Concerning the fellow-servant rule, the doctrine of vicarious liability and the doctrine of respondeat superior in New York State

Concerning the fellow-servant rule, the doctrine of vicarious liability and the doctrine of respondeat superior in New York State

Buckley v City Of New York, 56 N.Y.2d 300

[Decided with Lawrence v City of New York]

These cases essentially involved the question of whether the fellow-servant rule continues to apply in New York. 

In each case an employee of the City of New York, who was injured through the negligence of a coemployee, brought an action against the City. In Buckley v City of New York, a police officer was accidentally shot in the leg when a gun being loaded by a fellow officer discharged in the station house locker room. In Lawrence v City of New York, a fire fighter was seriously injured when a fellow fire fighter threw a smouldering couch from the second story window of a fire-damaged building and struck the plaintiff while he was standing in the yard.

In each case the plaintiff secured a jury verdict of liability against the city on a theory of vicarious liability and the city's motion to dismiss the complaint on the basis of the fellow-servant rule was denied. The Appellate Division affirmed the judgments in both instances and leave has been granted to appeal to this court. The Court of Appeals affirmed the Appellate Division's ruling.

The doctrine of  rule of respondeat superior holds that the employer will be liable to third parties for torts of an employee committed within the scope of his or her employment.

In contrast, the fellow-servant rule is triggered in the event an employee is injured by a fellow employee in the workplace. The injured worker will have no recourse against the employer in respondeat superiorand the rule provides that "where a servant is injured through the negligence or fault of a fellow servant, engaged in a common business and employment ... if the master is himself free from fault, the master is not responsible for the injury."

The Court of Appeals observed that "The over-all effect of the fellow-servant rule was drastically curtailed by the advent of workers' compensation legislation," concluding that "Today we are squarely presented with the question left open in Poniatowski — whether the fellow-servant rule is to survive in New York. The rule had its birth in the 19th century, was severely crippled with the advent of workers' compensation, and was dealt an almost fatal blow in this State in Poniatowski v City of New York, 14 N.Y.2d 76.

Today, said the court, in rejecting this rule entirely, we inter its remains," explaining "The fellow-servant rule serves no continuing valid purpose in New York, but instead merely works an unjustifiable hardship upon individuals injured in the workplace, and we must thus conclude that the fellow-servant rule is no longer to be followed in New York."

The Buckley decision is posted on the Internet at:

https://www.leagle.com/decision/198235656ny2d3001326

Relying on material not within the four corners of a settlement document to explain the "intent" of the settlement is misplaced

Relying on material not within the four corners of a settlement document to explain the "intent" of the settlement is misplaced

Woolfolk v New York City Board/Dept. of Educ., 2018 NY Slip Op 03765, Appellate Division, First Department

Supreme Court denied the employee's petition to set aside the employer's annual performance rating of the employee as "ineffective" upon the court's determinating that any right to initiate a legal or equitable claim concerning the rating was waived by employee's "Stipulation of Settlement" of disciplinary charges filed against the employee.

The employee had been served with disciplinary charges pursuant to Education Law §3020-a. Prior to the adjudication of those charges, the employee and the appointing authority entered into a "Post-Charge Stipulation of Settlement" to discontinue the disciplinary action. Subsequently the employee filed an administrative appeal challenging the "ineffective" annual performance rating received by the employee. The administrative appeal was rejected by the appointing authority and employee initiated an Article 78 proceeding challenging the appointing authority's rejection of the appeal.

Sustaining the Supreme Court's dismissal of the employee's Article 78 petition, the Appellate Division, citing W.W.W. Assoc. v Giancontieri, 77 NY2d 157, explained that it is well settled that "when parties set down their agreement in a clear, complete document, their writing should as a rule be enforced according to its terms. Evidence outside the four corners of the document as to what was really intended but unstated or misstated is generally inadmissible to add to or vary the writing."

In this instance, said the court, "the clear and express terms of the stipulation of settlement" indicated that the employee had waived any right to file a claim in court relating to any matter arising from or relating to her employment prior to December 2015, including this challenge to the individual's year-end performance rating of "ineffective" for the prior school year.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03765.htm

Exploring some aspects of "civil service status" in the Classified Service of the Civil Service in New York State

Exploring some aspects of "civil service status" in the Classified Service of the Civil Service in New York State

Cannavo v Olatoye, 2018 NY Slip Op 03740, Appellate Division, First Department

The Cannavo decision by the Appellate Division is set out below, with comments concerning some of the more "troublesome" elements of the ruling set out in bold in blue.

Supreme Court denied Cannavo's application for reinstatement to his former position with the New York City Housing Authority (NYCHA), and dismissing the proceeding brought pursuant to CPLR Article 78, which ruling was unanimously affirmed, by the Appellate Division without costs. The Appellate Division's ruling states:

"The article 78 court correctly determined, upon consideration of all the facts, that respondents' denial of petitioner's application for reinstatement to his former position with NYCHA was not arbitrary and capricious or an abuse of discretion (see Matter of Roberts v Gavin, 96 AD3d 669, 671 [1st Dept 2012])."

The decision reports that Cannao sought reinstatement with NYCHA following his retirement from NYCHA. As reinstatement of a former employee to his or her former position is a matter subject to the exercise of the discretion of the appointing authority, and absent such denial of the request for a discriminatory reason or unlawful purpose, the appointing authority's denial of the retiree's request for reinstatement is otherwise lawful.

A retiree may be reemployed following his or her retirement subject to the limitations set out in §150 of the Civil Service Law. Further, §13-119 and 13-178 of the New York City Administrative Code addressed a retired member's eligibility to rejoin the relevant retirement system without any limitation based on "jurisdictional classification" of the position to which reemployment is sought.

The decision then continues:

"Despite petitioner's previous position as a "civil service" employee with the New York City Department of Housing Preservation and Development (HPD), when he was hired by NYCHA in 1996, it was in a non-competitive position that was not eligible for civil service status, as NYCHA's records reflect." 

The Civil Service of the State of New York, in contrast to the "military service" of the State of New York, consists of positions Exempt Class [CSL §41]; the Non-competitive Class [CSL §42]; the Labor Class [CSL §43] and the Competitive Class [CSL §44], which positions are in the "Classified Service" and positions the Unclassified Service, which positions are set out in CSL §35. 

No explanation or justification is provided with respect to the representation that Canno "was not eligible for civil service status" with NYCHA.

As to the status of HPD and NYCHA, the list of "New York City Agencies" listed on the Official Website of the City of New York includes, among other agencies:

●  Housing Authority, New York City (NYCHA)  and

●  Housing Preservation and Development, Department of (HPD)

As Yul Brynner exclaims in The King and I, "is a puzzlement!" as to why Canno "was not eligible for civil service status" with NYCHA because of the jurisdictional class of the position.

Upon a review of records kept by HPD, NYCHA, and the Department of Citywide Administrative Services, respondents determined that petitioner's civil service status had not been formally transferred from HPD to NYCHA, and, since only those who have civil service status are eligible for reinstatement following retirement, rationally concluded that petitioner was not eligible for reinstatement.

This conclusion is troublesome as it appears that Canno resigned from his position in the "Civil Service" with HPD in favor of a de novo appointment to a position in "Civil Service" in the Non-competitive Class with NYHCA. The decision is silent with respect to the basis for the determination that petitioner lacked "civil service status" with NYCHA.

Further, there is no bar to the reinstatement of a retiree to his or her former position should the appointing authority approve such a reinstatement regardless of the jurisdictional classification of the position involved. 

The reinstatement, reappointment, reemployment or new appointment of a person otherwise qualified receiving a New York State public retirement system benefit is permitted at the discretion of the appointing authority, subject to the provisions and limitations set out in CSL §150 with respect to the suspension  of the individual's  pension  and  annuity and limits on compensation during such public employment.

The opinion continues:

While petitioner claims that certain NYCHA documents — including a notification of appointment and performance reviews he received in 1996 — reflect that he maintained his competitive civil service status, the record shows that he subsequently had many conversations with Human Resources and took actions to obtain a formal transfer. Moreover, attached to the petition is a 1996 memo from Human Resources informing petitioner that he did not, in fact, possess this status. As the court found, this is not a rare or extraordinary case in which the doctrine of estoppel or laches should be applied against a government agency (see Matter of New York State Med. Transporters Assn. v Perales, 77 NY2d 126, 130 [1990]).

With respect to the noting that Canno "took actions to obtain a formal transfer" as here relevant [see NYCRR 1.2(b)(1)], assuming, but not conceding, that such was, in fact, the case, a transfer from a position under the jurisdiction of one appointing authority to a position under the jurisdiction of a different appointing authority requires the approval of both appointing authorities.

In contrast, as indicated by 4 NYCRR 1.2(b)(2) , the placement of an individual under the jurisdiction of the appointing authority to another position under the jurisdiction of the same appointing authority having the same title is a "reassignment" not a "transfer."

The bottom line: A individual who retired from a position in the Classified Service is not barred from being reinstated to his or her former position if available and otherwise permitted by the controlling provisions of the Civil Service Law regardless of his or her pre-retirement "appointment status" in such position, i.e., permanent, contingent permanent, temporary, provisional, military substitute, or term and regardless of the jurisdictional classification  or budgetary status of the position in question if otherwise available for appointment thereto. 

The decision concludes:

We have considered petitioner's remaining contentions and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 24, 2018

CLERK

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2018/2018_03740.htm

Considering the employee's personnel history in setting a disciplinary penalty

Considering the employee's personnel history is setting a disciplinary penalty

Brizel v City of New York, 2018 NY Slip Op 03755, Appellate Division, First Department

Educator was served with disciplinary charges pursuant to Education Law §3020-a. The Arbitrator found the teacher, who had a 27-year career with the New York City Department of Education, guilty of misconduct and terminating his employment.

The Appellate Division confirmed the arbitration award, noting that the Educator's career, "was not without incident, as evidenced by his 2008 settlement of disciplinary charges." The court then observed that the Arbitrator "properly considered" an earlier settlement of those charges in setting the disiplinary penalty in this instance. In addition the Appellate Division noted that the Educator failed to acknowledge the gravity of his misconduct, continues to deny wrongdoing, and attempted to shift blame to his students.

Considering an employee's personnel history in setting a disciplinary penalty is permitted provided, as the Court of Appeals held in Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470 and Doyle v Ten Broeck, 52 NY2d 625, the individual is advised that this will be done and is given an opportunity to comment on the contents of his or her personnel file.

Further, as the court noted in Shafer v Board of Fire Commr., Selkirk Fire Dist., 107 AD3d 1229, a series of petty offenses by a single individual may have a cumulative impact in the setting of a penalty. In fact, courts have approved the dismissal of an employee for a series of misdeeds that if considered individually would not have been viewed as justifying termination.

In determining the appropriate penalty to be imposed, relevant issues include considering if this is the employee’s first offense of this nature, or is there a pattern of such offenses and had the employee been disciplined or served with disciplinary notice in the past.

In sustaining the Arbitrator's determination as to the penalty to be imposed in this instance, the Appellate Division said that "Under the circumstances presented, the penalty of termination does not shock our sense of fairness," citing Bolt v New York City Department of Education, 30 NY3d 1065.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03755.htm

A police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

A police officer's accident disability retirement benefits are to be offset against the injured retiree's jury award for future lost earnings and pension

Andino v Mills, 2018 NY Slip Op 04273, Court of Appeals

Does a retired New York City police officer's accident disability retirement (ADR) benefits are a collateral source that a court must offset against the injured retiree's jury award for future lost earnings and pension?

The Court of Appeals held that a New York City retired police officer's accident disability retirement (ADR) benefits does so operate by [1] replacing earnings during the period when the officer could have been employed absent the disabling injury and then [2] serving as pension allotments. Accordingly, a court must offset the retiree's projected ADR benefits against the jury award for both categories of economic loss.*

Niurka Andino [Plaintiff] is a retired police officer who was injured on duty while riding in a police car that collided with a vehicle owned by the New York City Transit Authority (NYCTA) and operated by NYCTA employee Ronald Mills [Defendants].

Defendants moved to offset the jury award pursuant to CPLR §4545, which permits a court to find that certain awarded damages were or will, with reasonable certainty, be replaced or indemnified from a collateral source. Defendants contended that "when a police officer retires due to an on-the-job injury that leaves the officer disabled, the ADR benefits allotted to that officer for those years when the officer could have been working, if not for the disability, operate as lost earnings. Once the retired officer reaches the age for regular retirement from service, absent the retirement-inducing injury, ADR benefits serve as a pension."

Andino argued that [1] "there is no direct correspondence between her ADR benefits and the categories of economic loss awarded by the jury" and [2] "that ADR displaces Ordinary Disability Retirement (ODR), and the higher amount of ADR benefits as compared with ODR allotments is paid as a reward for services previously rendered." As the Court of Appeals characterized Andino's argument, "... the premium in ADR benefits as compared to ODR benefits is neither "earnings" nor "pension" but paid in gratitude for past services".

The Court of Appeals explained that ADR benefits, and the text and legislative intent of CPLR §4545, as interpreted by the court in Oden v Chemung County, 87 NY2d 81,** provide the basis for concluding that "ADR benefits operate sequentially as payment for future lost earnings and pension benefits." Accordingly, said the court, on a motion pursuant to CPLR §4545, "a court must apply ADR benefits, dollar-for-dollar, to offset the jury award for future lost earnings during the period they represent lost earnings, and future lost pension during the period they represent lost pension."

The court also rejected Andino's alternative argument that "ADR benefits are a 'reward' for the retiree's service which may not be offset against a jury award" as unpersuasive, explaining that "there is no support in the Administrative Code or CPLR §4545 or any available legislative history to treat ADR benefits as a category on its own, exempt from mandatory offset." In any event, said the court, "even if the Legislature sought to reward service members like Andino, who suffer an injury in the line of duty, that would not change the classification of ADR benefits as a replacement for lost earnings and pension allowances" as there is no legal justification for treating a portion of ADR benefits as a reward based on the 25% differential between ODR and ADR benefits. In the words of the Court of Appeals, "CPLR 4545 anticipates a dollar-for-dollar  offset" and that offset "is based on the category of reimbursement, not on a stratification of the collateral source total amount."

The case was remitted Supreme Court for further proceedings "in accordance with the opinion herein and, as so modified, affirmed," Judges Wilson dissenting in an opinion in which Judge Fahey concured.

* By stipulation, the parties agreed to set the period for future lost earnings at 19.24 years and future lost pension at 17.7 years.

** The specific facts of Oden, said the court, explain why that decision provides a different disposition than is called for Andino's case. In Oden, the plaintiff's private sector retirement pension benefits could not offset the jury's award for his future lost earnings because the pension allotments did "not necessarily correspond to any future earning capacity plaintiff might have had," because Oden "would have been free to earn income from his labor in other capacities without loss of his disability retirement pension benefits."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_04273.htm

Applying the "preponderance of the evidence" standard rather than the "substantial evidence" standard in a disciplinary hearing

Applying the "preponderance of the evidence" standard rather than the "substantial evidence" standard in a disciplinary hearing

Guzman v Bratton, 2018 NY Slip Op 03648, Appellate Division, First Department

Applying the preponderance of the evidence standard, the hearing officer found Petitioner, a New York City police officer, guilty of both specifications set out in the disciplinary charges filed against Petitioner. The penalty recommended by the hearing officer: to imposed on the Petitioner: dismissal from employment.

The appointing authority adopted the findings and recommendation of the hearing officer and dismissed Petitioner from the New York Police Department.

Petitioner appealed, contending, among other things, that the hearing officer applied the "preponderance of the evidence" standard in determining finding Petitioner guilty of the disciplinary charges filed against him instead of applying the "substantial evidence standard."

The Appellate Division noted that the "preponderance of the evidence standard" used by the hearing officer in determining that Petitioner was guilty of the disciplinary charges and specification is a higher standard than the substantial evidence standard that Petitioner argued should have been employed by the hearing officer.

Thus, said the court, "contrary to Petitioner's claims," the appointing authority relied upon the hearing officer's findings based on a higher, rather than lower, standard of proof in adopting the hearing officer's findings and the hearing officer's recommendation as to the penalty to be imposed.

Addressing the penalty imposed on Petitioner, termination from his position, the Appellate Division, citing Featherstone v Franco, 95 NY2d 550, explained that the court reviewing an administrative disciplinary action must uphold the sanction imposed by the appointing authority "unless it is so disproportionate to the offense that it shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a matter of law."

Here, opined the court, "the penalty of termination of employment is not disproportionate to the misconduct and does not shock the conscience" in view of the fact that Petitioner was found guilty of two acts of serious misconduct, which adversely affected the integrity of the Police Department."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03648.htm

Lawsuit to recover damages for wrongful death of a student dismissed

Lawsuit to recover damages for wrongful death of a student dismissed

Juerss v Millbrook Cent. Sch. Dist., 2018 NY Slip Op 03518, Appellate Division, Second Department

A student suspended from Millbrook Middle School after the school's principal concluded that the she had engaged in an act of student misconduct committed suicide later that day.

Plaintiffs, as administrators of the student's estate sued the Middle School's principal, Millbrook Central School District, and the Board of Education of Millbrook Central School District [Defendants] alleging the student's suicide was caused by the Defendants' negligent investigation into the allegation of student misconduct and their negligent training of school staff in investigative procedures.

In this action to recover damages for wrongful death, Supreme Court granted the Millbrook Central School District's motion to dismiss the Plaintiffs' complaint. The Appellate Division the lower court's determination.

With respect to the Defendants' motion to dismiss the complaint for failure to state a cause of action, the Appellate Division said that "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law a motion for dismissal will fail." Citing Michaan v Gazebo Hort., Inc., 117 AD3d 692, the court said that in so doing, said the court, "the pleading must be liberally construed, the factual allegations must be deemed true, and the pleading party must be accorded the benefit of every possible favorable inference."

Applying these principles, the Appellate Division explained that (a) New York does not recognize a cause of action sounding in negligent investigation and (b) "a claim for negligent training in investigative procedures is akin to a claim for negligent investigation or prosecution, which is not actionable in New York."

The decision if posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03518.htm

Authority of the arbitrator

Authority of the arbitrator

City of New York v District Council 37, 2018 NY Slip Op 03220, Appellate Division, First Department

Supreme Court granted the City of New York's petition to vacate an arbitration award, denied the grievance, and dismissed this proceeding the City brought pursuant to CPLR Article 75. The Appellate division unanimously affirmed the Supreme Court's ruling.

The court explained that an arbitrator exceeds his or her powers when the "award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power."

However, the fact that there is a provision in a contract that the arbitrator may not alter or modify does not limit the arbitrator's power to resolve the dispute by interpreting the contract based on his or her findings as to the intent of the parties.

In contrast, an arbitration award should be vacated where it is not derived from the contract but from the deliberate and intentional consideration of matters outside the contract.

Here, said the Appellate Division, the record shows that the arbitration award added to or modified the collective bargaining agreement as the arbitrator's decision rewrote the contract for the parties by expanding the number of workers entitled to the assignment differential, when the contract expressly limited the differential to workers at a specific facility.

This exceed the arbitrator's powers as such an action was expressly prohibited in the agreement

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03220.htm

Distinguishing between an individual's "domicile" and his or her "residence"

Distinguishing between an individual's "domicile" and his or her "residence"

Campaniello v New York State Div. of Tax Appeals Trib., 2018 NY Slip Op 03400, Appellate Division, Third Department

From time to time an applicant for public employment or an employee is required to be "domiciled"* with the physical jurisdiction of the employer. In some instances there is some confusion between the individual's "domicile" and his or her "residence"** for the purpose of qualifying for employment with the employer with respect to the requirement that the individual be a "resident" rather than be domiciled within the physical jurisdiction of the employer.

An individual may simultaneously have a number of residences but he or she has only one domicile at a time regardless of the number of residences involved. The term “domicile” means the place where a person has his or her permanent home to which he or she intends to return if living or having a residence at a different location.

In Campaniello the Appellate Division explained that a person's domicile "is the place which an individual intends to be such individual's permanent home ... " for it is well-settled that "domicile is established by physical presence in a particular locality coupled with the intent to remain." Further, once a domicile is established, it "continues until the individual in question moves to a new location with the bona fide intention of making such individual's fixed and permanent home there."

Should an individual seek to establish a change in domicile, it was that individual's burden to prove his or her change of domicile by clear and convincing evidence.

Below are selected court decisions that considered one or more aspects of a "residence requirement" for appointment to a position in the public service or for an individual's "continuation" in his or her public employment."

Court of Appeals holds that a “residency policy” requiring municipal workers to be domiciled within the geographical boundaries of the jurisdiction serves a "legitimate purpose"

Matter of Beck-Nichols, Adrian, and Luchey v Bianco, 2013 NY Slip Op 01015, Court of Appeals 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01015.htm

Employee terminated after failing to establish and maintain a domicile in the jurisdiction as required the Town’s Code
Peck v Town Bd. of Town of Amherst, 2012 NY Slip Op 02220, Appellate Division, Fourth Department

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02220.htm

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”
Matter of Gigliotti v Bianco, 2011 NY Slip Op 02206, Appellate Division, Fourth Department,

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02206.htm

Terminated employees challenge City’s requirement that employees be domiciled within its jurisdiction
Matter of Ball v City of Syracuse, 60 AD3d 1312; Motion for leave to appeal denied, 63 AD3d 1671

The decision is posted on the Internet at:

https://publicpersonnellaw.blogspot.com/2010/02/terminated-employees-challenge-citys.html

Determining “continuous residency” for the purpose of qualifying for public office or employment

Glickman v Laffin, 2016 NY Slip Op 05842, Court of Appeals
The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_05842.htm

An individual’s domicile and residence distinguished
Weiss v Teachout, 2014 NY Slip Op 05888, Appellate Division, Second Department

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_05888.htm

Employee found to have violated employer's domiciliary policy terminated
Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 2012 NY Slip Op 01293, Appellate Division, Fourth Department 

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01293.htm

Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction
Matter of Johnson v Town of Amherst, 2010 NY Slip Op 05447, Decided on June 18, 2010, Appellate Division, Fourth Department
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm

Automatic termination from public office by operation of law
Foley v Bratton, Court of Appeals, 92 NY2d 781 [Decided with Griffin v Bratton]

The decision is posted on the Internet at:

https://law.justia.com/cases/new-york/court-of-appeals/1999/92-n-y-2d-781-0.html

Elected official removed from public office for failing to be a domiciliary of the jurisdiction as required by law

Board of Trustees of the Vil. of Sodus, N.Y. v Allen, 2011 NY Slip Op 31035(U), Supreme Court, Wayne County, Docket Number: 71473/2010, Judge Dennis M. Kehoe [Not selected for publication in the Official Reports]

The Allen decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2011/2011_31035.pdf

* See, for example, §3.2 [et seq.] of the Public Officers Law with respect to excusing certain employees from complying with a residence requirement set by a political subdivision of the State.

** An individual may simultaneously have a number of residences but he or she has only one domicile at a time regardless of the number of residences involved. The term “domicile” means the place where a person has his or her permanent home to which he or she intends to return if living or having a residence at a different location. [See also an earlier decision involving this issue at http://publicpersonnellaw.blogspot.com/2010/02/terminated-employees-challenge-citys.html.]

The Campaniello decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03400.htm

School district resident alleges members of the board of education and school officials and staff of "incompetent, unethical, inappropriate and illegal behaviors."

School district resident alleges members of the board of education and school officials and staff of "incompetent, unethical, inappropriate and illegal behaviors." 

Decisions of the Commissioner of Education, Commissioner's decision 17,393

In view of the variety issues addressed by the Commissioner in her deciding this appeal by a district resident and taxpayer of the Beacon City School District, the decision is set out below in its entirety.

Appeal of MELISSA RUTKOSKE, on behalf of CONCERNED PARENTS OF BEACON CITY SCHOOL DISTRICT from action of the Board of Education of the City School District of the City of Beacon regarding board practices.

Decision No. 17,393

Shaw, Perelson, May & Lambert, LLP, attorneys for respondent^[1], Michael K. Lambert, Esq., of counsel

Elia, Commissioner:

Petitioner Melissa Rutkoske, a district resident and taxpayer, appeals on behalf of Concerned Parents of Beacon City School District (“Concerned Parents”) from various actions taken by the Board of Education of the City School District of the City of Beacon (“respondent board”), its school attorney and superintendent (collectively, “respondents”).

The appeal must be dismissed.

Petitioner Rutkoske asserts that Concerned Parents is a group of parents who support and endorse the instant petition.  Petitioner Rutkoske is an individual taxpayer and community member who resides within respondent board’s district.  In her verification of the petition, petitioner Rutkoske asserts that she is “the Petitioner on behalf of the Concerned Parents of the Beacon City School District.” 

According to petitioner, between the fall of 2014 and a board of education meeting which allegedly occurred on October 14, 2015, respondent board and its officials and staff committed various actions which petitioner characterizes as “incompetent, unethical, inappropriate and illegal behaviors [which] are ongoing and continuous.”  Petitioner cites numerous examples of such conduct; for example, petitioner states that respondent board and respondent’s attorney allowed a board meeting to continue even though the meeting room was over “fire code capacity”; that unethical personal relationships existed between respondent board’s staff, officials and individuals within the district; that personal affairs as well as business were conducted using the district’s email system; that improper gifts were made from a district official to an official of the Beacon Teacher’s Association (“BTA”); that respondent board’s administrative power was used improperly to assist in teacher promotion, teacher transfer, and student placement; and that the school attorney failed to properly investigate or review such alleged improper behaviors. 

Petitioner seeks “[i]nvestigation, audit, and oversight” by the New York State Education Department into the above allegations.  Petitioner further seeks an order “[d]irecting the [b]oard to remove the [superintendent] for cause” and to hire a new law firm to represent the district.

Respondents claim, inter alia, that petitioner’s allegations are without merit and stem from a personal vendetta harbored by petitioner Rutkoske.  Respondents assert that Concerned Parents “is, at best, an unincorporated association” which lacks standing to maintain the instant appeal.  Respondents claim that petitioner inappropriately gained access to district emails attached as exhibits to the petition.  Respondents also argue that petitioner failed to properly identify a respondent or respondents in the caption of the appeal, thus mandating dismissal for failure to join necessary parties.  Respondents further contend that the petition must be dismissed for lack of proper service and as untimely. 

Respondents additionally claim that the officer of the BTA of whom petitioner complains has resigned and, thus, any matters regarding this individual are moot. 

Respondents also assert that petitioner has failed to establish a clear legal right to the relief sought.  Respondents also object to the fact that the petition does not contain petitioner’s name, telephone number, or post office address as required by 8 NYCRR §275.4(a).

As an initial matter, by letter dated January 25, 2016, respondents object to petitioner’s reply, claiming that it contains new material and was not served on their attorney as required by §275.8(b) of the Commissioner’s regulations.  Petitioner’s affidavit of service indicates that the reply was served upon “the Clerk of the Board.”  As respondents note, the Commissioner’s regulations require that “all subsequent pleadings and papers shall be served upon the adverse party or, if the adverse party is represented by counsel, upon such party’s attorney” (8 NYCRR §275.8[b]).  Accordingly, I have not considered petitioner’s reply (Appeal of Reis and Argus, 51 Ed Dept Rep, Decision No. 16,335).

Concerned Parents lacks standing to bring this appeal.  As respondents note, there is no evidence in the record suggesting that Concerned Parents is an incorporated association.  Petitioner has merely attached to her petition a list of signatures allegedly belonging to district residents who “support” the instant petition.  An unincorporated association lacks standing to maintain an appeal under Education Law §310 (Appeal of Radford, et al., 57 Ed Dept Rep, Decision No. 17,282; Appeal of Torres, 46 id. 301, Decision No. 15,515).  Moreover, an individual representative of an unincorporated association has no greater standing to maintain an appeal pursuant to Education Law §310 than the association itself (Appeal of Beilman, 38 Ed Dept Rep 644, Decision No. 14,109; Appeal of Ben-Reuben, et al., 33 id. 299, Decision No. 13,055).  Therefore, neither Concerned Parents nor petitioner Rutkoske, as an individual representative of such unincorporated association, may maintain the instant appeal.

However, although not entirely clear from the petition, to the extent petitioner Rutkoske intends to bring this proceeding on her own behalf as a district resident and taxpayer, she has standing to do so to the extent she is aggrieved.^[2]  An individual may not maintain an appeal pursuant to Education Law §310 unless aggrieved in the sense that he or she has suffered personal damage or injury to his or her civil, personal or property rights (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  Only persons who are directly affected by the action being appealed have standing to bring an appeal (Appeal of Abitbol, 57 Ed Dept Rep, Decision No. 17,333; Appeal of Waechter, 48 id. 261, Decision No. 15,853).  To the extent petitioner Rutkoske attempts to assert claims on behalf of other parents, however, she lacks standing to do so.  (Appeal of Walker, et al., 53 Ed Dept Rep, Decision No. 16,609; Appeals of Giardina and Carbone, 43 id. 395, Decision No. 15,030; Appeal of Gilmore and Jordon-Thompson, 42 id. 334, Decision No. 14,874). 

The appeal must be dismissed for failure to join necessary parties.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of Murray, 48 id. 517, Decision No. 15,934).  As described herein, petitioner raises claims and seeks relief that, if granted, would adversely affect, at a minimum, the board, the superintendent and the school attorney.  However, she has failed to name any of them in the caption of the appeal. Indeed, the caption in this matter as submitted by petitioner Rutkoske reads as follows:

In the Matter of Concerned Parents of Beacon City School District

requesting New York State Education oversight due to

unethical, illegal and inappropriate conduct of the leadership of

the Beacon City School District.

Moreover, petitioner has not personally served the board, superintendent or school attorney.  Section 275.8(a) of the Commissioner’s regulations requires that the petition be personally served upon each named respondent.  If a school district is named as a respondent, service upon the school district shall be made personally by delivering a copy of the petition to the district clerk, to any trustee or any member of the board of education, to the superintendent of schools, or to a person in the office of the superintendent who has been designated by the board of education to accept service (8 NYCRR §275.8[a]; Appeal of B.H., 57 Ed Dept Rep, Decision No. 17,246; Appeal of Peterson, 48 id. 530, Decision No. 15,939).  The record indicates that the instant appeal was served only upon the district treasurer.  Although petitioner’s affidavit of service indicates that the district treasurer is authorized to accept service on behalf of the district, the treasurer has submitted an affidavit herein whereby she attests that she is not authorized to accept service on behalf of the district. 

On this record, therefore, in light of the conflicting affidavits, I find that the evidence regarding service of the petition on respondent is in equipoise and petitioner has not met her burden of proving that proper service was made on respondent board (see Appeal of a Student with a Disability, 54 Ed Dept Rep, Decision No. 16,780; Appeal of Catalan, 47 id. 176, Decision No. 15,660; Appeal of M.D., 47 id. 51, Decision No. 15,623).

Moreover, the record contains no evidence of personal service upon the superintendent and school attorney.  Therefore, because each individual and entity would clearly be affected by a determination in petitioner’s favor, the appeal must be dismissed for failure to join necessary parties.

To the extent petitioner seeks an order directing respondent board to remove the superintendent, such request must also be dismissed as moot.  The Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest (Appeal of Sutton, 57 Ed Dept Rep, Decision No. 17,331; Appeal of a Student with a Disability, 48 id. 532, Decision No. 15,940; Appeal of M.M., 48 id. 527, Decision No. 15,937).  I take administrative notice of information published on the district’s website indicating that Barbara Walkley is no longer the district’s superintendent.  Therefore, subsequent events have rendered petitioner’s request academic (see Appeal of Budich and MacDonald, 54 Ed Dept Rep, Decision No. 16,774).

Furthermore, petitioner’s request for the removal of the school district’s attorney and the hiring of a new law firm to replace him amounts to a request that I remove the school attorney pursuant to Education Law §306.  It is well established, however, that a school attorney is not an officer of the district and, therefore, not subject to removal from office by the Commissioner of Education (Application of Balen, 40 Ed Dept Rep 250, Decision No. 14,474; Application of Rojek and Spadone, 24 id. 434, Decision No. 11,453; Application of Sterling, 23 id. 294, Decision No. 11,223).  Accordingly, the appeal must be dismissed against the school attorney.

Finally, to the extent petitioner seeks an investigation, an audit, and/or the oversight by the New York State Education Department “into the behaviors of” the board and various individuals, including the superintendent and school attorney, an appeal to the Commissioner is appellate in nature and does not provide for investigations (Appeal of D.C., 57 Ed Dept Rep, Decision No. 17,223; Appeal of Huffine, 48 id. 386, Decision No. 15,893).

In light of this disposition, I need not address the parties’ remaining contentions.

THE APPEAL IS DISMISSED.

^[1]As described more fully below, the original caption submitted by petitioner in this matter identified only the “leadership of the Beacon City School District.”  As a result, respondent’s counsel asserts that, in “an exercise of caution,” the verified answer is submitted on behalf of the “leadership of the Beacon City School District.”

^[2]In light of this determination, references below to “petitioner” refer to petitioner Rutkoske, the sole petitioner with standing to maintain the instant appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume57/d17393

Recent disciplinary findings and penalty recommendations of OATH Administrative Law Judges

Recent disciplinary findings and penalty recommendations of OATH Administrative Law Judges

Source: New York City Office of Administrative Trials and Hearings

Employee's "whistleblower defense" rejected by Administrative Law Judge

OATH Index No. 1883/17

A New York City claims examiner raised a Civil Service Law §75-b whistleblower defense to misconduct charges filed against the individual

Administrative Law Judge Noel R. Garcia found the employee did not establish that the sole motivation for petitioner’s charges was to retaliate against the employee for the complaints that he had filed.

Rather, the ALJ found that the persons who investigated and prosecuted the disciplinary matter had an independent and good faith basis to file the charges.

Among Judge Garcia's findings:

1. Petitioner proved respondent took 288 days of unauthorized absence;

2. The individual operated of a personal watercraft in Florida while on leave for a purported injury; and

3. The employee submitted false documents during the hiring process that indicated that He was employed as an Assistant District Attorney during a period when he, in fact, worked as a paralegal.

Penalty recommended by the ALJ: termination of employment.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1883.pdf

Only one of several disciplinary charges filed against the employee sustained by proof submitted by the appointing authority at the disciplinary hearing

OATH Index No. 1958/17

In response to complaints filed against a New York City correction officer, the correction officer was charged with aggravated harassment, violating EEO policies, failing to maintain professional boundaries with a female recruit and suppressing the recruit's report about his conduct.

OATH Administrative Law Judge Kara J. Miller found the evidence inconclusive on most charges because the witnesses for both sides had credibility issues, making it difficult for the appointing authority to sustain its burden of proof.

Judge Miller sustained only the charge that the officer failed to maintain professional boundaries by referring to the complainant as “redbone”.

A five-day suspension without pay was recommended.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1958.pdf

Placing employee on "emergency involuntary leave" as authorized by CSL §72.5  sustained

OATH Index No. 1750/18

An employee challenged his placement on emergency involuntary leave for unfitness to perform his job duties due to mental disability pursuant to §72.5 of the Civil Service Law.

Co-workers credibly testified about the employee’s sudden, unprovoked outbursts, his verbal altercations with women who worked in his unit and his repeated, unsupported claims that the women are sexual predators who physically and verbally harassed him.

A psychiatrist who examined the employee found the employee was unfit because he could not get along with his co-workers.

ALJ Zorgniotti found petitioner proved that the employee was unfit and that petitioner properly placed him on emergency pre-hearing leave.  

The decisions is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1750.pdf

Determining if a dispute between a public employer and an employee organization is arbitrable

Determining if a dispute between a public employer and an employee organization  is arbitrable
Matter of City of Long Beach v Long Beach Professional Fire Fighters Assn., Local 287, 2018 NY Slip Op 03356, Appellate Division, Second Department

The City of Long Beach [Long Beach] filed a petition pursuant to CPLR Article 75 seeking a permanent stay of a demand for arbitration submitted by the Long Beach Professional Fire Fighters Assn., Local 287 [Local 287].

Local 287 sought arbitration alleging that Long Beach had violated provisions set out in a collective bargaining agreement* negotiated by the parties addressing [1] the layoff of certain Long Beach firefighters and [2] the terms and conditions of employment with respect to certain paramedics when Long Beach "unilaterally set the terms of employment" for certain paramedics when they were hired.

Initially the Appellate Division observed that a public employer has wide latitude to negotiate the terms of the agreements, and can agree to submit disputes to arbitration in "the absence of plain and clear prohibitions in statute or controlling decisional law, or restrictive public policy" and, Matter of Patrolmen's Benevolent Assn. of City of N.Y., Inc. v New York State Pub. Empl. Relations Bd., 6 NY3d 563 noted that although the Taylor Law reflects New York's " strong'" policy favoring arbitration, this principle is not without limits.

New York courts use a two-part test to determine if a dispute is arbitrable, first asking if "there is any statutory, constitutional or public policy prohibition against arbitration of the grievance." In the absence of any such prohibition, the court then inquires as to whether the parties in fact agreed to arbitrate the particular dispute by examining their collective bargaining agreement.

A court must stay arbitration where it can conclude, upon the examination of the parties' contract and any implicated statute on their face, "that the granting of any relief would violate public policy."

Turning to Local 287's claim that Long Beach's decision regarding layoffs of the firefighters was subject to arbitration the Appellate Division said that Civil Service Law §80(1), Suspension or demotion upon the abolition or reduction of positions, provides that a public employer has the nondelegable discretion to determine—for reasons of economy, among others — what its staffing and budgetary needs are in order to effectively deliver uninterrupted services to the public. Accordingly, and in the absence of bad faith, fraud, or collusion, that discretion "is an undisputed management prerogative" for the public's benefit, and cannot be altered or modified by agreement or otherwise.

Thus, said the Appellate Division, arbitration of the claim regarding the layoffs of the firefighters would violate public policy.

Turning to Local 287's claims relating to the terms and conditions of employment of the paramedics, the court opined that "no public policy precludes arbitration of those claims." Further, the court noted that the arbitration provision in the CBA "permits arbitration of such claims."

* Civil Service Law Article 14, typically referred to as the "Taylor Law."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_03356.htm