Summary dismissal during a disciplinary probation period

Summary dismissal during a disciplinary probation period
Williams v NYSOMH, 259 AD2d 623

Disciplinary charges were filed against Henry Williams, an employee of the New York State Office of Mental Health, alleging that he was guilty of excessive absenteeism.

The disciplinary action was settled when Williams agreed to serve a disciplinary probation period during which period he could be terminated “without recourse to Article 33 of the State-CSEA Agreement [a negotiated disciplinary grievance procedure] or any other provision of law.”

Williams was absent from work seven times during the six-month period following the execution of the settlement agreement. The department terminated him and he commenced an Article 78 proceeded seeking reinstatement to his former position. The Appellate Division dismissed Williams’ petition, commenting that “a probationary employee may be terminated without a hearing and without a statement of reasons provided that the termination is not in bad faith, or for unconstitutional or illegal reasons.” Further, the decision notes, Williams had the burden of proving that his dismissal was based on bad faith or unlawful conduct.

However, the specific terms of a disciplinary settlement could prove critical if the employee is terminated for his or her alleged failure to satisfy the terms of his or her disciplinary probation.

In Taylor v Cass, 505 N.Y.S.2d 929, a Suffolk County employee won reinstatement with full retroactive salary and contract benefits after a court found that he was improperly dismissed while serving a disciplinary probation. It seems that under the terms and conditions of the probation to which Taylor had agreed, the county could terminate him without any hearing if, in the opinion of his superior, his job performance was “adversely affected” by his “intoxication on the job” during the next six months.

Taylor, while subject to this probationary period, was terminated without a hearing for “failing to give a fair day’s work” and “sleeping during scheduled working hours.” He challenged his dismissal and won reinstatement with back salary. The Appellate Division decided that Taylor’s dismissal was improper because Taylor was not terminated for the sole reason specified in the settlement: intoxication on the job.

In contrast, a state corrections officer, Tina Ramos, agreed to pay a $1,000 fine and be placed on disciplinary probation for one year in settlement of disciplinary charges filed against her alleging improper behavior while escorting a prisoner. She was subsequently observed carrying her weapon in a hospital examination room in violation of departmental rules. The Appellate Division sustained her termination without a hearing, finding that Ramos had violated the terms of her disciplinary probation (Ramos v Coombs, App Div, 237 AD2d 713).
NYPPL

Employee disciplined for alleged acts of misconduct that took place 20 years earlier

Employee disciplined for alleged acts of misconduct that took place 20 years earlier
DeMichele v Greenburgh CSD #7, 167 F.3d 784

Section 3020-a(1) of the New York State Education Law provides that “no charges ... shall be brought more than three years after the occurrence of the alleged incompetency or misconduct, except when the charge is of misconduct constituting a crime when committed.”*

In the DeMichele case, a teacher in the Greenburgh Central School District #7 was found guilty of having inappropriate sexual contact with female students in incidents occurring more than 20 years earlier. The Second Circuit U.S. Court of Appeals sustained the school board’s decision to dismiss the teacher, even though the teacher had not been convicted of any “criminal act.”

Following the same logic as New York State courts that have addressed similar issues involving statutes of limitation under various disciplinary provisions, the federal court observed that the law does not require the individual to be found guilty of a felony in a criminal court for disciplinary charges to be filed after the three-year statute of limitations has expired.

Rather, the law merely characterizes the nature of the allegation. The law says that if a Section 3020-a hearing officer or disciplinary panel finds an individual guilty of an act that fits the definition of a felony under relevant criminal statutes, then a penalty may be imposed even if the disciplinary charges were brought after the three-year statute of limitations has expired (see Re Board of Education of City School District of the City of New York, Opinions of the Commissioner of Education No. 11353.**

The 20-year-old sexual misconduct charges arose after a newspaper reported that Greenburgh #7 teacher Robert DeMichele had been restored to the payroll in 1996 after serving one and one-half year disciplinary suspension. The article noted that the suspension without pay was imposed as a penalty after DeMichele was found guilty of having inappropriate conduct with female students during the 1991-92 and 1992-93 academic years.

After the article appeared, two women contacted district officials and alleged that DeMichele had sexually abused or molested them when they had been students in the district decades earlier -- during the 1972-73 and 1974-75 school years.

There was no dispute that the district was unaware of these allegations prior to its receiving the February 1996 reports. On March 11, 1996, the district initiated a second Section 3020-a disciplinary action against DeMichele. The hearing officer found DeMichele guilty of all but one of seven specifications set out in the charges. As a result, DeMichele was dismissed. The disciplinary determination was reported to the press.

The hearing officers ruled that (1) each instance of misconduct alleged in the second disciplinary proceeding constituted a crime when committed and (2) Section 3020-a does not require that the misconduct actually be the subject of a criminal prosecution. Rather than appeal the hearing officer’s determination, DeMichele sued in federal district court claiming that the second disciplinary action violated his rights under 42 USC. Section 1983. He contended that his rights were violated because:

1. The district forced him to defend charges concerning events that occurred more than 20 years ago, which left him unable to defend himself in violation of his right to due process under the Fourteenth Amendment; and

2. He was deprived of a liberty interest without due process under the Fourteenth Amendment when the district’s prosecutor disclosed the results of the hearing to the media.

In an unpublished decision, a federal district court judge granted the district’s motion for summary judgment and thus dismissed DeMichele’s petition without a hearing on the merits of the complaint. The Circuit Court of Appeals affirmed the lower court’s decision.

The Circuit Court said that to show a violation of due process as a result of delay in a hearing, New York State law requires the subject of an administrative disciplinary proceeding demonstrate that delay in initiating proceedings caused “actual prejudice” to his or her ability to defend against the charges. The court suggested that if the school district had known about the 1970s allegations before 1996 but delayed proceeding with discipline, DeMichele might have been able to show that his ability to defend himself had been compromised.

The court also addressed DeMichele’s claim that the dissemination to the media of the results of his second disciplinary hearing stigmatized him and wrongfully deprived him of his liberty interest under the Fourteenth Amendment. The court noted that this argument rested on the assumption that the results of the disciplinary proceeding were not a matter of public record, but instead were part of his “employment history” which could not be released under New York’s Freedom of Information Law, [Public Officers Law, Article 6, (“FOIL”)].

However, the decision noted that New York courts have found that the disposition of misconduct charges does not constitute part of an employee’s “employment history” as that phrase is used in FOIL, citing LaRocca v. Board of Educ. of Jericho Union Free School District, 632 N.Y.S.2d 576. The Circuit Court ruled that under the circumstances, the dissemination of the background and result of the first disciplinary hearing to the press did not deprived DeMichele of any liberty interest and dismissed the appeal.

* Section 75 of the Civil Service Law, a statutory disciplinary procedure covering employees in the classified service, also provides that there is no statute of limitations with respect to bringing disciplinary action against an individual where the charges of incompetency or misconduct “constitute a crime.”

** Section 3020-a(1) of the Education Law also requires that disciplinary charges be filed “during the period between the actual opening and closing of the school year” during which the employee is normally required to serve.
NYPPL

Potential conflict of interest between official duties and private business should be eliminated by appointing authority

Potential conflict of interest between official duties and private business should be eliminated by appointing authority
Informal opinion of the Attorney General 98-39

A part-time village police officer also conducted a towing business. When asked if the officer’s towing business could be included on the village police force’s list of towing companies, the Attorney General said it could be listed, “provided the village takes appropriate steps to eliminate any potential conflicts of interests.”

The Attorney General said that an appearance of impropriety would be created if the police officer’s towing service were called when that officer is at the scene of an accident. Further, a conflict of interest would arise if village police officers recommended their colleagues’ business to individuals in need of towing services rather than resort to the list.
NYPPL

Adverse grievance decision not proof the union failed to provide adequate representation absent proof that the union acted arbitrarily or in bad faith

Adverse grievance decision not proof the union failed to provide adequate representation absent proof that the union acted arbitrarily or in bad faith
Rosioreanu v New York City Off. of Collective Bargaining, 2010 NY Slip Op 07797, Decided on November 4, 2010, Appellate Division, First Department

Upon conclusion of a grievance procedure that resulted in her termination, Cleopatra Rosioreanu filed an improper practices petition with the New York City Office of Collective Bargaining [OCB] contending that her union failed to provide adequate representation throughout the grievance process.

OCB denied the petition and Rosioreanu filed an Article 78 proceeding challenging OCB’s determination.

The Appellate Division said that Rosioreanu’s Article 78 petition advanced the theory that because the grievance process ended with her termination, her union representatives must have acted arbitrarily, capriciously or in bad faith.

The court characterize Rosioreanu’s claim as a “conclusory assertion,” commenting that there was nothing in the record that suggests malfeasance by the union representatives, much less fraud, deceitful action, dishonest conduct or discrimination on the part of union representatives, citing Mellon v Benker, 186 AD2d 1020.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07797.htm
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Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)

Retirement System has the burden of rebutting the statutory presumption set out in the so-called “Heart Bill,” RSSL §507-b(c)
Matter of Rivera v DiNapoli, 2010 NY Slip Op 07852, Decided on November 4, 2010, Appellate Division, Third Department

Although typically an applicant for accidental disability retirement benefits or performance of duty disability benefits has the burden of proof with respect to showing that his or her disability resulted from the performance of his or duties, such is not always the case.

For example, the Retirement and Social Security Law §507-b(c) sets out a rebuttable presumption that where an individual has "successfully passed a physical examination on entry into service as a correction officer" that did not reveal evidence of heart disease and later becomes disabled as the result of a heart condition sustained during employment, it is presumed that the disability was "incurred in the performance and discharge of duty, unless the contrary be proved by competent evidence."

Juan C. Rivera’s had successfully passed his physical examination when he began his employment as a correction officer. He subsequently suffered a myocardial infarction after falling ill while at work.

When it was determined that he could not return to work because of his resulting medical condition, Rivera applied for performance of duty disability retirement benefits.

The New York State and Local Retirement System [ERS], however, denied his application, concluding that although Rivera was permanently incapacitated, his disability "was not sustained as a result of the performance or discharge of his . . . duties."

Ultimately the Comptroller sustained the ERS’s denial of his application for benefits and Rivera filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Comptroller’s determination.

Under the circumstances, said the Appellate Division, ERS had the obligation to rebut the statutory presumption that Rivera's disability occurred as a result of his performance and discharge of his duties as a correction officer.

The Appellate Division concluded that ERS had rebutted the presumption that Rivera’s disability was related to his employment as a correction officer by presenting evidence of risk factors coupled with expert testimony that excludes an applicant's employment as a causative factor" and sustained the Comptroller’s decision.

The court said that considering the record as a whole, it found that ERS had “effectively rebutted” the presumption set out in RSSL §507-b(c) and thus Rivera’s application for benefits was properly denied.

The record indicated that ERS had relied on the opinion of a cardiologist who, after examining Rivera, concluded that while work-related stress "can aggravate the symptoms of coronary artery disease," Rivera's coronary artery disease "was not related to his employment as a correction officer." The cardiologist made reference to the fact that Rivera suffered from a variety of risk factors commonly associated with coronary heart disease, including obesity and hypertension.

The Appellate Division said that it had previously held "the [statutory] presumption is effectively rebutted when evidence of risk factors is coupled with expert testimony that excludes an applicant's employment as a causative factor," citing Bryant v Hevesi, 41 AD3d at 932.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07852.htm
NYPPL

Independent contractors in the public service

Independent contractors in the public service
Roesch v BOCES, App Div, 259 AD2d 900

The Roesch case is another in a series of actions involving claims for retroactive membership in a public retirement system.

Dorothy E. Roesch claimed that her service as a school psychologist with the Wayne-Finger Lakes BOCES qualified her for retroactive membership in the New York State Teachers’ Retirement System [TRS]. BOCES had rejected Roesch’s application on the grounds that she was a consultant on a per diem basis serving as an independent contractor and therefore she was ineligible to join TRS during the time in question.

The decision indicated that there were neither payroll or personnel records nor any formal appointment action by BOCES to employ her.

In contrast, such types of records were produced concerning others serving in similar positions indicating that such personnel “were formally appointed” to positions as employees of BOCES. Was this sufficient to support the conclusion that Roesch served as an independent contractor rather than as a BOCES employee?

The Appellate Division ruled that it was, sustaining BOCES’ rejection of Roesch’s application. The court said that there was rational basis for this determination, noting that the BOCES’ minutes of board meetings during the relevant period established that BOCES had a pattern and practice of making formal appointments of full and part-time employees.

The court said that the minutes “were devoid of any reference to the appointment of Roesch during this period when other school psychologists were so appointed by BOCES.”

This, coupled with the lack of any [IRS payroll withholding] W-4 forms that were completed by Roesch while others were produced for school psychologists employed near the relevant time period, “provides a rational basis to support the denial of Roesch’s application for retroactive membership in TRS based on her status as an independent contractor.”

The decision is silent as to whether or not BOCES produced copies of “an employment contract” between it and Roesch or copies of IRS Forms 1099, Miscellaneous to support its position that Roesch was an independent contractor rather than an employee. Typically, an individual providing personnel services to a public entity is deemed to be a public employee unless a contract for “personnel services” is authorized under law and a contract providing for such services has actually been executed by the parties.

In another application for retroactive membership in TRS case, Storrar v Mahopac Central School District, 257 AD2d 628, [motion to appeal denied, 93 NY2d 808], that the statement of the school district’s former payroll clerk that she and Barbara Storrar, a former member of TRS, discussed “FICA [Social Security] deductions versus reenrollment” in TRS was sufficient to establish that the district had “procedure that a reasonable person would recognize as an explanation or request requiring a formal decision ... to join a public retirement system” in place.
NYPPL

Appointing authority may imposed a harsher disciplinary penalty than one recommended by a hearing officer if not disproportionate to the offense

Appointing authority may imposed a harsher disciplinary penalty than one recommended by a hearing officer if not disproportionate to the offense
Russo v Wantagh UFSD, 259 AD2d 703

Smoky conditions prompted school officials of the Wantagh school district to evacuate students from a school building. Investigation showed the fire began in the custodians’ area of the school and was caused by cigarettes igniting waste paper in a plastic trash pail that had not been emptied.

The school board dismissed custodian Clement Russo after he was found guilty of “charges of misconduct and incompetence concerning a smoke condition in the school at which he was employed.” Russo appealed.

The Appellate Division sustained the district’s determination, finding that it was supported by substantial evidence in the record.

Russo also protested his dismissal on the grounds that the hearing officer had recommended a lesser penalty. The court said that “under the circumstances of this case, the termination of [Russo’s] employment was not so disproportionate to the offense as to shock one’s sense of fairness,” quoting the Pell standard in imposing a penalty [Pell v Bd. of Ed., 34 NY2D 222].
NYPPL

Employer fined after docking employee’s pay for jury duty absence
People v Rosenbach, Nassau Co. Ct. [Justice DeMaro], [Not selected for publication in the Official Reports]

From time to time a public employee is called to serve on jury duty. The attendance rules for state officers and employees [4 NYCRR 28.1.9], for example, grants employees “leave with pay without charge to leave accruals” when called upon for jury service. Other jurisdictions provide for similar benefits.

In contrast, penalizing an employee for performing his or her civic duty by reporting for jury duty can be expensive, as attorney Ann Rosenbach has learned. Rosenbach was fined $1310 for criminal contempt after she docked one and one-half weeks of pay from the salary of an attorney in her employ when the attorney was called for jury duty.*

State Assistant Attorney General Jennifer Brand, who prosecuted the case, said “this may be the first time an employer was held in criminal contempt for ‘penalizing’ an employee called to serve on jury duty.

* Lynn Weit, who worked as an attorney in Rosenbach’s law office, received a jury summons and informed Rosenbach that she would be absent from work for an expected two days to fulfill her civic obligation.
NYPPL

Fitness of a witness determined by the credibility of his or her testimony

Fitness of a witness determined by the credibility of his or her testimony
Goodman v Safir, 259 A.D.2d 344

In the Goodman case, the Appellate Division considered the value of testimony provided by “corrupt former employees” called by the employer as witnesses against another employee in a disciplinary action.

New York City police officer Keith Goodman was terminated from his position after being found guilty of participating in unlawful searches in violation of the Fourth Amendment to the U. S. Constitution on a number of occasions. Goodman challenged his dismissal, contending that there was no substantial evidence supporting the Commissioner’s action because, Goodman alleged, a number of the witnesses testifying against him were corrupt former police officers.

The Appellate Division dismissed Goodman’s appeal, commenting that it found “no reason to disturb [the Commissioner’s] credibility findings rejecting [Goodman’s] version of the events.” The fact that some of the witnesses testifying for the employer were characterized by Goodman as “corrupt former police officers” did not mean that their testimony was not “substantial” insofar as the Appellate Division was concerned.

Finding that the penalty of dismissal did not shock its sense of fairness, the Appellate Division sustained the commissioner’s determination and his terminating Goodman from his position.
NYPPL

Court annuls penalty imposed after finding appointing authority failed to investigate before taking disciplinary action against individual

Court annuls penalty imposed after finding appointing authority failed to investigate before taking disciplinary action against individual
Matter of Titone v Rocky Point Fire Dept., 2010 NY Slip Op 33037(U), October 25, 2010, Supreme Court, Suffolk County, Judge Jeffrey Arlen Spinner [Not selected for publication in the Official Reports]

Joseph A Titone filed a petition “in the nature of mandamus” pursuant to Article 78 of the CPLR challenging his suspension from his position as Captain of Company One of the Rocky Point Volunteer Fire Department and asked the court to direct the Board of Commissioners of the Fire Department to annul its action and to expunge the suspension from his record.

The genesis of Titone’s suspension was a letter he wrote to John Celentano, Chief of Rocky Point Fire Department, in which Titone indicated that a department rescue boat was out of service for “work that should have been performed off season” and a Company One fire truck was allowed to remain in service without operational mechanical or electrical sirens.

Celentano summarily suspended Titone from the Department without notice or hearing, for “for improper conduct.” Twenty-seven days later the Chair of the Board of Fire Commissioners reinstated Titone to active duty as Captain of Company One, but warned him that any further “infractions would result in his dismissal from the Department.”

Titone contending that the Chair’s letter failed to specify the reason for his suspension; failed to state any final determination regarding the suspension; failed to indicate what conduct would be considered “a further infraction;” and failed to address the effects of the suspension, such as possibly preventing him from seeking any Department elective office for the following three years, sued.

Judge Spinner granted Titone’s petition “in all respects,” and denied the Department’s application seeking dismissal of his complaint “in all respects”.

Indicating that it is “indisputable that the standard of review for determinations of Board of Fire Commissioners and Celentano is whether the decision rendered is arbitrary, capricious and, or, unlawful, Judge Spinner said that “Nowhere do Respondents demonstrate that they made any inquiry whatsoever into the facts before rendering their decision to suspend [Titone], making their actions indisputably arbitrary and capricious.”

The court noted that, as Titone’s Counsel “adeptly points out that, rather than investigating the fact that rescue equipment was in need of repair, they rushed to punish [Titone] for abiding by his oath to protect and serve the public.” The opinion then states: “This Court is most perplexed by how legitimate concern for the safety of the firefighters volunteering to respond to emergencies and the taxpayers the Respondents serve comes to be characterized as defamation.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_33037.pdf
NYPPL

A settlement of a disciplinary action should be memorialize in writing

A settlement of a disciplinary action should be memorialize in writing
Winkler v Kingston Housing Auth., 259 AD2d 819

A public employee who faces disciplinary charges may enter into a settlement agreement that disposes the charges, so long as the waiver is knowingly and intelligently undertaken and serves as the consideration for the curtailment of pending disciplinary proceedings [see Whitehead v State of New York Department of Mental Hygiene, 71 AD2d 653].

The Winkler case teaches the lesson that parties to a settlement can avoid considerable grief if the terms of the negotiated settlement are contemporaneously placed in the record or, in the alternative, signed by all of the necessary parties upon conclusion of settlement negotiations.

Barbara Winkler, a Kingston Housing Authority account clerk/typist, was suspended without pay pending a disciplinary hearing for a period not to exceed 30 days pursuant to Civil Service Law Section 75.3 effective May 12, 1995. She removed her belongings from her desk on May 15, 1995 and demanded a Section 75 hearing. A hearing was scheduled for June 8, 1995.

In the course of the hearing the parties asked for an adjournment to negotiate a settlement in an effort to resolve the disciplinary action. Ultimately, the parties reached an oral agreement resolving the charges filed against Winkler and the Section 75 hearing was “permanently terminated.” Despite the presence of a court reporter, the terms of the settlement were not placed on the record. Subsequent efforts to memorialize the agreement in a written signed document were unsuccessful. Winkler never returned to work, nor did she submit a letter of resignation.

Winkler sued, contending that the matter had not been resolved, that she was still employed by the Authority and that she should have restored to the payroll upon the expiration of the 30-day period of suspension without pay authorized by Civil Service Law Section 75.3.

A state Supreme Court judge dismissed Winker’s petition. The court ruled that Winkler’s employment ended May 15, 1995, notwithstanding the fact that she had not submitted a written resignation.

The court concluded that testimony at the trial indicated that “an agreement was reached to which [Winkler] consented whereby the suspension would be vacated, no finding of guilt on the charges would be made, [Winkler] would receive six months of salary and health insurance benefits for one year, and that [the Authority] would not oppose plaintiff’s efforts to be placed on the Commission’s preferred list, if eligible, and to receive unemployment compensation.”

The Appellate Division affirmed the lower court’s ruling. It said that Winkler had been accorded all the protections of Section 75 to which she was entitled, noting that she had been given a statement of the charges and a hearing was held at which she was represented by counsel. The Appellate Division also said that “after detailed negotiations, the parties entered into a verbal agreement in full satisfaction of all disciplinary charges.”

“[W]hile it would have been preferable for the parties to have recorded the agreement in some fashion,” the Appellate Division said, “an agreement on the record or in writing is not required by Civil Service Law Sections 75, case law or the Statute of Frauds....”

The court said that Winkler’s subsequent refusal to tender the agreed-upon letter of resignation does not entitle her to renegotiate the oral settlement agreement.

The Appellate Division, however, did not appear to be pleased with the handling of the “settlement.” It commented that “clearly, the procedures employed in entering into this [oral] agreement, which did not include a simultaneous recording of the terms, should not serve as a model to guide future settlement negotiations. Indeed, the failure to utilize the available court reporter to make an official record was inexplicable.”
NYPPL

Request for reconsideration of an administrative determination does not extend the statute of limitations for perfecting an appeal

Request for reconsideration of an administrative determination does not extend the statute of limitations for perfecting an appeal
Raykowski v NYC DOT, App. Div., 1st Dept, 259 AD2d 367

Sometimes an individual who has been adversely affected by an administrative decision asks the appointing authority to reconsider its determination. However, as the Raykowski decision indicates, such a request will not excuse the individual’s failing to file a timely challenged to the decision itself.

Michael Raykowski was terminated from his position with the City of New York Department of Transportation because he failed to “maintain a city residence.” Although he asked for reconsideration of the decision terminating his employment, the Appellate Division said that asking for reconsideration “did not extend the applicable four-month [Statute of] limitations ....”

The Appellate Division commented that challenges to administrative decision had to be brought pursuant to Article 78 [Article 78, Civil Practice Law and Rules]. Such an action must be commenced within four month of the final administrative determination.

Significantly, the decision notes that a “fresh, complete and unlimited examination on the merits” will revive the Article 78 statute of limitation. However, the Court ruled that the Department’s meeting with Raykowski eight months after his termination did not satisfy this test and therefore his petition had to be dismissed as untimely.

This decision points out the danger of an employer’s agreeing to reconsider an earlier final administrative decision. If the court determines that the agency’s reconsideration is a fresh, complete and unlimited review of the underlying issue, the Statute of Limitations for the purposes of bringing an Article 78 will commence to run from the date the final determination of the agency’s “reconsideration.”
NYPPL