Court of Claims judge held the court did not have jurisdiction to hear claims that Civil Service Law §75-b [the Whistleblower statute] has been violated

Court of Claims judge held the court did not have jurisdiction to hear claims that Civil Service Law §75-b [the Whistleblower statute] has been violated

Keskin v State of New York, NYS Court of Claims, 14 Misc3d 537

New York State’s "whistleblower" statutes” (Civil Service Law §75-b;* Labor Law §740) provide certain protections to an employee who discloses to a governmental body (Civil Service Law §75-b) or discloses or threatens to disclose to an employer or public body (Labor Law §740), information concerning a violation of a law, rule or regulation.

Kimberly Ann Keskin brought an action in the State’s Court of Claims seeking damages available to whistleblowers pursuant to Civil Service Law §75-b and Labor Law §740. As turned out, she sued in the wrong court.

Justice Philip J. Patti agreed with the State defendants that the Court of Claims "has no subject matter jurisdiction over a claim asserted under Civil Service Law §75-b," relying upon a decision by Judge John L. Bell in Taylor v State of New York (160 Misc 2d 120).

In Taylor, Justice Bell ruled that the State Legislature had not given the Court of Claims jurisdiction to adjudicate claims brought under Section 75-b. Accordingly, he concluded that “a claimant who contemplates an action under the statute would be well advised to institute an action in the Supreme Court rather than the Court of Claims.”

* §75-b 2.(a) of the Civil Service Law provides, in pertinent part, “A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_26480.htm

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Sending notices of disciplinary charges to an accused employee

Sending notices of disciplinary charges to an accused employee

13 Misc 3d 1226(A)*

An employee was dismissed from his position with Westchester County after being found guilty of the charges filed against him by the hearing officer. The disciplinary hearing, however, was conducted in absentia.

Claiming that he had not received any written notice of the charges preferred against him as required by Civil Service Law §75, the employee sued seeking to have the disciplinary determination vacated and reinstatement to his position with salary and benefits retroactive to the date of his termination.

It appears that the Department sent the notice of disciplinary action by Certified Mail but that the envelope was returned as "unclaimed" by the United States Postal Service. The envelope also indicated that the letter was mailed to a Briarcliff Manor, NY 10501 address with no building number.

The court found that under the circumstances the employee had not been served with the written notice of disciplinary charges mandated by Section 75 of the Civil Service Law and granted the employee’s petition.

Justice Bellatoni cited DelBello v. New York City Transit Authority, 151 AD2d 479, 542 NYS2d 270 (2nd Dep't 1989) in support of his ruling. In DelBello the Appellate Division affirmed a Supreme Court decision annulling and vacating a determination terminating DelBello’s employment. In that case, hearing notices were sent to an address from which DelBello had moved and all notices were returned to the Authority unopened and marked "moved-left no address".

The Appellate Division found that because the Authority undertook no other steps to notify the DelBello of the pending charges. “Clearly mailing the notice to the petitioner's last known address was not notice reasonably calculated, under all the circumstances, to apprise DelBello’s of the pendency of the [disciplinary proceedings] and afford [him] an opportunity to represent [his] objections” said the court. In contrast, noted the Appellate Division, the Authority regarded the failure of [DelBello] to receive notice of the hearing and charges as [DelBello’s] problem”.

Justice Bellatoni rejected the Department’s argument that that even though the mailing was returned as unclaimed, it constituted reasonable notice of the charges against the employee and of the scheduled disciplinary hearing that was held in his absence.

Finding that the Department and the Hearing Officer acted in an arbitrary and capricious manner by proceeding with the disciplinary hearing in absentia, the court ruled that terminating the employee’s employment violated the requirements of Civil Service Law § 75.

Further, the court said “What is even more troubling is that [the employee] could have been served personally at his place of employment after the notice came back unclaimed.” At the very least, said the court, the Department could have inquired as to the employee’s address to ensure that the notice was properly sent.” Justice Bellatoni directed that that the matter be heard before a different Hearing Officer.

In contrast, an employee’s claim that she did not receive notice of disciplinary charges mailed to her was rebutted by employer’s evidence of proper mailings.

In a case involving the Board of Educ. of City School Dist. of City of N.Y.,** the court noted that the New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher by certified mail, return receipt requested and by regular mail.

Although the certified mail copy of the Charges was returned to BOE as “unclaimed,” the regular mail copy of the Charges was never returned. BOE subsequently again sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail.  Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned.

A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentia and the teacher was found guilty of the charges and terminated. A letter advising the teacher of her dismissal was mailed to the same address used to send all of the previous letters to the teacher who subsequently acknowledges receiving it and filed a claim with BOE seeking reinstatement retroactive to the date of her termination, along with restoration of benefits.

When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.” Additionally, said the court, the teacher “denies deliberately ignoring the certified mail and maintains that she did not receive notice to pick it up [and] if she had received the Notice of Charges or the actual Charges, she would have requested a hearing in a timely fashion.”

Judge Kornreich said that “The standard in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.”

The court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges. Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent. Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges.

In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Judge Kornreich decided that it was not arbitrary or capricious for BOE to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation and dismissed her petition.

* The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_52004.htm

** 2008 NY Slip Op 31935(U), Supreme Court, New York County, Judge Shirley Werner Kornreich [Not selected for publication in the Official Reports]. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2008/2008_31935.pdf

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The Commissioner of Education will not assume jurisdiction of appeals filed by employees in the classified service concerning personnel matters

The Commissioner of Education will not assume jurisdiction of appeals filed by employees in the classified service concerning personnel matters

Decisions of the Commissioner of Education; Decision No. 15,473

An individual employed as an “Aide to Students with Disabilities” by the School District was terminated from his position while still serving as a probationary employee.

Contending that he was dismissed from his employment without receiving training or an evaluation, he filed an appeal with the Commissioner of Education challenging the School District’s action .

The Commissioner dismissed the individual’s appeal for lack of subject matter jurisdiction. He noted that the individual did not claim that his former position was among those certified by the Commissioner of Education as being in the unclassified service. Neither, said the Commissioner did the individual dispute the School District’s assertion that he was an employee in the classified service within the meaning of the Civil Service Law.

The Commissioner said that “It is well settled that the termination of a classified employee is not the proper subject of an Education Law §310 appeal.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume46/d15473.htm
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Reassignment to a different work shift

Reassignment to a different work shift

Matter of Kattaya (Commissioner of Labor) 32 AD3d 1124

Hany Kattaya was a security officer at a museum. He worked both the day shift and the night shift, preferring the night shift because he received a pay differential and free parking while working the night shift.

Due to disciplinary problems, the museum decided to assign him only to the day shift. Kattaya refused to accept this change of assignment because he would lose the night pay differential and free parking benefit and incur other expenses. He resigned from his position and applied for unemployment insurance benefits.

Kattaya’s application for unemployment insurance benefits was rejected after the Unemployment Insurance administrative law judge ruled that Kattaya had voluntarily left his employment without good cause. 

The Appellate Division, Third Department, dismissed Kattaya’s appeal, commenting, “It is well settled that dissatisfaction with one's work schedule does not constitute good cause for leaving one's employment.”

The court decided that the loss of the pay differential and free parking, and the additional cost of commuting and childcare expenses associated with working during the day, were not compelling reasons for resigning under the circumstances present in this case.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_06893.htm
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Disruptive behavior during a public meeting

Disruptive behavior during a public meeting

13 Misc 3d 64

Although the Town Board announced that members of the public would be permitted to speak during its meeting about any of the topics on the agenda, on individual insisted on speaking about items not on the agenda. Despite the Town Supervisor's warnings that the speaker would be asked to leave if he did not limit his comments to items on the agenda, the individual persisted in asking questions and making comments concerning matters not on the agenda.

When the individual refused to leave when asked to do, he was arrested and charged and convicted of trespass.

The Appellate Term affirmed the individual's conviction, noting that a government entity has a significant interest in controlling its agenda and preventing the disruption of its public meetings and such entities "may confine their meetings to specified subject matter." The decision notes that while a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he or she is expressing, he or she may be stopped if his or her speech becomes irrelevant or repetitious.

In the words of the court::

In the case at bar, defendant's questions were irrelevant to the purpose of the meeting and inappropriate for the time and place, as the public was only privileged to discuss topics set forth on the agenda. We are of the opinion that the Town Board's actions were narrowly tailored to a significant interest, to wit, addressing matters on the agenda in an orderly and efficient manner. Furthermore, rather than restrict defendant's speech completely, the Town Board merely directed him to discuss agenda-related matters.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_26361.htm

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Arbitrators may make an award reflecting the spirit of the agreement

Arbitrators may make an award reflecting the spirit of the agreement

Matter of Arbitration Between Civ. Serv. Employees Assn. Inc. Local 1000 AFSCME AFL-CIO Niagara Falls Bridge Commn. Unit Niagara County Local 832, 32 AD3d 1186

The Appellate Division, Fourth Department ruled that a Supreme Court Justice properly granted CSEA’s petition to confirm an arbitration award and denied the Niagara Falls Bridge Commission’s cross motion to vacate the award.

The Court held that the arbitrator did not exceed the collective bargaining agreement’s [CBA] limitations on her power.

The CBA provided that the arbitrator "shall not have the power to add or subtract from or to modify in any way the terms of [the CBA]." In this instance, however, the court found that the record established that the arbitrator merely interpreted conflicting provisions of the CBA in order to effectuate the intent of the parties.

According to the decision "Parties who agree to refer contract disputes to arbitration must recognize that arbitrators may do justice and the award may well reflect the spirit rather than the letter of the agreement." The court decided that the arbitrator's interpretation of the CBA was appropriate under the circumstances and, contrary to Niagara Falls Bridge Commission’s argument, it was not "totally irrational."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_06663.htm
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Diminution of employment benefits may constitute disciplinary action within the meaning of Civil Service Law §75

Diminution of employment benefits may constitute disciplinary action within the meaning of Civil Service Law §75 

Lynch v Board of Education of the Hewlett-Woodmere Union Free School District, 13 Misc 3d 1217(A)

The School District changed the work schedule of a school bus driver and part time security aide. The change prevented him from working as a security aide.

The employee sued, contending that he lost benefits because of the change in his work schedule. This change in his work schedule, he argued, was a "de facto termination" from his security aide position in violation of Civil Service Law Section 75.

The court agreed, holding that “A ‘diminution in benefits’ occasioned by a reassignment is sufficient to qualify as a disciplinary action so as to require compliance with CSL §75.”

The collective bargaining agreement, however, provided that complaints concerning work assignments and working hours were to be processed through the agreement’s “contract grievance procedure”.

The court said that this provision did not control as the collective bargaining agreement also provided that the term "grievance" did not include any complaint that was otherwise reviewable pursuant to law or any rule or regulation having the force or effect of law.

The court ruled that “Given the exemption from grievance procedure for those matters otherwise reviewable pursuant to law” Lynch could sue “to vindicate a statutory right under Civil Service Law §75” without first utilizing the collective bargaining agreement's contract grievance procedure.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_51881.htm

N.B. An earlier decision posted on the Internet at http://www.courts.state.ny.us/reporter/3dseries/2006/2006_51734.htm

vacated by the court and republished a modified the opinion to correct a mis-stated date.

A counseling memoranda that includes more than “job related feedback” may constitute disciplinary action

12 Misc 3d 1197(A)

An employee was given a written “counseling memorandum” following an investigation of a complaint alleging sexual harassment filed against him by one of his subordinates.

The counseling memorandum, in part, issued by the appointing authority stated:

This Memorandum serves as a written counseling based on the Sexual Harassment complaint that was filed and investigated. You will be required to participate in Supervisory Training as well as Sexual Harassment Prevention Training in the near future.

A “counseling memorandum” issued to a permanent employee typically is not considered disciplinary action requiring “notice and hearing.” In this instance, however, the court ruled that the counseling memorandum given to the employee did, in fact, constitute a disciplinary action taken against him and thus was subject to the disciplinary grievance procedures set out in a collective bargaining agreement [CBA]. 

While the CBA specifically provided that “counseling is not discipline,” the court said that the counseling memorandum issued to Harper by his employer also requires that he attend Supervisory Training and Sexual Harassment Prevention Training,. This additional requirement extended beyond the mere "job-related feedback" referred to in the CBA and thus constituted disciplinary action within the meaning of the CBA.

Accordingly, the employee was entitled to administrative due process in the form of a notice of discipline and a hearing.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_51605.htm

Contracting out the recruitment and appointment of substitute teachers

Contracting out the recruitment and appointment of substitute teachers

Appeal of Kim E. Woodarek, Comm. Of Education Decision No. 15,422

The Commissioner of Education ruled that a school district does not have the authority to enter into a contract with a private party to recruit, interview, select, hire and assign employees to render per diem substitute teaching.

The Commissioner applied the rationale set out in the Sweeney decision [(44 Ed Dept Rep 176, Decision No. 15,139)]. In Sweeney it was held that a BOCESdoes not have the authority to contract with a private party for instructional services.

Other appeals in which the Commissioner determined that a board of education lacks authority to provide instructional services through an independent contractor include Appeal of McKenna, 42 Ed Dept Rep 54, Decision No. 14,774; Matter of Friedman, 19 Ed Dept Rep 522, and Decision No. 10,236. [See, also, Education Law §1950(4)].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume46/d15422.htm

Termination and reinstatement to a lower grade position prior to completion of the required probationary period

Termination and reinstatement to a lower grade position prior to completion of the required probationary period

31 AD3d 456

The Appellate Division, Second Department affirmed the termination on an employee prior to the end of his probationary period in a higher level position and his reinstatement to his former, lower grade position.

In response to the employee’s challenging his termination during his probationary period the Appellate Division said that "A probationary employee may be discharged without a hearing and without a statement of reason in the absence of any demonstration that the dismissal was for a constitutionally-impermissible purpose or in violation of statutory or decisional law" citing such decisions as Walsh v New York State Thruway Auth., 24 AD3d 755; Matter of York v McGuire, 63 NY2d 760; and Matter of Rossetti-Boerner v Hampton Bays Union Free School Dist., 1 AD3d 367.

Accordingly, the Appellate Division rejected the employee’s contention that he was entitled to the procedural protections of Civil Service Law §75 as he was removed from his appointed position prior to his satisfactory completion of a one-year probationary period.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05375.htm

State Comptroller holds $12.5 BILLION IN UNCLAIMED FUNDS, some of which may be the property of a New York governmental entity

State Comptroller holds $12.5 BILLION IN UNCLAIMED FUNDS, some of which may be the property of a New York governmental entity

Source: Office of the New York State Comptroller

New Yorkers and others can find out if they are owed some of the state’s $12.5 billion in unclaimed funds using the Comptroller’s Unclaimed Funds database via the Internet at:

https://ouf.osc.state.ny.us/ouf/

However, these are not just unclaimed funds belonging to individuals and businesses. 

The Comptroller also has monies received pursuant to the Abandoned Property Law belonging to counties, cities, towns, villages, school districts and public employee organizations.

For example, the Comptroller currently lists funds belonging to the following entities:

COUNTY OF CATTARAUGUS

INDUSTRIAL DEVELOPMENT AGENCY CCIDA #L83 02 LITTLE VALLEY NY 14755

COLUMBIA GAS TRANSMISSION CORP

CITY OF BUFFALO

C/O CARL DOBOZIN ATTY AT LAW 68 NIAGARA STREET BUFFALO NY 14202

UTICA FIRST INSURANCE CO

TOWN OF JUNIUS

RD 2 BOX 154 3 WATERLOO NY 13165

EXCHANGE INSURANCE CO

VILLAGE OF CHERRRY CREEK

VILLAGE TREASURER CHERRY CREEK NY 14723

NEW YORK STATE ELECTRIC & GAS CORP

BOCES OF NASSAU COUNTY

207 NEWTOWN ROAD PLAINVIEW NY 11803

CITIBANK NA NATIONAL COMPLIANCE GRP

ROCHESTER CITY SCHOOL DISTRICT

C/O 131 W BROAD ST ROCHESTER NY 14614

SCHOLASTIC BOOK CLUBS INC

CSEA LOCAL 1000 AFSCM

143 WASHINGTON AVE CAPITON ST ALBANY NY 12224

STATE OF CALIFORNIA

BOCES TEACHERS ASSOC

2542 2ND AVE SCHENECTADY NY 12303

TD BANK NA

POLICE BENEVOLENT ASSOC TOWN

BOX 89 ARRONK NY 10504

BANKERS TRUST CO

However, those searching for monies that may be due a particular jurisdiction will have to be inventive. For example, monies that could be claimed by the City of Rochester have been filed as belonging to:

CITY CLERK OF ROCHES

CITY CLERKS OFFICE 30 CHURCH STREET R00M 100-A ROCHESTER NY 14614

STERLING COLLISION CENTERS

ROCHESTER CITY

CITY HALL 30 ROCHESTER NY 14614

CCO MORTGAGE CORP HOLDER 014360

ROCHESTER POLICE DEPT

JEANNE MARCIANO SIS 150 PLYMOUTH AVE S S TE 620 ROCHESTER NY 14614

VERIZON WIRELESS

Again, the Comptroller’s Unclaimed Funds database is available via the Internet at:

https://ouf.osc.state.ny.us/ouf/

Appointment of an “uncertified teacher” to fill a school district’s vacancy in an “extracurricular activity” lawful

Appointment of an “uncertified teacher” to fill a school district’s vacancy in an “extracurricular activity” lawful

Appeal of Canestraro, Decisions of the Commissioner of Education, Decision No. 16,507

Michael Canestraro challenged various actions of the Board of Education of the William Floyd Union Free School District [William Floyd] related to his position being laid off and its refusal to appoint him to another available position.

Mr. Canestraro, certified in Performing Arts and Drama, was employed by William Floyd  as a teacher of Theater and Dance. He was granted tenure in the music tenure area in 2006. Budgetary constraints resulted in William Floyd’s eliminating a position in the music tenure area and Mr. Canestraro was notified that “his position was abolished … and that he would be placed on a preferred eligibility list.”

In his appeal to the Commissioner Mr. Canestraro asserted that he was improperly terminated as he was not the least senior person in the music tenure area. He also contended that William Floyd “violated his constitutional and statutory rights in that he was deprived of his property without due process of law” and violated Education Law §3013(3)* by employing Jennifer Roller, a non-tenured teacher, uncertified in Performing Arts and Drama, instead of appointing him to the position Director of the Children’s Theatre.

William Floyd contended that [1] Mr. Canestraro’s appeal was untimely, [2] that Mr. Canestraro lacks certification for the positions to which he claimed recall rights and [3] that Mr. Canestraro’s petition failed to state a cause of action.

After addressing a number of procedural issues, the Commissioner dismissed Mr. Canestraro’s appeal as untimely** and other procedural defects set out in the Commissioner’s determination.

The Commissioner pointed out that a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief, citing 8 NYCRR §275.10.

In this instance the Commissioner found that Mr. Canestraro’s claim that Ms. Roller was not properly certified to be the Director of the Children’s Theatre was not supported by the record. The Commissioner said that an affidavit of William Floyd’s assistant superintendent for human resources and administration indicates that the district abolished its theater program and that the Children’s Theatre at the high school is an extracurricular activity, outside of the school day.

Consequently, said the Commissioner, because the Children’s Theater was not part of William Floyd’s academic curriculum, but was an extracurricular activity, Ms. Roller was not required to be certified to hold the position of Director of the Children’s Theatre. Thus Mr. Canestraro failed to demonstrate that Ms. Roller was required to hold certification in order to be lawfully employed in this extracurricular activity.

Finally, the Commissioner ruled that Mr. Canestraro’s reliance on the “continuing wrong doctrine” was misplaced as it dis not apply in this instance and this element of his claim must also be dismissed.

* §3013(3), in pertinent part, provides: “The persons on such preferred list shall be reinstated or appointed to such vacancies in such corresponding or similar positions in the order of their length of service in the system at any time within seven years from the date of abolition or consolidation of such office or position.”

** Mr. Canestraro initially filed a Notice of Claim for reinstatement and damages but Supreme Court, Suffolk County, dismissed his Article 78 petition on the grounds that the Commissioner of Education had primary jurisdiction over the dispute [Canestraro v. William Floyd Union Free School District, Supreme Court, Suffolk County, Index No.0045692/2010]. The Commissioner noted that an unsuccessful attempt to litigate a dispute in court that does not result in a final determination on the merits may be accepted as an excuse for failing to file a timely appeal to the Commissioner, when the appeal is commenced within 30 days of receipt of the judicial determination.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16507.pdf

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