Side Letter Agreements to a collective bargaining agreement

Side Letter Agreements to a collective bargaining agreement

NYC Transit Authority v PERB, 232 A.D.2d 492 

§209-a(1)(e) if the Civil Service Law provides that it is an improper employer practice to refuse to continue all the terms of an expired agreement until a new agreement unless the union has violated §210 of the Civil Service Law during or prior to the resolution of such negotiations.

Does the same rule apply with respect to instruments usually described as side letter agreements to a Taylor Law contract? This was the critical issue in New York City Transit Authority v PERB.

The Authority and the Transit Supervisors Organization [TSO] had entered into a "side letter agreement" that provided that TSO would not seek certification as the collective bargaining representative for certain enumerated Transit Authority employees.

Following the expiration of the collective bargaining agreement, TSO filed a petition with PERB asking to be certified as the collective bargaining representative for those enumerated Authority employees. The Authority objected, contending that the side letter agreement precluded TSO from filing such a petition.

PERB rejected the Authority's argument, ruling that the side letter agreement is effective only for the duration of the past collective bargaining agreement to which the side letter agreement corresponds.

The Authority appealed, only to have the Appellate Division affirm PERB's ruling. What was the Court's rationale for upholding PERB?

The Appellate Division said that TSO was not barred by §209-a(1)(e) because that provision only applies to a public employer or its agents and TSO was neither a public employer nor the agent of a public employer.

What is the significance of this ruling? It may be a signal that PERB and the courts will conclude that while an employee organization is not bound by the terms of a side letter agreement once the underlying agreement expires and no successor agreement is in place, §209-a(1)(e) mandates that an employer continue the terms set out in all side letter agreement adopted by the parties until a new agreement is negotiated.

Considering the language of §209-a(1)(e), it may not be possible for an employer to limit the life of a side letter agreement by incorporating by reference the terminal date of underlying collective bargaining agreement.

Seeking to bar arbitration based on "public policy considerations

Seeking to bar arbitration based on "public policy considerations

Sullivan County v Sullivan County Employees Asso., 235 A.D.2d 748

One of the issues in this appeal heard by the Appellate Division concerned Sullivan County's claim that the arbitration of a grievance as demanded by the Sullivan County Employees Association violated of "public policy considerations" and should be stayed.

The Association had demanded arbitration when the County denied a grievance based on the Association's claim that its action modifying a Taylor Law contract with another collective bargaining unit had triggered the "parity clause" in its agreement. The "parity clause" provided that if another bargaining unit negotiated a salary increase, those increases would be operative for employees covered by the agreement.

The Appellate Division said that to invoke a violation of public policy as justification for staying arbitration, "the violation must amount to the equivalent of a gross illegality." Although Sullivan County claimed that "parity clauses" were illegal, the Appellate Division noted that "such clauses are not per se invalid but require a case-by-case analysis."

The Courts indicated that the matter was not yet ripe for judicial consideration, commenting that if "the arbitrator's interpretation of the agreement may offend public policy, such a potential does not mandate a stay of arbitration." Rather, said the Court, if that turns out to be the case, the remedy is vacatur (reversal) of the award.

Politically motivated termination

Politically motivated termination

Martin Gordon, et al., v County of Rockland, US Circuit Court of Appeals, 2nd Circuit, 110 F.3d 886

Allegations that an employee was dismissed because of political affiliation -- or lack thereof -- has generated many law suits.

The Gordon case is instructive because it sets out the views of the U.S. Court of Appeals for the Second Circuit, which includes New York State, concerning the standards to be applied in determining if a politically motivated termination violates the constitutional rights of the individual. 

The case arose after Rockland County fired three Assistant County Attorneys -- S. Martin Gordon, Eric Ole Thorsen, and Joel J. Flick. Alleging that their terminations violated their First Amendment rights to political affiliation, the three sued in an effort to win reinstatement to their former positions. A U.S. District Court jury ruled in their favor and the County appealed.

The U.S. Circuit Court of Appeals found an error in the lower court's procedure and initiated a de novo  review of the constitutionality of the dismissals. A review de novo is, in effect, "a new trial" of the matter.

The key issue was whether or not the Rockland County attorneys' were sufficiently non-political to entitle them to First Amendment protection from partisan political termination.

Courts, including the U.S. Supreme Court, have ruled that certain policy-making and confidential employees are exempt from First Amendment protection and can be lawfully fired because of their political beliefs.

Two seminal cases on the legality of politically motivated dismissals are:

1. Elrod v Burns, 427 US 347. In Elrod the U.S. Supreme Court concluded that the politically motivated dismissals of employees in the Cook County (Illinois) Sheriff's Office was an unconstitutional interference with the employees' First Amendment freedoms of political belief and political association because the individuals terminated were not incumbents serving in "policymaking positions;" and

2. Branti v Finkel, 445 US 507. The high court said that the exemption allowing politically motivated dismissals extended to confidential employees as well as policymakers. But because Branti was neither a policymaker nor a confidential employee, he was entitled to First Amendment protection. The high court said that in evaluating whether it is permissible to dismiss an employee on the basis of political affiliation, "The focus ... should be not on the policymaking aspect of a plaintiff's employment, but rather on whether "party affiliation is an appropriate requirement" for effective job performance.

In the Rockland case, the Circuit Court of Appeals examined the nature of the attorneys' jobs and whether or not party affiliation was an appropriate requirement for job performance.

The Court considered whether its assessment of job duties should be based on the men's written job descriptions or the duties actually performed. Citing several supporting decisions, the Circuit Court said the assessment should be based on the power vested in the individual by law and the power which is inherent in the office. In other words, the job description is what counts in determining whether an employee has First Amendment  protection against politically motivated dismissals.

Gordon specialized in real property law, and handled Sewer Commission affairs;  Thorsen provided general legal services to the Highway Department and gave legal advice to the County's Planning and Parks Agencies; and Flick was an attorney in the Office of Community Development who advised municipal governments within the County as to whether their actions were in compliance with federal law.

The Court found all three positions encompassed serving as a legal advisor to a particular segment of county government, and representing the County in that capacity. This suggested they were policy-makers. The Court also analyzed whether the jobs were inherently political, using these questions as tests:

a. Is there  rational connection between shared ideology and job performance?

b. Is the employee in an exempt position and thus not subject to "civil service protection" under §75 of the Civil Service Law? [The Court cautioned that it does not presume employees are not entitled to First Amendment protection just because they are exempt from civil service protection. Also, it should be remembered that §75 covers many public employees serving in exempt or noncompetitive class positions who are honorably discharged veterans who served in time of war or who are certified as "exempt volunteer firefighters."]

c. Does the individual exercise technical competence or expertise that permits them to make independent judgment on policy matters?

d. Does the individual control or supervise others?

e. Is the individual authorized to speak in the name of policymakers?

f. Is the individual is perceived as a policymaker by the public?

g. Does the individual influence government programs?

h. Does the individual have contact with elected officials?

i. Is the individual responsive to partisan politics and political leaders?

The Court said a factor supporting a ruling that the three were protected by the First Amendment was that each was not in charge of a large group of employees. But, the Court also noted, Gordon, Thorsen, and Flick all had technical competence or expertise and each was a consultant to a specific policymaking board. Also influencing the decision was the Court's view that "the Legislature, which has perhaps the best knowledge of the responsibilities involved in the positions it created, designated these positions both as 'policymaking' and as exempt from civil service status." Of primary importance to the Court in resolving the issue, however, the fact that each of the three attorneys was empowered to act and speak on behalf of a policymaker, especially an elected official.

Editor's Note: Another aspect of the Rockland County case concerned the fact that the County Attorney was not elected but rather appointed by the Legislature, which is itself elected.

In the words of the Court, "all three plaintiffs advised the Legislature or Commissions set up by the Legislature or County Executive, both of which are elected." The Court concluded that each of the attorney's "advice to and representation of top policymaking officials in the County" justified their dismissal for political reasons.

Why? The Court said that "it is difficult to fathom how such responsibilities can be undertaken and done well without their "political or social philosophy [making] a difference in the implementation of programs."

Although the three attorneys contended that did not make policy, the Court concluded that this factor was outweighed by the evidence that they can act in the stead of the County Attorney. Further, the Court said that their claim that they "only gave legal advice" had been earlier rejected as justification for an employee coming within the Branti exception, citing the Third Circuit's ruling in Ness v Marshall, 660 F2d 517.

In Ness the Circuit Court decided that the positions of City Solicitor and Assistant City Solicitor were not protected by the First Amendment despite the solicitors' argument that they performed only "purely technical legal work." The Court said that the duties the solicitors could perform -- "rendering legal opinions, drafting ordinances, [and] negotiating contracts -- define a position for which party affiliation is an appropriate requirement."

A fair conclusion, according the Gordon ruling, is that these Assistant County Attorneys, "because of the discretion with which they are charged, and because of their authority to act on behalf of the County, are politically accountable to the Legislature and the County Executive such that their loyalty helps ensure that the mandate of the electorate is effectively carried out." The Court reversed the jury's decision in Gordon, Thorsen, and Flick favor, holding the three exempt from First Amendment protection against politically motivated dismissal.

Out of title work

Out of title work

Rausch v Pellegrini, 237 A.D.2d 771 

Muzzillo v Mt. Vernon Civil Service Commission, 238 A.D.2d 425

Muzzillo v Mt. Vernon City School District, 238 A.D.2d 424

From time to time an employee will complain that he or she is performing out-of-title work. Typically an individual who is working out-of-title, except in situations constituting a "temporary emergency," must be compensated at the appropriate salary or grade level or the out-of-title work assignment discontinued. The Rausch and Muzzillo cases involve allegations of out-of-title work.

       The Rausch Decision

To handle out-of-title work complaints expeditiously, the collective bargaining agreement between the State of New York and the Civil Service Employees Association includes a grievance procedure for resolving out-of-title work complaints.

Henry Rausch, an employee of the State Department of Correctional Services [DCS], complained that although he was being paid the salary of a Correctional Facility Food Administrator I [FFA I], as the result of a reorganization of DCS's food service system he was actually performing the duties of an FFA II. He filed an out-of-title work grievance, contending that he should be paid at the salary grade of the higher level position.

Rausch's grievance was ultimately rejected by the Governor's Office of Employee Relations on the grounds that his duties had been modified in connection with the reorganization of the food service operations in Correctional Services. He brought an Article 78 action challenging the administrative decision denying his grievance.

A State Supreme Court judge annulled the administrative determination, holding that Rausch had been required to perform out-of-title duties and the State, in turn, appealed.

Commenting that assignment of out-of-title work, other than on an emergency basis, is clearly prohibited by the Civil Service Law §61.2, the Appellate Division affirmed the lower court's ruling.

§61.2 provides that "no person shall be appointed, promoted or employed under any title not appropriate to the duties to be performed and, except upon assignment by proper authority during the continuance of a temporary emergency situation, no person shall be assigned to perform the duties of any position unless he has been duly appointed, promoted, transferred or reinstated to such position" in accordance with the Civil Service Law and the rules adopted thereunder.

Although the State contended that Rausch's duties had been modified and thus he could not be viewed as working out-of-title, the Appellate Division essentially found that Rausch was performing the duties that had been the responsibility of his former supervisor, a Correction Facility Food Administrator II, [FFA II].

The decision notes that while an FFA I is responsible for food service operations for an assigned shift, Rausch was made responsible for all food service operations at the Greene Correctional Facility, duties typically those of an FFA II, after his former supervisor was reassigned to another facility in 1991.

The Court concluded that the extension of Rausch's duties to encompass responsibility for the entire food service operation at the facility, i.e., responsibility for all food service on all shifts, seven days a week, constituted out-of-title work.

      The Muzzillo Decisions

Muzzillo and three co-workers, employed as stenographers by the Mt. Vernon City School District, complained that they were performing out-of-title work. The Mt. Vernon Civil Service Commission agreed, ruling that the duties the four were assigned justified the reclassification of their respective positions to senior stenographer.

When the District declined to reclassify their respective positions, Muzzillo and her co-workers sued.

In one action Muzzillo sought a court order directing the District to comply with the Commission's determination and reclassify their positions to Senior Stenographer or, in the alternative, to desist from requiring them to perform out-of-title work. In a second action, Muzzillo attempted to obtain a court order compelling the Commission to "enforce its determination" regarding the reclassification of their respective positions.

The Appellate Division sustained lower court rulings dismissing the petitions in both actions.

As to their law suit against the District, the Appellate Division found that the School Board, by resolution, had directed the District "to cease and desist from using [the stenographers] to perform duties inappropriate to their title." This would appear to have provided appropriate redress concerning the issue of District's assigning "out-of-title work" to the stenographers.

However, even if the Board's action did not resolve the matter to the satisfaction of the four, the Appellate Division ruled that their complaint was properly dismissed by the lower court. The Appellate Division commented that the four had failed to exhaust their administrative remedy, noting that they had not "availed themselves of the grievance procedure set forth in their collective bargaining agreement."

As to the action brought against the Civil Service Commission, the Appellate Division ruled that the School Board had acted appropriately by adopting a resolution directing the District to refrain from having the four stenographers perform out-of-title work.

The Appellate Division said that Muzzillo failed to show that the Commission is under a legal duty to enforce compliance with its determination that the four were performing senior stenographer duties. In other words, the Commission did not have any obligation to require the District to reclassify the positions merely because it found that the incumbents had been assigned to perform out-of-title work.

Although the School Board could have elected to provide for such reclassification, the Court action signals its view that discontinuing the assignment of out-of-title work is an appropriate alternative to reclassification of the positions.

The Appellate Division commented that although the Commission had urged the Board to reclassify their positions to senior stenographer, it was not required to compel the District to do so. In this regard, the Commission could exercise its discretion as to the action it would take to resolve the matter. In other words, the Commission had no legal duty to compel the reclassification of the positions in question and the fact that the School Board had acted to bar future out-of-title work constituted an appropriate resolution of the complaint.

On another point, Muzzillo had cited §§100.1.a and 102.3 of the Civil Service Law in support of her efforts to have the Commission act. §100.1.a deals with the certification of payrolls and bars the payment of salary or compensation were the responsible commission determines that an individual has been employed in violation of law. §102.3 authorizes the appropriate commission to sue to enjoin "any violation of the Civil Service Law."

Assuming, without deciding, that these provisions are relevant in these cases, apparently the Appellate Division decided that the action by School Board to prohibit further out-of-title work by the stenographers resolved the underlying issues involved.

Off duty misconduct

Off duty misconduct

People v Latanya Gray, et al., 172 Misc.2d 14

Latanya Gray, a New York City police officer, together with two co-defendants, was charged coercion, grand larceny and bribe receiving.  The three were accused of soliciting and receiving $3,000 in exchange for the promise that Gray would rescind an assault report she filed against an business owner named Daniel Leon.

Allegedly Gray had a dispute with Leon. Gray, who was not in uniform and who was not on duty at the time, summoned the police. When uniformed officers arrived at the scene, Gray told them that she was a police officer and that she wanted the officers to arrest Leon; the officers complied.

According to the ruling, when Gray was released from jail he was contacted by Andrew Johnson, Gray's cousin. Johnson allegedly said that Gray would be willing to "drop" the assault charge if Leon paid her $5,000. After some negotiation, Johnson and Leon agreed upon $3,000 as the price for dropping the charge. Later that day, Leon contacted detectives with the Internal Affairs Bureau of the New York City Police Department and enlisted their aid in the matter.

Leon gave $3,000 to Marion Kennedy while Gray was standing nearby during the exchange. The transaction was monitored by agents of the Internal Affairs Bureau, who arrested Gray and Kennedy at the scene immediately following the exchange.

Gray argued that the criminal charges filed against her were not "legally sufficient" because the charges all related to conduct "as a public servant" or "related to" or "in the nature of" her official office. She and her co-defendants contended that her agreeing to drop a complaint she made as a civilian does not render her criminally liable for the crimes with which she is charged.

The Court said that the basis for all of the charges was the abuse of power by a public servant in performing (or failing to perform) a function relating to his or her office. The judge rejected Gray's  argument that her act of making a complaint as a private citizen, then allegedly offering to withdraw that complaint in exchange for just compensation for the injury she suffered, does not constitute any of the crimes charged in the indictment.

According to the decision, "the evidence portrays Gray not as a victim seeking fair recompense, but as a manipulator and conniver who abused her authority as a police officer to coerce the complainant to pay her money because she was dissatisfied with his services. 

In addition, the Court said that the qualification urged by the Gray -- on duty status versus off-duty status -- is a distinction without a difference.

According to the Court, "[W]hile technically off-duty, in a sense, a police officer is on duty 24-hours a day. Off-duty police officers carry revolvers and are expected to and do respond to emergencies occurring in their presence whether on or off-duty."

In addition, the decision notes that courts have found that Civil Service Law §75 does not preclude imposition of discipline on a civil servant who is guilty of misconduct during off-duty hours.

Light duty assignments

Light duty assignments

Paeno v McCall, 235 A.D.2d 766

In Paeno the Appellate Division considered the impact of light duty assignments on an application for accidental disability retirement.

In December 1990 firefighter Joseph J. Paeno was injured at work. In 1992 Paeno was ordered back to work and given a "light duty" assignment. In November 1992 he filed for both accidental and performance of duty disability retirement, contending that he was unable to perform even light duty work. Both applications were rejected.

The significant issue in this decision relates to the standard to be used by the Comptroller in evaluating an application for disability retirement.

Here the Court decided that the Comptroller was not required to determine if Paeno was physically incapacitated from performing his normal duties. Rather the Comptroller was free to [and correctly] determine that the evidence failed to establish that Paeno could not perform the light duty assignments required.

The Appellate Division commented that new regulations of the Comptroller setting out new standards for evaluating disability applications were not in effect at the time the Comptroller made his determination. The Court also pointed out that the regulations were not applicable retroactively.

These  new regulations are found in 2 NYCRR 364. They provide the criteria to be used by the Retirement System insofar as the Systems considering the demands of the position in processing  an application for accidental or duty disability retirement.

Under the regulations, the System may require the employer to provide a written statement that accurately describes the actual duties performed by the applicant, together with a description of the relevant physical and, or, psychological requirements of the position. Significantly, §364.2 provides that the employer is not simply to provide the official Civil Service job description for the title of individuals if the applicant's duties and the applicant's  actual duties and the relevant job requirements are not accurately recited in the official Civil Service job description. [2 NYCRR 364.2]

Another element in the evaluation is that §364.3(a) of the regulations provides that if the applicant has been performing light, limited or restricted duties for less than two years prior to the date of his or her application for disability retirement benefits, the Retirement System will evaluate the applicant's ability to perform the job requirements of his or her regular, full duty assignment performed immediately prior the light duty assignment.

In contrast, if the applicant has been continuously assigned to light, limited or restricted duties for at least two years prior to the date of his or her application for disability retirement benefits, the evaluation is to be based on the written description of the duties and/or physical or psychological job requirements provided by the employer describing the light duty assignment.

Where, however, the applicant has performed at least 100 hours of paid overtime while on light duty during any twelve month period within the two year period prior to the filing of his or her application for disability retirement, the Retirement System will make its determination concerning on the issue of permanent incapacity on the basis of the applicant's ability to perform his or her light duty assignment.

What is the bottom line?

Under the regulations, where an individual is performing a light duty assignment at the time he or she applies for accidental or duty disability retirement benefits, the Retirement System will determine the issue of permanent disability based on:

 a. the individual's full duties of his or her position where the applicant has performed light duty for less than two years; or

b. if the applicant has performed a light duty assignment for more than two years, the issue of permanent disability will be resolved in consideration of the applicant's  actual light duty assignment.

Police officer dismissed after presenting and using false identification for self-identification

Police officer dismissed after presenting and using false identification for self-identification

Ildefonso v Bratton, 238 A.D.2d 142

One of the disciplinary charges filed against New York City police officer Gilberto Ildefonso alleged that he had brought a dog -- the precinct "mascot" -- to the ASPCA, presumably to be put to sleep. Ildefonso was accused of giving the ASPCA a false name, a false badge number and a false precinct. He also was charged with lying about the origin of the dog in documents he gave to the ASPCA concerning the animal.

Why did Ildefonso use false identification and misstate the facts? According to the Appellate Division, he did so in order "to avoid a potential unpleasantness concerning the fellow officer who owned and cared for this precinct mascot."

Found guilty, the Commissioner of Police dismissed Ildefonso from the force. The Appellate Division upheld the termination.

What was the Appellate Division's rationale in upholding the penalty imposed?

The Court said that "even if one were favorably disposed toward [Ildefonso] in connection with the other charges, the critical fact remains that [Ildefonso] lied with respect to matters of self-identification particularly important to police work and integrity."

The Appellate Division said courts give "great leeway" to the Commissioner's determination in disciplinary matters. It said that the Commissioner's decision was entitled to such great leeway in matters of police discipline and punishment because the Commissioner, and not the courts, is accountable to the public for the integrity of the Department."

Eligibility for GML 207 benefits

Eligibility for GML 207 benefits

Dearman v City of White Plains, 237 A.D.2d 603

Although William H. Dearman, a White Plains firefighter, was approved for accidental disability retirement benefits by the Police and Fire Retirement System, White Plains denied Dearman's application for General Municipal Law §207-a benefits. Dearman sued, seeking a court order compelling the City to pay him §207-a supplemental benefits.

The Appellate Division ruled that Dearman's petition was untimely, having been filed more than four months after the City had made its "final determination." Of greater significance, however was the Appellate Division's observation that the lower court was incorrect in viewing Dearman's action to be in the nature of mandamus to compel the City to perform a statutory duty.

According to the decision, the City is allowed to make its own determination as to whether Dearman was entitled to §207-a benefits and the Retirement Systems determination granting Dearman §363 disability benefits did not preclude the City from finding him ineligible for §207-a benefits. The Appellate Division noted the Court of Appeals' decision in Cook v City of Utica, 84 NY2d 833 concerning this point.

Duty of fair representation

Duty of fair representation

Ponticello v County of Suffolk, 225 A.D.2d 751

Joseph Ponticello filed a grievance. When the grievance was denied by Suffolk County, Ponticello asked his union, the Association of Deputy Sheriffs and Correction Officers, to demand arbitration. The union refused to demand arbitration and Ponticello sued the County, seeking a judgment confirming his right to arbitration under the collective bargaining agreement.

In reversing a State Supreme Court judge's ruling in Ponticello's favor, the Appellate Division addressed an number of issues concerning a union's duty of fair representation and the right of a member of the bargaining unit to pursue "self-help" should the union decline to proceed with the arbitration of a grievance.

The Appellate Division ruled that in order for Ponticello to prevail, he had to prove that the union's action constituted discrimination, arbitrariness or invidious or hostile treatment. The decision makes the following points regarding an employee's right to demand arbitration if the union elects not to do so:

1. If an employer and an union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract.

2. A union is not required to pursue arbitration in every grievance filed by a member of the negotiating unit and its failure to demand arbitration is not, standing alone, a breach of its duty of fair representation.

3. An employee may demand arbitration or sue the employer directly only if the collective bargaining agreement allows an employee to bring such an action or if the union breaches it duty of fair representation.

The Appellate Division found that the collective bargaining agreement gave the Association full control of which grievances may be submitted to arbitration. As Ponticello failed to establish that the Association had breached its duty of fair representation, he had no standing to sue the County.

Editor's Note: In Alston v Transport Workers Union of Greater New York, the Appellate Division pointed out that an amendment to the Civil Practice Law and Rules [Chapter 467, Laws of 1990], reduced the statute of limitations for bring an action against a union for breach of its duty of fair representation from six years to four months [§217(2)(a), CPLR]. The four months period commences to run from the date on which the employee knew or should have known that the breach had occurred or the date the employee suffers actual harm, whichever is later.

Drug tests for elected office

Drug tests for elected office

Chandler v Miller, Governor of Georgia, US Supreme Court, 520 U.S. 305

A Georgia statute requires candidates for designated state offices to certify that they have taken a urinalysis drug test within 30 days prior to qualifying for nomination or election and that the test result was negative. Libertarian Party candidates sued, arguing that the law violated their Fourth Amendment protection against unreasonable search.

The U.S. Supreme Court, in an opinion by Justice Ginsburg, decided that the Georgia law was unconstitutional because it failed to overcome the general principle that a search is justifiable only in the event of individualized suspicion. The Court said that to be reasonable under the Fourth Amendment, a search ordinarily must be based on individualized suspicion of wrongdoing.

While there are a number of "particularized exceptions" to this main rule based on "special needs, beyond the normal need for law enforcement," the Supreme Court said that  "when such "special needs" - concerns other than crime detection - are alleged in justification of a Fourth Amendment intrusion, courts must undertake a context-specific inquiry, examining closely the competing private and public interests advanced by the parties," referring to its ruling in Von Raab, 489 U S at 665-666.

Georgia, the Court decided, failed to show a special need sufficient to override an individual's privacy interest or sufficiently vital to its interests to justify suppressing the Fourth Amendment's normal requirement of individualized suspicion for requiring an individual submit to testing for illegal drugs.

Holding that Georgia's requirement that candidates for state office pass a drug test does not fit within the closely guarded category of constitutionally permissible suspicionless searches, the high court reversed the Eleventh Circuit's ruling upholding the statute. The ruling is consistent with decisions by New York State courts that, except where a negotiated agreement or statute authorizes or requires random drug testing, a public employer must have reasonable cause or justified suspicion to require an employee to take an involuntary drug test.

Appealing disciplinary decisions

Appealing disciplinary decisions

Wood v Cosgrove, 237 A.D.2d 616

Marilyn Wood appealed her demotion from her position as head clerk after being found guilty of two counts of incompetence to the Suffolk County Civil Service Commission pursuant to §76.3 of the Civil Service Law. When the Commission rejected her appeal as untimely, Wood challenged its ruling by filing an Article 78 petition.

§76.1 provides that appeals to the commission having jurisdiction shall be made within 20 days of the receipt of written notice of the determination to be reviewed. In the alternative, §76.1 allows the employee to appeal by filing an Article 78 petition with the court. The Statute of Limitations for filing an Article 78 petition is four months.

The Appellate Division affirmed a New York State Supreme Court ruling dismissing her Article 78 appeal on the grounds that the proceeding was barred by §76.3 of the Civil Service Law because she had elected to pursue an "administrative appeal." In addition, the Court said that Wood failed to demonstrate that the Commission's denial of her appeal as untimely was "in violation of State law, or that the Commission acted illegally, unconstitutionally or in excess of its jurisdiction."

In another case, also captioned Wood v Cosgrove, Wood unsuccessfully challenged her termination from her position with the Suffolk County Police Department after being found guilty of five specifications of misconduct. Wood claimed that she had been prejudiced by the hearing officer's refusal to "recuse herself" from the proceeding, which action demonstrated bias. 

The Appellate Division said that Wood had failed to rebut the presumption of the integrity of those serving as adjudicators.  The Court also said that the determination of the hearing officer was supported by substantial evidence in the record.

Sick leave abuse

Sick leave abuse

People v Robert Patino, Nassau County Court, affirmed, 259 A.D.2d 503

Robert Patino, a Nassau County police officer, was convicted of "disability fraud" after a jury found that he had collected sick leave payments for more than three years while he was able to work. Patino was charged with sick leave abuse and falsifying his application for Retirement and Social Security Law §207-c disability benefits.

Although Patino claimed that his back injury prevented him from performing even light duty work, it was reported that he was video taped doing a number of physical activities including bending and diving.

Charges filed against Patino: (1) Offering a False Instrument for Filing in the First Degree (Penal Law §175.35); (2) Attempted Grand Larceny in the Third Degree (§110/155.35); (3) Grand Larceny in the Third Degree (§155.35) and (4) Defrauding the Government (§195.20).

Among his defenses, Patino argued that because he was the first police officer to be prosecuted on such charges, this constituted his being "selectively and vindictively prosecuted in violation of his Fourteenth Amendment Rights." This, he contended, required that the indictment be dismissed "in the furtherance of justice." He did not prevail. The penalty imposed: 5 years probation plus a $5,000 fine. In addition, the Court ordered Patino to reimbursing Nassau County the $17,500 it incurred while investigating the matter as restitution.

On the issue of selective prosecution, the parties agreed that Patino was the first Nassau County police officer to be prosecuted for filing allegedly fraudulent disability applications or for the alleged fraudulent use of sick leave.

This, said the Court, "while meaningful, is not controlling." There exists no per se ban on one or another type of new prosecution. In other words, the fact that no one had been prosecuted for similar offenses in the past did not preclude the County from prosecuting Patino.

The decision comments that in order to sustain a claim of selective prosecution, it must be proven that a law has been (a) "applied and administered by a public authority with an evil eye and (b) an unequal hand," a standard set out by the U.S. Supreme Court in Yick Wo v Hopkins [118 US 356].

In other words, said the Court, "(T)here must be not only a showing that the law was not applied to others similarly situated but also that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some arbitrary classification," citing 303 West 42nd Street Corp. v. Kelly, 46 NY2d 684.

The Court further noted that the Nassau County District Attorney, not the Nassau County Police Department, was prosecuting the case. Although the Police Department did the initial investigation and fact-gathering concerning Patino, it was the District Attorney's Office that subsequently reviewed and evaluated the information and decided to prosecute.

Another argument made by Patino was that criminal action could not be taken against him until he had been given a General Municipal Law "§207-c hearing."  The Court said that there is nothing to indicate that utilization of such a civil, administrative procedure in any way precludes the District Attorney from proceeding criminally against Patino.

The Court refused to dismiss the action against Patino, holding that "[a] dismissal in furtherance of justice would have a significant impact upon the public's confidence in our justice system. When a police officer, sworn to enforce the law, is charged with a crime, the public's confidence in the system is eroded. An outright dismissal of the charges prior to trial would damage this confidence still further."