of misconduct, having committed acts of insubordination by repeatedly violated the directive of his superior, making unauthorized entries on his subordinates' time sheets, and acts of incompetence by authorizing the expenditure of public funds on several occasions in violation of the City's procurement policies.

The Hearing Officer recommended that the Chief be demoted. The appointing authority determined that termination was warranted given the gravity of the misconduct, the Chiefs "disciplinary record," earlier "unsuccessful attempts at remediation," and the loss of trust in the Chief.

In response to the Chief's appeal of the decision of the appointing authority, the Appellate Division, sustained the actions of the disciplinary action Hearing Officer and the appointing authority and:

1. Rejected the Chief's argument that preponderance of the evidence is the applicable evidentiary standard in this case explaining that "It is well established that substantial evidence is generally the applicable evidentiary standard for disciplinary matters involving public employees under Civil Service Law §75, and that due process requires application of the preponderance of the evidence standard only "when the penalty of dismissal is accompanied by some added stigma." Here, said the court, there was nothing in the record suggesting that stigma has resulted from the Chief's termination in that he has not been "[effectively] prohibited from obtaining future . . . employment [as a firefighter or an officer of a fire department], or that he is subjected to a public registry of any sort";

2. Ruled that the determination that the Chief committed acts of insubordination and incompetence was supported by substantial evidence; i.e., by "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact.";

3. Said that the Chief's exculpatory explanations for his conduct raised an issue of credibility that the Hearing Officer was entitled to resolve against him.;

4. Was unpersuaded by the Chief's contention that the termination of his employment was unjustified under the circumstances, indicating that the court's review of the penalty imposed by the appointing authority "is extremely limited" does not include "any discretionary authority or interest of justice jurisdiction in reviewing the penalty imposed."; and

5. Citing Kelly v Safir, 96 NY2d 32, [rearg denied 96 NY2d 854], concluded that the penalty of termination was "not so disproportionate to the offense[s] as to be shocking to one's sense of fairness"  and thus "did not constitute an abuse of discretion as a matter of law ... particularly in light of [the Chief's] conduct underlying the charges and his history of disciplinary infractions during his tenure as Fire Chief."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01764.htm

Jurisdictional classification and reclassification of positions in the Classified Service

Jurisdictional classification and reclassification of positions in the Classified Service

Spence v New York State Department of Civil Service, 2017 NY Slip Op 08570, Appellate Division, Third Department

Jurisdictional classification involves the assignment of positions in the classified service to the competitive, non-competitive, exempt or labor classes.* In contrast, position classification is a grouping of positions, under common and descriptive titles, that are substantially similar in the essential character and scope of their duties and responsibilities and in the qualifications for appointment to such positions.

In this Article 78 action, Wayne Spence, as President of the New York State Public Employees Federation, [PEF], challenged the decision of the New York State Civil Service Commission [Commission] placing positions of "Empire Fellow" in the State's Empire Fellow Program in the noncompetitive class.

The Empire Fellow Program was created as part of an initiative to recruit and train professionals for policy making roles in state government. Empire Fellows work for two years under the auspices of the Office of General Services [OGS], which assigns them to perform work under senior officials throughout New York State's Executive branch of government that involves the formulation, preparation and execution of high-level projects.

Initially the Commission placed these positions in the exempt class. Subsequently OGS asked the Commission to jurisdictionally reclassify these positions to "Empire Fellow in the noncompetitive class" of the Classified Service and to reflect this change in it Rules for the Classified Service.

PEF opposed the jurisdictional reclassification of these positions and commenced this CPLR Article 78 proceeding. Supreme Court dismissed the petition and PEF appealed the ruling.

The Appellate Division affirmed the lower court's ruling, explaining Administrative determinations concerning position jurisdictional classifications are subject to only limited judicial review and will not be disturbed in the absence of a showing that the decision is "wholly arbitrary or without any rational basis."

Although, said the court, it is "well settled that appointments and promotions within the civil service system must be merit-based and, when 'practicable,' determined by competitive examination," the Commission may nevertheless place a title in the noncompetitive class where "it is impracticable to determine merit and fitness ... by competitive examination." In addition, opined the Appellate Divisions, impracticability could arise "due to either the confidential nature of the position or because the character of the position renders an examination inadequate to measure the qualifications of the prospective employee."

The Appellate Division noted that the "knowledge, skills and abilities" needed to analyze and develop policy could be assessed by competitive examination and titles involving those skills have been classified as being in the Competitive Class and candidates for appointment to such positions have been tested for such skills. But, said the court, "A competitive examination could not discern ... whether a potential fellow had the 'diplomacy, sound judgment and discretion' needed to both responsibly handle restricted information and maintain the trust of the senior appointed officials with whom he or she would closely work."

Also noted was the fact that "new fellows would need to be selected every two years"** which OGS contended made competitive testing impracticable due to respondent Department of Civil Service's "lack of experience in testing for fellowship-type positions, and the conflict between the two-year [f]ellow appointment cycle and the time and resources needed to develop a new competitive testing regimen."

These factors, said the court, provide a rational basis for the Commission's jurisdictional  classification of the Empire Fellow title as positions in the noncompetitive class and that it would "not interfere with its judgment" despite "a substantial variance of opinion" as to the best jurisdictional classification.

Another aspect of jurisdictional reclassification” of a position is the status of the individual in the newly jurisdictionally reclassified position. For example, should a position in the noncompetitive class jurisdictionally be reclassified to the competitive class, in Fornara v Schroeder, 261 NY 363, the Court of Appeals held that if the then incumbent held tenure in the noncompetitive class position, he or she will be continued in service as a tenured permanent employee in the competitive class position without further examination.

In addition, an employee in the classified service may retain certain statutory rights upon the changing of the jurisdictional classification of his or her position from the classified service to the unclassified service. For example, §355-a.10.a. of the Education Law, in relevant part, provides that “The incumbent of any position in the classified service which is determined to be in the unclassified service shall … retain the rights and privileges of the classified service jurisdictional classification with respect to discipline, dismissal and suspension for as long as such person remains in the redesignated position.”

* Positions in the Classified Service,  Civil Service Law §§41-44, are deemed to be in the Competitive Class unless placed, or approved for placement, in another jurisdiction class by the Civil Service Commission or otherwise so designated by law. §35 of the Civil Service Law addresses position in the Unclassified Service.

** §41.2 of the Civil Service Law, in pertinent part, "Upon the occurrence of a vacancy in any position in the exempt class, the state or municipal civil service commission having jurisdiction shall study and evaluate such position and, within four months after the occurrence of such vacancy, shall determine whether such position, as then constituted, is properly classified in the exempt class. Pending such determination, said position shall not be filled, except on a temporary basis.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_08570.htm

Fiscal stress remains low among villages

Fiscal stress remains low among villages
Ten Villages, Two Cities Cited in Latest Fiscal Stress Scoring

Click on text highlighted in color to access the full report.

State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System has identified 10 villages and two cities in New York in some level of fiscal stress in 2017. The system evaluated all non-calendar year local governments and designated one village and one city in “significant fiscal stress,” four villages in “moderate fiscal stress” and five villages and one city as “susceptible to fiscal stress.”

“Our indicators show fiscal stress is relatively low among New York's villages,” said DiNapoli. “I continue to encourage local officials to be mindful about how practices today might impact budgetary solvency in the future. Our monitoring system helps keep local officials and the public informed on this important community issue each year, including the economic and demographic drivers of fiscal stress.”

DiNapoli’s office evaluated 529 villages, which predominantly have a fiscal year ending on May 31. The most recent round of scoring also assessed the 17 cities in New York with non-calendar fiscal years.

This is the fifth year DiNapoli’s office has assessed levels of fiscal stress in local governments. Using financial indicators that include year-end fund balance, cash position, short-term borrowing and patterns of operating deficits, DiNapoli’s monitoring system creates an overall fiscal stress score which ultimately drives final classifications.

For the fiscal year ending 2017, the city of Long Beach (Nassau Co.) and the village of Island Park (Nassau) were designated in “significant fiscal stress.”

The villages of Andover (Allegany), Ellenville (Ulster), Granville (Washington) and Valley Stream (Nassau) were listed in “moderate fiscal stress.” The city of Yonkers (Westchester) and the villages of Baldwinsville (Onondaga), Canisteo (Steuben), Catskill (Greene), Dering Harbor (Suffolk) and Walden (Orange) were designated as “susceptible to fiscal stress.”

The fiscal stress scores also show that in 2017:

Three villages moved out of fiscal stress and four villages moved into a fiscal stress category; and

Forty-four villages failed to file the necessary and required annual financial reports and did not receive a score.

In January, DiNapoli released fiscal stress scores for school districts. In September, his office will release scores for municipalities with a calendar-year fiscal year, which includes all counties, towns, 10 villages, and the majority of cities.

DiNapoli's office recently implemented system enhancements which were developed with direct input from local government and school district officials. The changes provide local officials with more easy-to-understand information that can help them address specific challenges facing their communities.

For a full list of villages and cities in fiscal stress, visit:

http://www.osc.state.ny.us/localgov/fiscalmonitoring/localgovernments/munis-stressed.htm

To search the complete list of fiscal stress scores, visit:

http://wwe1.osc.state.ny.us/localgov/fiscalmonitoring/fsms.cfm

Distinguishing between official acts and unofficial acts for the purposes of claiming qualified immunity from lawsuits in New York State courts

Distinguishing between official acts and unofficial acts for the purposes of claiming qualified immunity from lawsuits in New York State courts

Zervos v Trump, NYS Supreme Court, Index No. 150522/17

Judge Jennifer G. Schecter, citing Clinton v Jones, 520 US 681 [Clinton], held that a sitting president is not immune from being sued in state courts for unofficial acts* and denied President Donald J. Trump's [Defendant] motion to dismiss Summer Zervos' [Plaintiff] petition.

Plaintiff had alleged that in 2007 Defendant had subjected her to unwelcome "sexually inappropriate misconduct" and then defamed her after she had "publicly described her interactions with [Defendant] in detail, including his unwanted sexual misconduct" at a press conference on October 16, 2016.

Plaintiff alleged later that same day, Defendant responded in a statement that was widely reported and appeared on his campaign website that "[t]o be clear, I never met [Plaintiff] at a hotel or greeted her inappropriately a decade ago. That is not who I am as a person and it is not how I've conducted my life." Subsequently Defendant stated Plaintiff's "allegations are 100% false". . They are made up, they never happened ..." at campaign rallies.

A false statement tending "to expose a person to public contempt, hatred, ridicule, aversion or disgrace constitutes defamation" and in this action Plaintiff alleged that the public statements made by the Defendant that Plaintiff's "allegations are 100% false ... They are made up, they never happened" constitute defamation.

The court explained that "No one is above the law" and as the Supreme Court held in Clinton, "the President of the United States has no immunity and is 'subject to the laws' for purely private acts." Any such immunity was grounded "the nature of the function performed, not the identity of the actor who performed it."

Then-President William Jefferson Clinton was required to defend himself against a civil-rights action that included a state-law defamation claim in federal court and the Supreme Court rejected Clinton's argument that "interactions between the Judicial Branch and the Executive, even quite burdensome interactions, necessarily rise to the level of constitutionally forbidden impairment of the Executive's ability to perform its constitutionally mandated functions" and the rule is no different with respect to commencing litigation related to a  President's unofficial conduct in a state court.

The court noted that in Davis v Blenheim, 24 NY3d 262 , the New York State Court of Appeals determined that a defamation action could be maintained against a defendant who called individuals claiming to have been victims of sexual abuse liars and stated that he believed that they were motivated by money to go public. The Court concluded that the statements were susceptible to a defamatory connotation because they communicated that defendant had information unknown to others that justified his statements that the individuals were neither credible nor victims of abuse.

Judge  Schecter opined that "Defendant -- the only person other than plaintiff who knows what happened between the two of them -- repeatedly accused plaintiff of dishonesty not just in his opinion but as a matter of fact. He not only averred that plaintiff told 'phony stories' and issued statements that were 'totally false' and 'fiction,' he insisted that the events 'never happened' and that the allegations were '100% false [and] made Up.'" The court said that "[a]  reader or listener, cognizant that Defendant knows exactly what transpired, could reasonably believe what Defendant's statements convey: that Plaintiff is contemptible because she 'fabricated' events for personal gain."

Referring to the means of communication used by Defendant, the court said the "[m]ost importantly, in their context, Defendant's repeated statements -- which were not made through op-ed pieces or letters to the editor but rather were delivered in speeches, debates and through Twitter, a preferred means of communication often used by Defendant -- cannot be characterized simply as opinion, heated rhetoric or hyperbole." Further, the fact that Defendant's statements about Plaintiff's veracity were made while he was campaigning to become President of the United States, "does not make them any less actionable."

Accordingly, Judge Schecter ruled that the Plaintiff's complaint sufficiently stated a cause of action.

* The distinction made between "official actions" and "personal activities" is reflected in §17 [Defense and indemnification of state officers and employees in civil actions]; §18 [Defense and indemnification of officers and employees of public entities in civil actions]; and §19 [Reimbursement of defense costs incurred by or on behalf of state employees in criminal action] of the Public Officer Law. Essentially these sections provide that the employer shall provide for the defense and indemnification of the officer or employee in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the officer or employee was acting within the scope of his or her public employment or duties.

The decision is posted on the Internet at:

https://www.politico.com/f/?id=00000162-44a5-de1c-abfe-6cbd18470002

Review of decisions that are the product of compulsory arbitration are subject to stricter judicial scrutiny than decisions resulting from voluntary arbitration procedures

Review of decisions that are the product of compulsory arbitration are subject to stricter judicial scrutiny than decisions resulting from voluntary arbitration procedures
Berkley v New York City Dept. of Educ., 2018 NY Slip Op 01669, Appellate Division, First Department

The standard of review mandated by Education Law §3020-a(5)(a) is that set out in  CPLR Article 75. Article 75 provides that an arbitration award may be vacated only on a showing of misconduct, bias, exceeding of power or procedural defects as set out in 7511(b)1.* Further, where the arbitration is compulsory, as it is with respect to appeals from a §3020-a administrative disciplinary decision, judicial scrutiny is stricter than applicable in reviewing a determination resulting from a voluntary arbitration proceeding.

Supreme Court granted the New York City Department of Education's [Education] motion to confirm a §3020-a hearing officer's award terminating an educator's [Educator] employment as a school teacher with Education. Educator appealed the Supreme Court's decision, which ruling was unanimously affirmed by the Appellate Division.

Educator had argued that his due process rights were violated because [1] a specification in the charges filed against him "did not allege the specific date of the misconduct" and [2] the hearing officer improperly relied on hearsay evidence that included out-of-court statements by students.

The Appellate Division indicated that with respect to specification in charges that did not indicate the specific date or dates of the alleged misconduct, due process in the context of administrative hearings requires only that the charges be "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him [or her] . . . and to allow for the preparation of an adequate defense."

The Appellate Division held that Supreme Court had properly found that Educator's due process rights were not violated by the failure to specify the date he was alleged to have engaged in the charged misconduct in that he was provided with enough information to mount an adequate defense. Moreover, at the hearing, he did not indicate any vagueness with regard to the incident, since he knew the name of the student who made the complaint and had received statements by other students in the room at the time.

With respect to Educator's claim that his due process rights violated by the hearing officer's partial reliance on hearsay evidence , the Appellate Division explained that hearsay evidence may be the basis of an administrative determination, as Educator had himself acknowledged. Further, noted the court, the challenged hearsay evidence "was supported by the testimony of various school administrators and aides," who were subject to cross-examination by Educator.

In addition, the Appellate Division held that Supreme Court had correctly concluded that the hearing officer's decision was supported by the record, in that ample evidence, including Educator's admissions, supported the finding of the hearing officer and that the  hearing officer was entitled to reject Educator's explanations based on an assessment of Educator's credibility.

As to the penalty imposed, the termination of Educator's employment with Education,  the Appellate Division held that the penalty imposed "does not shock the conscience in light of the seriousness of the misconduct and [Educator's] failure to heed warnings."

* The First Department noted that it has applied a "hybrid" standard which incorporates the arbitrary and capricious test in CPLR article 78 as well.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_01669.htm

Employee's claim of constructive dismissal as a result of taking FMLA leave dismissed

Employee's claim of constructive dismissal as a result of taking FMLA leave dismissed

Groening v Glen Lake Community School, USCA, Sixth Circuit, Docket #17-1848

Joan Groening, the superintendent of Glen Lake Community Schools, underwent surgery that required her taking six weeks of Family and Medical Leave Act,  [FMLA] leave. She then returned to work part-time. Later Groening's elderly mother fell ill and Groening took intermittent FMLA leave to care for her throughout the rest of the school year.

When the board told her that it was "hesitant to approve her travel plans for an upcoming conference" Groening submitted a "notice of retirement" to take effect at the end of the following academic year. 

Groening’s contract provided for ninety days of paid leave per year and a payout for any unused days when she retired and asked Groening for a report of the leave she had taken during the then current school year. Groening 's report indicated that her absences on leave, vacation, and business trips totaled twelve weeks. When the board told her that it was "hesitant to approve her travel plans for an upcoming conference" Groening submitted a "notice of retirement" to take effect at the end of the following academic year.

Deciding that it needed to clear up any discrepancies in Groening's leave records before the end of the following school year, the school board voted "to audit the district’s business office"  in order to determine, among other things, any discrepancies in Groening's leave records  before the end of the following school year." 

Groening decided not to wait until the end of the following school year as she had planned and she resigned the day before the auditors sent their report to the board. In her resignation she stated that she had no choice but "to step aside" because of the board’s continued "intent to retaliate against her for her lawful use of leave" and a short time later filed this lawsuit, contending that board retaliated against her because she went on medial leave, which she alleged constituted a violation of FMLA.

FMLA provides that an eligible employee may claim up to twelve weeks of unpaid, job-protected leave per year in connection with, among other things, the employee's recovering from a serious health condition or to care for an immediate family member with a serious health condition. Further, the Act prohibits employers from retaliating against employees who take FMLA leave, or otherwise interfering with their right to do so. 

The federal district court,  finding that Groening could not show she had suffered an adverse employment action as the result of her taking FMLA leave, granted the school district's motion for summary judgment and dismissed Groening's petition. Groening appealed.

The Sixth Circuit Court of Appeals said that to establish a prima facie case that the school district violated  FMLA  Groening was required to show that the board knew she was engaged in FMLA-protected activity and subjected her to an adverse employment action because of it.  Here, said the court, Groening "concedes that the board did not fire, demote, or discipline her for taking leave" but rather she contends that she was constructively discharged. Noting that the Doctrine of Constructive Discharge "is hard to prove," the court explained that in order to prevail in an action alleging constructive discharge the employee must show that  his or her working conditions were objectively intolerable and that her employer deliberately created those conditions  in hopes that they would force her to quit. In contrast, the court observed that the Doctrine does not protect employees who leave their job “in apprehension that conditions may deteriorate later.”

To show that her working conditions were objectively intolerable, Groening claimed that the board [1] subjected her to months of hostility because it believed her absences "was holding up the school district’s business;" [2] "spearheaded an audit that was designed to find evidence of wrongdoing"  and [3] continued to complain that she was not doing her job and was “wasting [its] time” thereby giving her "no choice but to resign."

The court opined that these conditions, even viewed in the light most favorable to Groening, fell far short of showing constructive discharge, explaining that the Sixth Circuit has repeatedly held that an employer’s criticism of an employee does not amount to constructive discharge —"especially when the employer’s criticism is limited to a few isolated incidents, as it was here."

Further, said the Circuit Court, "employers are permitted to investigate their employees for wrongdoing, including wrongdoing related to protected leave." Indeed, notes the decision, "neither an internal investigation into suspected wrongdoing by an employee nor that employee’s placement on paid administrative leave pending the outcome of such an investigation constitutes an adverse employment action”

Concluding that Groening had failed to raise a genuine issue of material fact as to whether her working conditions were objectively intolerable and thus she could not show that she was constructively discharged, the Circuit Court sustained the district court's ruling granting the school board's motion for summary judgment on Groening's retaliation claim.

As to Groening contention that the board interfered with her right to take leave, to a survive a motion summary judgment on this claim Groening must show that (1) she was an eligible employee, (2) the board was a covered employer, (3) she was entitled to take leave, (4) she gave the board notice of her intent to take leave, and (5) the board denied her FMLA benefits or interfered with her FMLA rights. Groening, said the court, failed to establish a genuine issue of material fact with respect to the 5th element required to be demonstrated and sustained the lower court's granting summary judgment in the school district's favor on this branch of Groening's action as well.

Finally, the Circuit Court observed that Groening's remaining arguments "fare no better" and dismissed her appeal.

The decision is posted on the Internet at:

http://www.opn.ca6.uscourts.gov/opinions.pdf/18a0049p-06.pdf