A public officer must show that alleged false statements concerning him or her were made with actual malice to recover damages for defamation

A public officer must show that alleged false statements concerning him or her were made with actual malice to recover damages for defamation
Watson v Jamestown, 56 AD3d 1289

Michael J. Watson, a police officer, sued a number of police department officials, alleging, among other alleged wrongdoing, defamation.

Supreme Court granted summary judgment dismissing Watson’s complaints. The Appellate Division affirmed the lower court’s action.

Addressing Watson’s claim of defamation, the Appellate Division noted that "A public official [as a police officer, Watson was a public officer] may not recover damages for defamation unless the official proves that the offending false statement was made with actual malice -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not," citing Freeman v Johnston, 84 NY2d 52.

In this instance, said the court, the officials being sued established “their entitlement to judgment as a matter of law with respect to that cause of action by demonstrating that the remarks that allegedly defamed [Watson] were true with the exception of one remark that was a misstatement but was not made with malice.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09231.htm

A union’s duty of fair representation

A union’s duty of fair representation

County of Tompkins and Tompkins County Sheriff and Tompkins County Deputy Sheriff’s Association, Inc., 44 PERB ¶3024, U-28437, U-28483

The Board affirmed the dismissal of a charge by the Tompkins County Deputy Sheriff’s Association, Inc. (Association), which alleged that the joint employer violated §209-a.1(d) of the Public Employees’ Fair Employment Act (Act) by submitting to interest arbitration a proposal to exclude all unit employees not on the payroll at the time of contract ratification and/or the date of an interest arbitration award from receiving retroactive payments of wages and benefits. 

Although a demand for retroactivity of wages and benefits is generally a mandatory subject of negotiations under the Act and arbitrable under §204.9(g) of the Act, the Association asserted that the joint employer’s proposal was prohibited based upon the rationale in the Appellate Division, Third Department’s decision in Baker v Board of Education, Hoosick Falls Central School District, 3 AD3d 678, 37 PERB ¶7502 (3d Dept 2004).

In that decision, the appellate court concluded that the particular facts alleged in a plenary action were sufficient to state a claim of a breach of the duty of fair representation based upon the employee organization’s alleged failure to provide any representation to the plaintiffs, who had been excluded from receiving retroactive salary increases under a negotiated agreement.

The Board noted that in reaching its decision, the Appellate Division was obligated to grant all reasonable inferences to the factual allegations of bad faith and arbitrariness made in the complaint. Accordingly, the Board found that the Hoosick Falls decision does not stand for the substantive proposition that parties are prohibited from proposing the exclusion of one group of employee from a negotiated retroactive salary increase or other benefits.

In its decision, the Board also resolved exceptions and cross-exceptions to the ALJ’s conclusions with respect to the arbitrability of various Association proposals under §209.4(g) of the Act. The Board concluded that the Association’s mandatory on-call and General Municipal Law §207-c proposals were nonarbitrable under §209.4(g) of the Act because they were unitary demands that included inseparable nonarbitrable components under §209.4(g) of the Act.

The Board emphasized that the application of the unitary demand principle to disputes under §209.4(g) of the Act is necessitated by the Legislature’s public policy choice of dividing the subject matter of proposals for deputy sheriffs into two classes with distinct impasse procedures.

The Association’s health insurance buy-out, rate of pay and overtime proposals were found to be arbitrable because they are directly related to compensation. However, the Board found that the Association’s proposals concerning union leave, road patrol schedules, and clothing were nonarbitrable under §209.4(g) of the Act.

Providing employees with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out work related activities

Providing employees with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out work related activities

Thomas v New York City Dept. of Educ., 2012 NY Slip Op 04280, Appellate Division, First Department [See, also, Sagal-Cotler v Board of Educ. of City School Dist. of the City of N.Y., 2012 NY Slip Op 04281, Appellate Division, First Department]

The genesis of the Thomas action: An individual employed as a paraprofessional by the New York City Department of Education (DOE), sought to obtain legal representation pursuant to Education Law §2560(1) when she was named as the defendant in a civil action.*

To obtain legal representation pursuant to the statute in such a situation, however, the individual must meet three requirements: 

1. He or she must have acted within the scope of her employment;

2. He or she must have acted in the discharge of her duties; and

3. His or her action must not have been in violation any rule or regulation of the DOE at the time of the incident.

The Corporation Counsel rejected the individual request for representation and indemnification if held liable.

Noting that the Corporation Counsel is empowered by General Municipal Law §50-k(2) to make factual determinations in the first instance as to whether the individual violated any agency rule or regulation, which "determination may be set aside only if it lacks a factual basis and in that sense, is arbitrary and capricious," the Appellate Division sustained the Corporation Counsel’s decision.

Although the individual denied the charges that had been filed against her, the court said that the allegations against her were "substantiated" at the conclusion of an investigation. Significantly, said the Appellate Division, the individual did not challenge the disciplinary findings against her.

Accordingly, the Corporation Counsel’s determination denying the individual with legal representation and indemnification in a civil action arising out of this incident had a rational basis and was not arbitrary and capricious, an abuse of discretion, or contrary to law.

In so ruling the Appellate Division sustained Supreme Court’s holding that Education Law §2560, which incorporates by reference General Municipal Law §50-k, and Education Law §3028, are not in conflict and should be read together and "applied harmoniously and consistently," citing Alweis v Evans, 69 NY2d 199.

The Appellate Division explained that "It is the duty of the courts to so construe two statutes that they will be in harmony, if that can be done without violating the established canons of statutory interpretation," (see McKinney's Consolidated Laws of New York, Book 1, Statutes §398).

In this instance the Appellate Division said that individual was acting within the scope of her employment since the incident occurred in a classroom but the alleged action, hitting a child on the head during a lesson, violated DOE Chancellor's Regulation A-420 as well as a Statewide rule prohibiting corporal punishment (see 8 NYCRR 19.5[a][2]).

Accordingly, said the court, the alleged act was not undertaken in the discharge or furtherance of the individual’s duties as a school employee, regardless of the purpose of the alleged act.

 

The decision notes that it is a fundamental rule of statutory construction that a court, "in interpreting a statute, should attempt to effectuate the intent of the Legislature" and the plain meaning of the statutory language is "the clearest indicator of legislative intent.”

Both Education Law §§3028 and 2560 provide for the legal representation and indemnification of Board of Education employees. However, they each set forth different circumstances under which such representation and indemnification are to be provided.

When read together, said the court, it is clear that, pursuant to Education Law §3028, a board of education must provide legal representation and pay attorney's fees and expenses incurred in the defense of an employee in any action arising out of a disciplinary action taken against a student by an employee while acting in the scope of his or her employment and in the discharge of his or her duties, unless, pursuant to Education Law §2560(1), the employee is a member of a board of education in a city having a population of one million or more, and, pursuant to General Municipal Law §50-k, he or she violated any rule or regulation of the agency.

* §§17 and 18 of the Public Officers Law respectively address providing State officers and employees and officers and employees of political subdivisions of the State with legal representation and reimbursement for legal fees and expenses incurred in defense of a civil action arising out an act or omission involving the performance of official duties. §19 of the Public Officers Law provides for the state to pay reasonable attorneys' fees and litigation expenses incurred by or on behalf of a State officer or employee in his or her defense of a criminal proceeding in a state or federal court arising out of any act which occurred while such officer or employee was acting within the scope of his or her public employment or duties upon his or her acquittal or upon the dismissal of the criminal charges against him or her or reasonable attorneys' fees incurred in connection.

The Thomas decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04280.htm

The Sagal-Cotler decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04281.htm

Individual dismissed after being found guilty of stealing from a fellow employee

Individual dismissed after being found guilty of stealing from a fellow employee

Clinkscales v Kelly, 2012 NY Slip Op 04287, Appellate Division, First Department

New York City Police Commissioner Raymond Kelly dismissed a police officer found guilty of disciplinary charges that alleged that the officer had stolen a money order from a fellow officer and deposited it in her bank account.

Holding that there was substantial evidence to support finding the officer guilty of the charges filed against her, the Appellate Division then addressed the issue of the officer’s request for an adjournment of the hearing pending the disposition of the complaining officers' related disciplinary charges.

The court ruled that the officer was not deprived of due process as her counsel agreed to the scheduled hearing date, knowing that the minutes, but not the decision, in the related matter were available. Indeed, the decision reports that the officer had a copy of the complaining officers' testimony in the related hearing.

Further, said the court, the decision in the related matter was not probative of any issue in the officer’s disciplinary proceeding.

As to the penalty imposed, dismissal, the Appellate Division said that it did not shock its sense of fairness, citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04287.htm

Negotiating under the Taylor Law in joint employment relationship

Negotiating under the Taylor Law in joint employment relationship

Negotiating under the Taylor Law in joint employment relationship

Matter of the County of Erie, 44 PERB ¶3027, U-28856

The Board affirmed, as modified, a decision of a PERB Administrative Law Judge finding that the County of Erie violated §209-a.1(d) of the Public Employees’ Fair Employment Act when it refused to execute memoranda of agreement negotiated and signed by CSEA and the Erie County Medical Center Corporation.

The Board reiterated that Public Authorities Law §§3629 and 3630 demonstrate a clear legislative intent to create a statutory joint employment relationship between the County and ECMCC, but with unique characteristics distinct from those of other joint employers designated under the Act.

The Board held that the County violated §209-a.1(d) of the Act by failing to sign the agreements because the County had previously acquiesced in ECMCC conducting separate direct negotiations with CSEA resulting in memoranda of agreement that the County signed and the County failed to inform ECMCC and CSEA that it would not execute future agreements resulting from the direct ECMCCCSEA negotiations. 

Failure to cooperate defeats allegations the union violated Civil Service Law §209-a [The Taylor Law] when it withdrew from representing the individual in a disciplinary proceeding

Failure to cooperate defeats allegations the union violated Civil Service Law §209-a [The Taylor Law] when it withdrew from representing the individual in a disciplinary proceeding

Ronald Grassel and United Federation Of Teachers, Local 2, PERB Case U-29040

PERB Administrative Law Judge Blassman dismissed the charge which alleged that the United Federation of Teachers [UFT] violated §209-a.2(a) and (c) of the Act when it withdrew as Grassel’s representative in his Education Law §3020-a disciplinary proceeding.

The ALJ found that the UFT did not act arbitrarily, discriminatory or in bad faith when it withdrew as Grassel’s representative, the standard required for such violations.

The record showed that NYSUT, which was representing Grassel on behalf of the UFT, withdrew as Grassel’s representative because Grassel sent a letter to the arbitrator in which he made various motions and requests to the arbitrator and refused to rescind that letter upon NYSUT’s request. The ALJ found that, by making motions and requests normally reserved for the assigned attorney, Grassel had failed to cooperate with NYSUT in his representation and had impinged upon the negotiating representative’s rights under the Act to make litigation and trial decisions.

Arbitration award granting relief to both active employees and retired employees confirmed

Arbitration award granting relief to both active employees and retired employees confirmed

Matter of City of Buffalo (Buffalo Professional Firefighters Assn., IAFF Local 282), 2012 NY Slip Op 04527, Appellate Division, Fourth Department

The City of Buffalo modified the health insurance plan provided to members of in several negotiating units. The several unions representing City employees in those units filed a grievance with respect to the modified plan, alleging that the modified plan violated their respective collective bargaining agreements (CBA).

An arbitrator issued an award finding that the City's actions violated the relevant CBAs and awarded relief to both active members and retired former members in the collective bargaining units that brought the grievances. 

Buffalo filed an Article 75 petition seeking to vacate the award to the extent that it granted relief to the retirees.

The Appellate Division ruled that the arbitrator did not exceed his authority in fashioning an award that granted relief to the retired unit employees, explaining that the issue whether the unions had standing to represent retired employees formerly in their respective collective bargaining units was for the arbitrator to determine. 

Significantly, the court noted that the record was devoid of any evidence that the elimination of health insurance options did not affect the retirees such that the relevant unions would lack standing to represent them. Accordingly, the court held that Buffalo “failed to demonstrate that the arbitrator exceeded his authority.”

As to Buffalo’s argument that the arbitration award should be vacated because it was "indefinite" as the arbitrator had granted its request to delay implementation of the award until a related police union case completed the appeal process and thus was finalized, the Appellate Division said that it rejected the City’s theory, holding that "An award is subject to vacatur as indefinite or nonfinal only if it leaves the parties unable to determine their rights or obligations, if it does not resolve the controversy submitted, or if it creates a new controversy."

The Appellate Division then confirmed the arbitration award.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04527.htm

A demand is directly related to compensation when its primary characteristic is a modification in the amount or level of compensation and is thus arbitrable

A demand is directly related to compensation when its primary characteristic is a modification in the amount or level of compensation and is thus arbitrable

County of Orange and Sheriff of Orange County and Orange County Deputy Sheriff’s Police Benevolent Association, Inc., 44 PERB ¶3023, U-28693, U-28738 

The Board reaffirmed that a demand is directly related to compensation, and therefore arbitrable under §209.4(g) of the Public Employees’ Fair Employment Act (Act), when its sole, predominant or primary characteristic is a modification in the amount or level of compensation.

In making such a determination, the Board compares the proposal with the lists of subjects specifically identified by the Legislature in §209.4(g) of the Act. The Board, however, reversed the decision in Putnam County Sheriff’s Dept PBA, Inc., 38 PERB ¶3031 (2005), to the extent it held that a proposal seeking a change in the aggregate amount or level of compensation received by unit members from the nonuse of sick leave is nonarbitrable under §209.4(g) of the Act.

The Board concluded that the primary characteristic of such a demand is the monetization of sick leave, a compensatory benefit ordinarily unavailable to public employees.

In addition, the Board reversed Sullivan County Patrolmen’s Benevolent Association, 39 PERB ¶3034 (2006) to the extent it concluded that a proposal seeking to permit the conversion of overtime compensation into compensatory leave and to permit the subsequent remonetization of that leave back into cash or to be applied to health insurance is nonarbitrable because it relates only to “potential” compensation.

The Board held that union proposals in the present cases seeking to permit the conversion of accumulated unused leave time into cash at the time of separation from service were arbitrable under §209.4(g) of the Act because each seeks a form of deferred compensation. However, the Board found that a proposal to increase the amount of compensatory leave time that can be accumulated is nonarbitrable.

Finally, it found a proposal to require an unpaid leave of absence to run currently with leave under the Family Medical Leave Act was nonarbitrable.

PERB reached the same conclusion concerning a unitary demand involving overtime, flex time and scheduling. 

Practice tip noted by PERB staff:  The practical impact of the distinction drawn in §209.4(g) of the Act between arbitrable and nonarbitrable subjects might lead parties to choose to segregate arbitrable subjects from the nonarbitrable in their initial proposals or to sever them during the course of negotiations. While such an approach is not obligatory under §209.4(g) of the Act, it can help avoid unnecessary delays in the issuance of interest arbitration awards and fact-finding reports following an impasse. In contrast, placing arbitrable and nonarbitable subjects into a single demand creates the high risk that the demand will be treated as a nonarbitrable unitary demand. 

Union’s demand that GML §207-c the individual continue to receive benefits pending a hearing and determination is mandatorily negotiable

Union’s demand that GML §207-c the individual continue to receive benefits pending a hearing and determination is mandatorily negotiable

Baldwinsville Police Benevolent Association and Village of Baldwinsville, 44 PERB ¶3031, U-29453, U-29481 

PERB held that that a General Municipal Law (GML) §207-c proposal that would require a continued receipt of benefits pending a hearing and determination is mandatorily negotiable because the proposal seeks a contractual codification of a unit member’s constitutionally protected property right of continued GML §207-c benefits, which can not be terminated without due process.

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General Municipal Law§§ 207-a and 207-c- a 1098 page e-book focusing on administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder is available from the Public Employment Law Press. Click on http://section207.blogspot.com/for additional information about this electronic reference manual.

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A finding of incompetence in a §75 disciplinary proceeding only requires evidence of some dereliction or neglect of duty

A finding of incompetence in a §75 disciplinary proceeding only requires evidence of some dereliction or neglect of duty

Gibson v Board of Educ. for The City School Dist. of Albany,2012 NY Slip Op 04441, Appellate Division, Third Department

A City School District of Albany account clerk was charged with two specifications of incompetence: unsatisfactory work performance and excessive absenteeism, during the 2009-2010 school year. Following a hearing pursuant to Civil Service Law §75, account clerk was found guilty of both specifications and the Hearing Officer recommended dismissal as a penalty to be imposed.

The appointing authority accepted the Hearing Officer's findings and recommendation and terminated account clerk's employment with the school district. Contending that the evidence did not support the Board's finding that her conduct and deficiencies rose to the level of incompetence, and that dismissal is an inappropriate and excessive penalty, the account clerk appealed.

The Appellate Division ruled that “The determination of the Board must be upheld where, as here, it is supported by substantial evidence,” explaining that "a finding of incompetence only requires evidence of some dereliction or neglect of duty." Further, said the court, testimony by the account clerk’s immediate supervisors, coworkers and two district-level assistant supervisors, and the documentary evidence — including the clerk's employee evaluations in March 2009 and May 2010 and attendance records — “provided overwhelming evidence to substantiate each of the specifications of misconduct.”

As to the penalty imposed, dismissal, the Appellate Division said that “on the record before us, we do not find the penalty of termination shocking to the judicial conscience,” citing Kelly v Safir, 96 NY2d 32, and Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, explaining that the individual was “given numerous warnings over a period of many years and failed to assume responsibility for her shortcomings.”

Accordingly, said the court, “In view of the foregoing, the Board's implicit conclusion that further attempts to rehabilitate and retrain petitioner would be futile is neither unfair, shocking nor an abuse of discretion.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04441.htm

Civil Service Commission permitted to rely on appointing authority’s medical expert’s opinion where medical experts differ concerning applicant’s medical condition

Civil Service Commission permitted to rely on appointing authority’s medical expert’s opinion where medical experts differ concerning applicant’s medical condition
Matter of Altieri v City of New York Civ. Serv. Commn. 57 AD3d 248

Anthony Altieri sued the New York City Civil Service Commission after it disqualified him for appoint to the position of sanitation worker because of Altieri’s cardiac condition

The Appellate Division said that the Commission was entitled to rely on the opinion of the Department of Sanitation's medical director that Altieri's appointment as a sanitation worker would put Altieri “at serious risk.”

The fact that Altieri’s treating physician’s opinion disagreed with the Department’s medical director’s opinion does not tend to show that the Commission "acted illegally or capriciously or adopted a professional opinion not founded on a rational basis."

Further, the Appellate Division commented that Altieri’s disqualification for medical reasons “cannot be the predicate of a discrimination claim under Executive Law §296(1)(a).”

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09487.htm

 

The timeliness an unfair practice charge measured from the date on which the party adversely affected learned [or should have known] of the event

The timeliness an unfair practice charge measured from the date on which the party adversely affected learned [or should have known] of the event
Levi Mcintyre And Middle Island Administrators Association and Longwood Central School District, ALJ Blassman, U-27349

A PERB ALJ dismissed a charge alleging that the Association violated of its duty of fair representation §209a.2(c) of the Act in breach as untimely.

The Association agreed to a collectively negotiated agreement that gave Levi McIntyre a lower total wage increase than other unit employees during the life of the agreement. McIntyre advanced two arguments with respect to his contention that his charge was timely: (1) that timeliness did not begin to run until he learned of the retirement of the Association's president, who was the only other unit employee who was similarly situated to McIntyre under the agreement or, in the alternative, the statute of limitations not begin to run until the second year of the agreement, which was when McIntyre alleged he was first negatively impacted by the agreement.

The ALJ ruled that McIntyre was adversely affected by the agreement when the Association agreed to it and thus his time to file a charge began to run from the date he learned of its provisions and how they affected him.

[See, also, Police Benevolent Association of Elmira, New York, Inc. and City Of Elmira, U-27466, in which the Board affirmed the decision of its ALJ dismissing an improper practice charge as untimely after determining that the PBA had actual knowledge of the triggering event more than four months before it filed its improper practice charge and failed to demonstrate that Elmira was equitably estopped from asserting its timeliness defense.]