The statute of limitations set out in Civil Service §75(4) does not control where the charges alleged would, if proved in a court, constitute a crime

The statute of limitations set out in Civil Service §75(4) does not control where the charges alleged would, if proved in a court, constitute a crime

Snowden v Village of Monticello, 2018 NY Slip Op 08226, Appellate Division, Third Department

In July 2016 the Village of Monticello's Building Inspector and Code Enforcement Officer [Petitioner], was served with a notice and statement of disciplinary charges pursuant to §75 of the Civil Service Law. Charge 1 alleged that Petitioner had "committ[ed] acts constituting crimes," related to "the unauthorized demolition of a building in October 2013, and the failure to properly abate the asbestos contained therein."* Petitioner denied the allegations and contended that Charge 1 as untimely, citing Civil Service Law §75(4). 

In September 2016, following a hearing, the §75 Hearing Officer found that Charge 1 was not time-barred and was supported by substantial evidence. The Hearing Officer recommended the appointing authority impose termination of Petitioner from his position as the penalty. Adopting the findings and recommendation of the Hearing Officer, the appointing authority terminated Petitioner's employment with the Village.

Petitioner commenced an CPLR Article 78 proceeding seeking a court order annulling the appointing authority's determination. Supreme Court transferred the matter to the Appellate Division. 

Petitioner's primary contention on appeal was that Charge 1 should have been dismissed as untimely.

The Appellate Division noting that although §75(4) provides that "no removal or disciplinary proceeding shall be commenced more than eighteen months after the occurrence of the alleged incompetency or misconduct complained of and described in the charges, observed that "this limitations period does not apply 'where the incompetency or misconduct complained of and described in the charges would, if proved in a court of appropriate jurisdiction, constitute a crime.'"

§75.1 Specification 1 of Charge 1 incorporated the allegations set out in Petitioner's related nine-count criminal indictment stemming from the same underlying conduct and events. Rejecting Petitioner's assertions to the contrary, the Appellate Division said that — by statutory directive — its inquiry was "limited to the allegations contained in the charges and specifications, without consideration of the proof or papers submitted in Petitioner's subsequent judicial proceeding (or at any ensuing disciplinary hearing) challenging the charges as untimely."

The court then explained that in count 8 of the criminal indictment Petitioner was alleged to have "knowingly, unlawfully and intentionally engage[d] persons to effect the unauthorized demolition of the [building], knowing that unabated asbestos was located therein or thereupon, causing the release of a substance hazardous to public health, safety or the environment, said substance being asbestos." If proven, said the court, these allegations would constitute the crime of endangering public health, safety or the environment in the fourth degree (see ECL 71-2711[3]."

Further, said the Appellate Division, count 9 alleges that Petitioner, "with regard to the demolition of the building, ... "engag[ed] persons neither certified nor qualified to abate the asbestos located therein, . . . knowing that asbestos was located therein, such demolition having been performed without asbestos abatement or any reasonable procedure to prevent the release of asbestos into the public air, . . . [and] having released a considerable amount of [asbestos] dust and debris into the air" in a populated area." These allegations, said the court, would, if proven at trial, constitute the crime of criminal nuisance in the second degree, citing Penal Law §240.45[1]. 

The Appellate Division further found that "the allegations against [Petitioner] as detailed in counts 5 through 7 would constitute, if established at trial, official misconduct," citing Penal Law §195.00[2].

Thus, said the court, the Hearing Officer properly found that the charge is not time-barred within the meaning of Civil Service Law §75[4].

As to Petitioner's argument that the appointing authority's determination should be annulled as unsupported by substantial evidence, the court said the appointing officer's determination to terminate Petitioner's employment pursuant to Civil Service Law §75 must be sustained if supported by substantial evidence. In conducting its review the Appellate Division, the court cited Matter of Longton v Village of Corinth, 57 AD3d 1273, leave to appeal denied 13 NY3d 709, and said "this Court may not substitute its own judgment for that of [appointing authority], even when evidence exists that could support a different result." Further, in the event there is conflicting evidence, the Appellate Division said it must defer to the Hearing Officer's credibility determinations.

Finding that there was substantial evidence in the record to support finding Petitioner guilty of the charges served upon him pursuant to §75 alleging that he had committed acts of misconduct that constituted crimes," the Appellate Division sustained the appointing authority's decision to impose the penalty of termination of Petitioner's employment.

Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

* The Appellate Division had previously issued a decision in the related criminal appeal (See People v Snowden, 160 AD3d 1054). 

The Village of Monticello decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08226.htm

Court denies educator's motion to rescind a settlement agreement resolving a disciplinary action because the educator had a change of mind

Court denies educator's motion to rescind a settlement agreement resolving a disciplinary action because the educator had a change of mind

Nobile v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2018 NY Slip Op 08065, Appellate Division, First Department

Philip Nobile, a former tenured teacher employed by the New York City Department of Education [DOE], sought to rescind a stipulation with DOE settling disciplinary charges brought against him. The stipulation, signed by Nobile, his attorney, and DOE's attorney on October 7, 2016, provided that in exchange for DOE's agreement to discontinue the disciplinary hearing on the pending misconduct charges and to take no further disciplinary action against Nobile while Nobile agreed "to irrevocably retire from his employment with [DOE], effective close of business January 31, 2017."

Annexed to the stipulation was a letter signed by Nobile addressed to the District Superintendent stating, "I hereby irrevocably retire from [DOE], effective close of business January 31, 2017." The stipulation contained a signature line for the Superintendent, who signed it several days later. However before the Superintendent signed the stipulation Nobile notified DOE that he had changed his mind and wanted to rescind the stipulation. When DOE rejected Nobile's efforts to rescind the stipulation, Nobile sued. Supreme Court dismissed Nobile's the complaint and granted DOE's motion to dismiss the complaint, which actions were unanimously affirmed by the Appellate Division.

Although Nobile argued that the stipulation was unenforceable when he changed his mind because not all the parties had signed it, the Appellate Division held that "[t]his argument is unavailing." The court explained that the stipulation signed by Nobile and the attorney acting on behalf of DOE is binding under general contract principles, citing Hallock v State of New York, 64 NY2d 224, as Nobile failed to show that there was fraud, collusion, mistake or accident with respect to the execution of the settlement by Nobile, or that DOE's counsel lacked DOE's consent to enter into the stipulation. Nor, said the Appellate Division, was Nobile's parol evidence, offered to show that the parties did not intend to be bound by the stipulation until the Superintendent had signed it, admissible to add to or vary the terms of the writing.

As Nobile's agreement to retire was irrevocable, and he understood its consequences, his change of mind is not a cause sufficient to set aside his agreement to the stipulation  (see Barclay v Citibank, N.A., 136 AD3d 551, lv to appeal dismissed 27 NY3d 1077).

Nor was Nobile's parol evidence, offered to show that the parties did not intend to be bound by the stipulation until the Superintendent had signed it, admissible to add to or vary the terms of the writing.

A similar result applies with respect to an employee's attempting to withdraw his or her resignation.

Smith v Kunkel, 152 AD2d 893, concerned the issue of an employer’s refusal to permit an employee to withdraw a resignation following its delivery to the appropriate appointing authority.

Smith, a permanent state employee with the State Division of Equalization and Assessment, submitted his resignation for “personal reasons.” The resignation was dated August 21 and was to take effect the following September 3.

On August 29 Smith wrote the Division “seeking to withdraw and rescind” his resignation. Kunkel, the Division’s Administrative Officer, noting that the resignation had been “accepted on August 21,”* refused to approve Smith’s request to withdraw his resignation, citing 4 NYCRR 5.3(c) of the Rules for the Classified Service.**

Further, §5.3 of the Rules provides that if an effective date is specified in the resignation it takes effect on that date; if no date is specified it takes effect “upon delivery or filing in the office of the appointing authority.” 4 NYCRR 5.3 tracks Public Officers Law §31.2 as to the submission of resignations by public officers.

Under the Rules, however, the appointing authority may disregard the resignation in the event disciplinary charges have been filed, or are about to be filed, against the employee and proceed with the disciplinary action notwithstanding the receipt of the resignation.

Finally, the ruling in Silverman v McGuire, 51 NY2d 228, suggests that where the appointing authority makes the final determination with respect to approving the terms and conditions of a stipulation settling a disciplinary action it would be prudent for:

1. The employer’s representative to insist that any settlement of a disciplinary action include a statement to the effect that the settlement is subject to the approval of the appointing authority; and

2. The employee or the employee’s representative to insist on a provision spelling out what is to happen if the appointing officer does not agree to imposed the penalty set out in the settlement proposal.

* Except were otherwise provided by law, all that is required for a resignation to become operative is its delivery to the appointing authority; approval or acceptance of the resignation is not required for the resignation to take effect [Hazelton v Connelly, 25 NYS2d 74]. At most, all that an appointing authority might do is to “acknowledge the receipt” of the employee’s resignation.

** 4 NYCRR 5.3(c) applies to employees of the State as the employer. Many local civil service commissions and personnel officers have adopted a similar rule.

The Nobile decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08065.htm

Supreme Court of Florida weighs in on judges using social media

New York attorney Nicole Blackhas posted an article on her lawblog Sui Generis captioned Supreme Court of Florida weighs in on judges using social media.

The article is posted on the Internet at: https://nylawblog.typepad.com/suigeneris/2018/11/supreme-court-of-florida-weighs-in-on-judges-using-social-media.html?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+SuiGeneris--aNewYorkLawBlog+%28Sui+Generis--a+New+York+law+blog%29

Employee's termination recommended after being found guilty of multiple charges and specifications

Employee's termination recommended after being found guilty of multiple charges and specifications

Dep’t of Transportation v. Mirhosseini, OATH Index No. 916/18

A computer associate employed by the New York City Department of Transportation was charged with multiple act of misconduct.

OATH Administrative Law Judge Ingrid M. Addison found the employee guilty of charges and specifications alleging the employee's:

● Being late and absent without leave on numerous occasions;

● Sleeping and lounging on the job on at least 10 occasions;

● Failing to promptly perform her assigned tasks on two occasions;

● Failing to comply with her supervisor’s directive to attend a training session;

● Being on social media on the job via the use of the office computer;

● Becoming loud and disruptive to her supervisor;

● Using Agency’s e-mail system to send abusive e-mails to recipients mainly comprised of her supervisors and directors;

● Sending false information about her director via e-mail which she copied to another New York City agency; and

● Failing to notify her supervisor, the office of labor relations, and the department of investigations that she had been arrested.

Judge Addison recommended that the Department impose the penalty of termination in view of the multitude acts of misconduct for which the employee had been found guilty.

Authority of an employer to prohibit an employee's legal use of marijuana permitted by state law

Authority of an employer to prohibit an employee's legal use of marijuana permitted by state law

Lance Carlson v. Charter Communications, LLC, USCA, 9th Circuit, No. 17-35917 

N.B. - In handing down this decision the 9th Circuit said "This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3."

§§50-46-320(4)(b) and 50-46-320 (5) of the Montana Marijuana Act [MMA] neither bars employers from prohibiting their employees from using marijuana nor authorizes wrongful termination or discrimination suits against employers.

After Charter Communications fired one of its employees, Lance Carlson, for his legal marijuana use outside of work, in violation of the company's employment policies set out in its employment handbook, Carlson sued Charter alleging wrongful termination and unlawful discrimination.

A Montana District Court dismissed Carlson's complaint and then refused to certify the question of whether these provisions of the MMA were constitutional to the Montana Supreme Court. Carlson appealed the Montana District Court's ruling.

The United States Circuit Court of Appeals, 9th Circuit, affirmed the Montana District Court's ruling explaining that:

 [1] the MMA does not preclude a federal contractor from complying with all the requirements of the Drug-Free Workplace Act (DFWA), 41 U.S.C. §8102; and 

   [2] the MMA does not violate the Montana constitution.*

The Circuit Court observed that MMA is "rationally related to Montana’s legitimate state interest in providing 'careful regulation of access to an otherwise illegal substance for limited use by persons for whom there is little or no other effective alternative' while avoid[ing] entanglement with federal law.” In addition, the Circuit Court, noting that the United States Congress had adopted an appropriations rider currently restricting the Department of Justice from spending funds to prosecute individuals who comply with state marijuana laws, opined that "this temporary rule does not undercut Montana’s legitimate state interests."

In the words of the Circuit Court, "[t]he district court did not abuse its discretion in denying Carlson’s request to certify the question whether sections 50-46-320(4)(b) and (5) are constitutional to the Montana Supreme Court, because it is not an unclear question of state law appropriate for certification."

Lisa M. Schaffer, Esq., in an article posted on the Internet by FindlLaw,** notes that "A state could have a Marijuana Act that specifically prohibits employers from requiring drug-free employees. For instance, in 2018, Maine became the first state to protect workers and their non-workplace marijuana use by forbidding employers from drug testing for marijuana. Specifically, Maine's Act to Legalize Marijuana forbids employers from discriminating against employees based on their legal marijuana use, though it does allow employers to prohibit the use and possession of marijuana 'in the workplace.'" 

* The Carlson decision is posted on the Internet at:

https://cdn.ca9.uscourts.gov/datastore/memoranda/2018/11/19/17-35917.pdf

** See https://blogs.findlaw.com/decided/2018/11/fired-marijuana-user-cant-sue-employer-in-montana.html?DCMP=cons_top:nwl

Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to §75 of the Civil Service Law

Rejecting the findings of the hearing officer and the penalty recommended following a disciplinary action conducted pursuant to Civil Service Law §75 

O'Connor v Cutting, 2018 NY Slip Op 07379, Appellate Division, Third Department

An Essex County deputy sheriff was served four disciplinary charges pursuant to Civil Service Law §75. The appointed Hearing Officer partially sustained two of the four charges and dismissed all the remaining charges. As to the penalty to be imposed, the Hearing Officer recommended that the deputy sheriff be suspended without pay for two months.

The Sheriff then appointed the County Manager to review the §75 Hearing Officer's findings and recommendation and make the final determination. After reviewing the hearing transcripts and exhibits, the City Manager issued a determination that rejected the §75 Hearing Officer's findings, sustained three of the charges and recommended that the deputy sheriff's employment be terminated.

The Sheriff adopted the City Manager's determination and recommended penalty and terminated the deputy sheriff'. The deputy sheriff challenged the Sheriff's decision and sought a court order annulling the City Manager's determination finding her guilty of the disciplinary charges or, in the alternative, an order vacating the penalty of dismissal imposed by the Sheriff. Supreme Court transferred the matter to the Appellate Division, which affirmed the Sheriff's decision.

Citing Matter of Kuznia v Adams, 106 AD3d 1227, the court explained that "The standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence in the record as a whole."

Addressing the deputy sheriff's argument that the City Manager had "improperly substituted his own credibility determinations for those of the Hearing Officer," the Appellate Division said that the credibility determinations of a hearing officer are not binding upon the official charged with making a final determination, "who, in the exercise of his or her duty to weigh the evidence and resolve conflicting testimony, may make different factual findings and conclusions, provided they are supported by substantial evidence."

Finding that the City Manager had provided specific reasons for his credibility determinations that were supported by logical inferences drawn from the testimony and the additional evidence that had been adduced at the hearing and that the deputy sheriff was "the least credible witness," the Appellate Division said it found that the City Manager's "factual findings and conclusions" were supported by substantial evidence.

As to the penalty imposed on the deputy sheriff, dismissal from her position, the Appellate Division said that it found that the penalty of termination was "not excessive."

The court said that a penalty imposed by the appointing authority following a §75 disciplinary hearing must the upheld "unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law," with due consideration given as to "whether the impact of the penalty on the individual is so severe that it is disproportionate to the misconduct, or to the harm to the agency or the public in general."

Finally the Appellate Division observed that it was mindful that great leeway must be accorded in matters concerning police discipline because "a higher standard of fitness and character pertains to police officers than to ordinary civil servants" and, inasmuch as strict discipline is essential for law enforcement administration, "the penalty of dismissal has been routinely upheld for officers who have disobeyed direct orders."

Here, said the court, "we cannot say that dismissing petitioner from her position as a deputy sheriff for disobeying a direct order shocks our sense of fairness."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07379.htm

Employee terminated for using department vehicle for non-work related purposes

Employee terminated for using department vehicle for non-work related purposes

Dep’t of Transportation v. Mirhosseini, OATH Index No. 916/18

A civil engineer with the New York City Department of Transportation was charged with repeatedly using a Department van for non-work related purposes; altering trip log sheets; misrepresenting his use of the vehicle by omitting entries on the trip log sheets; and failing to follow the directives of his supervisor.

OATH Administrative Law Judge Kara J. Miller did not credit employee’s claim that his supervisor had given him permission to use the van to run his personal errands and sustained those charges.

Judge Miller, however, found that the appointing authority did not prove that the employee falsified his time records or that he fraudulently received compensation for time he did not work.

The ALJ recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.

The protections of §75 of the Civil Service Law are triggered only if an individual subject to its provisions is terminated for misconduct or incompetence

The protections of §75 of the Civil Service Law are triggered only if an individual subject to its provisions is terminated for misconduct or incompetence

Michel v City of Lackawanna, 2018 NY Slip Op 02070, Appellate Division, Fourth Department

James L. Michel, Jr. commenced a CPLR Article 78 proceeding in Supreme Court seeking a court order reinstating "the compensation and benefits" to which he claim he was entitled pursuant to a contract between the parties. Subsequently Michel moved for summary judgment on the ground that he was unlawfully denied the procedural protections due to him under §75 of the Civil Service Law.

Section 75 provides that certain civil servants "shall not be removed or otherwise subjected to any disciplinary penalty provided in this section except for incompetency or misconduct shown after a hearing upon stated charges."

Supreme Court denied Michel's motion for summary judgment and he appealed the court's decision. The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division explained that "[i]t is well settled" that §75 of the Civil Service Law "prescribes the procedures for removal of a protected employee charged with delinquencies in the performance of his [or her] job."

Citing NYS Office of Children and Family Services v Lanterman, 14 NY 3d 275, the Appellate Division said that it is undisputed that Michel "did not engage in any conduct that would have subjected him to allegations of incompetence or misconduct" and concluded that §75 of the Civil Service Law was inapplicable in his situation.

In Lanterman the Court of Appeals held that the grievances brought by two employees, Lanterman's and Ortiz's, challenging their dismissal from their respective positions were not subject to arbitration because Lanterman's and Ortiz's dismissals were not for disciplinary reasons but because the employees' lacked the qualifications necessary for their respective positions. 

In addition, the  Court of Appeals noted it "approved the distinction made by the Appellate Division in Mandelkern v City of Buffalo, 64 AD2d 279, between issues of 'job performance, misconduct or competency,' which are subject to Civil Service Law disciplinary procedures, and 'a qualification of employment,' which is not."

The Michel decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02070.htm

The Lanterman decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2010/2010_02432.htm

Employee terminated for using department vehicle for non-work related purposes

Employee terminated for using department vehicle for non-work related purposes

Dep’t of Transportation v. Mirhosseini, OATH Index No. 916/18

A civil engineer with the New York City Department of Transportation was charged with repeatedly using a Department van for non-work related purposes; altering trip log sheets; misrepresenting his use of the vehicle by omitting entries on the trip log sheets; and failing to follow the directives of his supervisor.

OATH Administrative Law Judge Kara J. Miller did not credit employee’s claim that his supervisor had given him permission to use the van to run his personal errands and sustained those charges.

Judge Miller, however, found that the appointing authority did not prove that the employee falsified his time records or that he fraudulently received compensation for time he did not work.

The ALJ recommended that the employee be terminated from his position, which recommendation was adopted by the appointing authority.

Collective bargaining agreement gave appointing authority discretion to grant or deny leave requests

Collective bargaining agreement gave appointing authority discretion to grant or deny leave requests

Rockland Co. Correction Officers BA and Rockland Co., 30 PERB 3019

The Correction Officers' Benevolent Association of Rockland County filed an unfair labor practice charge with PERB complaining that the Rockland County Sheriff had issued a directive that unilaterally ended a procedure under which all written leave requests were routinely approved regardless of the number of officers on leave from the same shift.

The Association also charged that for the first time "a quota" on the number of officers permitted to take certain types of leave simultaneously was unilaterally imposed.

PERB sustained the administrative law judge's dismissal of the charge. It noted that the relevant collective bargaining agreement provided that "personal leave may be drawn only upon written request ... at a time convenient to and approved by the Sheriff; provided, however, that personal leave allowed for religious observance shall be granted on the days and hours required, insofar as the same may be granted without interference with the proper conduct of government functions."

PERB said that the contract gave the Sheriff broad discretion to grant or deny leaves based on his convenience and the proper conduct of government functions and that the Association had waived its right to complain about the Sheriff's exercising his discretion.

PERB concluded that the directive issued represented the exercise of a negotiated right, it was bilateral in nature and did not violate the employer's duty to bargain, which had been previously satisfied by agreement.

Requiring an employee to undergo a medical examination to determine his or her fitness to properly perform his or her duties

Requiring an employee to undergo a medical examination to determine his or her fitness to properly perform his or her duties

Brown v Bratton, 2018 NY Slip Op 07541, Appellate Division, First Department

Subdivision 1 of §72 of the Civil Service Law, Leave for ordinary disability, provides, in pertinent part, that "[w]hen in the judgment of an appointing authority an employee is unable to perform the duties of his or her position by reason of a disability, other than a disability resulting from occupational injury or disease as defined in the workers' compensation law, the appointing authority may require such employee to undergo a medical examination to be conducted by a medical officer selected by the civil service department or municipal commission having jurisdiction. Written notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position shall be provided to the employee and the civil service department or commission having jurisdiction prior to the conduct of the medical examination."

Supreme Court denied Lisa Brown's petition seeking to annul and vacate New York Police Department's [NYPD] decision to refer her for a fitness-for-duty evaluation that ultimately resulted in Brown's suspension without pay for 58 days for "disobeying orders to sign Health Insurance Portability and Accountability Act [HIPAA] releases."

Brown alleged that NYPD had required her "to submit to a fitness-for-duty evaluation without complying with Civil Service Law §72." Supreme Court ruled that NYPD's actions were not arbitrary and capricious and Brown's allegations were not supported by substantial evidence.

The Appellate Division unanimously affirmed the Supreme Court's ruling.

The Appellate Division decided that Brown failed to show that §72 was implicated in the New York Police Department [NYPD] decision to refer her for a fitness-for-duty evaluation. Although noting that §72 clearly states that "its procedural protections are triggered when an employer has determined that an employee is unfit for duty, at which point the employee is entitled to written notice of the grounds for the determination and an opportunity to challenge those grounds at a hearing," the Appellate Division said that witnesses for the NYPD had testified that, at the time Brown was referred for evaluation, NYPD [1] had not reached this threshold determination and [2] that the purpose of the evaluation was to insure, Brown's "worrisome on-the-job conduct notwithstanding", that she remained fit for duty.

The Appellate Division said that NYPD could not have provided Brown with the written notice to which she claims she was entitled because "it had neither adjudged her unable to perform her duties nor placed her on leave."

In any event, §72.1 vests such decision making in "a medical officer selected by the civil service department or municipal commission having jurisdiction," and requires the appointing authority to provide "[w]ritten notice of the facts providing the basis for the judgment of the appointing authority that the employee is not fit to perform the duties of his or her position ... be provided to the employee and the civil service department or commission having jurisdiction prior to the conduct of the medical examination."

§72.1 further provides that "[i]f, upon such medical examination, such medical officer shall certify that such employee is not physically or mentally fit to perform the duties of his or her position, the appointing authority shall notify such employee that he or she may be placed on leave of absence. An employee placed on leave of absence pursuant to this section shall be given a written statement of the reasons therefor. Such notice shall contain the reason for the proposed leave and the proposed date on which such leave is to commence, shall be made in writing and served in person or by first class, registered or certified mail, return receipt requested, upon the employee. Such notice shall also inform the employee of his or her rights under this procedure. An employee shall be allowed ten working days from service of the notice to object to the imposition of the proposed leave of absence and to request a hearing."

In contrast, §72.5 provides that "if the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property or would severely interfere with operations, it may place such employee on involuntary leave of absence immediately."

As to suspending an employee "for disobeying orders to sign HIPAA releases," it would appear that such an offense would result were the employee to decline to sign a HIPAA release requested by the medical officer selected by the civil service department or municipal commission having jurisdiction to evaluate the employee.

The Appellate Division found that NYPD's orders "were tailored to receive information from the medical providers that [Brown] had identified and, moreover, were further limited by subsequent agreement."

NYPD, said the court, "showed that the disclosure they ordered [Brown] to provide was appropriate in light of public safety considerations in view [of Brown's position as a] Supervisor Police Communication Technician, insuring that emergency 911 calls were immediately and accurately routed to the appropriate emergency responders, implicated public safety issues, giving the NYPD an interest in the records sufficient to outweigh [Brown's] privacy rights," citing O'Connor v Pierson, 426 F3d 187.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07541.htm

Waiving a teacher's right to tenure

Waiving a teacher's right to tenure

Costello v East Islip UFSD, 250 A.D.2d 846

Is tenure for teachers an anachronism? A number of school districts have considered eliminating it. Thus far the courts have declined to allow them to do so.

In Conetta v Patchogue-Medford Union Free School District, 165 Misc.2d 329, a New York State Supreme Court ruled that a school board could not refuse to grant tenure to a teacher who had successfully completed his or her probationary period because it believed that "that tenure at the elementary and secondary school level was essentially guaranteed job security ... coupled with automatic salary increases."

Apparently mindful of the Conetta ruling, a Board of Education decided to take a different tack in an effort to avoid having to give newly hired teachers tenure upon their satisfactory completion of probation: the East Islip Union Free School District's Board adopted a resolution providing that all new teachers hired by the School District were to be employed under individual contracts providing for specified terms of employment.

These contracts specified that the newly appointed teachers were employed "in non-tenure-bearing positions." To emphasis the point, the contracts also included provisions intended to constitute "waivers" of the probation and disciplinary rights provided to teachers in the Education Law.

Lynn Costello and a number of other newly appointed teachers had signed these agreements. They subsequently decided to challenge these terms in their contracts and asked a State Supreme Court judge to do three things:

 (1) Annul the contracts that they had signed;

(2) Issue an order compelling the District to appoint them as probationary teachers pursuant to Education Law §3012; and

(3) Enjoin the District from "requiring teaching candidates to execute waivers of tenure and other statutory rights as a condition of employment."

The Court granted the teachers' petition in its entirety.

In so doing, the Court rejected the District's argument that the teachers' waivers were valid because the teachers had signed their respective agreements "knowingly and voluntarily."

On the issue of whether the waiver was "voluntary" or not, the Court said that under the circumstances, the contention that the waivers were voluntary was questionable since there is no indication that any teacher who refuses to agree to such a waiver will be hired.

While the District cited Feinerman v BOCES, 48 NY2d 491, in support of its position, the Court ruled that the Feinerman decision did not control under the facts of this case.

Finding that the Feinerman case involved one teacher of adult education in a BOCES program, the Court decided that it was not applicable to the Costello situation because the contracts at issue involve all teachers of children that were to be hired in a union free school district. 

Also, in Yastion v Mills, the  Appellate Division decided that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that "tenure does not apply to this position."

Commenting that the Board's stated purpose in promulgating its resolution was to improve education by removing the District and its teachers from the purview of the Education Law's tenure provisions, the Court said that "this goal can be achieved only by the Legislature's amendment of the Education Law, and not by an act of a local Board of Education.

The Appellate Division agreed, explaining although the Board of Education of the East Islip Union Free School District correctly contends that a teacher's rights with respect to tenure are waivable when the waiver is freely, knowingly, and openly arrived at without the taint of coercion or duress, this does not operate to give the Board the authority to eliminate the tenure system altogether. Indeed, observed the court, the tenure system is a legislative expression of a firm public policy determination that the interests of the public in the education of our youth can best be served by a system designed to foster academic freedom and to protect competent teachers from the threat of arbitrary dismissal.

Characterizing  the system proposed by the Board, i.e., tenure by contract terminating automatically at the expiration of the contract, as the very system sought to be eliminated by the enactment of the tenure statutes of the Education Law and the change to a system of permanence, the Appellate Division opined that the resolution implementing this system was improper and the petition was properly granted.

In the Conetta case, State Supreme Court Judge Lockman suggested that under certain circumstances it might be possible to eliminate tenure. The Court said that if a school district wishes to stop granting tenure, it could make such a demand in the course of collective negotiations.

Judge Lockman stated that "the Taylor Law allows negotiations for the inclusion of a 'no tenure' clause in the collective bargaining agreement." Judge Lockman also decided that a school board "could not withhold tenure at the end of the probationary period because of fiscal concerns unrelated to the qualifications of the teacher seeking such status."

Judge Lockman's full opinion follows is set out below:

The petition of Lynn Costello and the other petitioners pursuant to CPLR Article 78, seeks a judgment annulling the respondent's July 3, 1996, resolution and the petitioner-teachers' individual contracts executed pursuant to the resolution, compelling the respondents to appoint the petitioner-teachers as probationary teachers pursuant to Education Law 3012, and enjoining the respondent from requiring teaching candidates to execute waivers of tenure and other statutory rights as a condition of employment. The petition is granted in its entirety.

  The resolution at issue provides that all new teacher hirees of the East Islip Union Free School District will be employed pursuant to individual contracts providing for specified terms of employment in non-tenure-bearing positions. The contracts signed by the various petitioner-teachers contain a waiver of rights as set forth in, inter alia., Education Law §§3012, 313 and 3020, that provide for probation, tenure and certain procedures for dismissal.

The respondents' (and the amicus curiae's) reliance upon Mtr. of Feinerman v. BOCES, 48 NY2d 491 (1979) for the assertion that a waiver of the Education Law's protection is valid if it is knowingly and voluntarily made is misplaced. The Feinerman case involved one teacher of adult education in a BOCES program and is not applicable to the instant proceeding where the contracts at issue involve all teachers of children that were to be hired in a union free school district. The respondent's stated purpose in promulgating the resolution was to improve education by removing the the respondent and *its teachers from the purview of the Education Law's tenure provisions, however, this goal can be achieved only by the Legislature's amendment of the Education Law, and not by an act of a local Board of Education. There is no ruling of any Court offered by the respondent that supports the blanket eradication of the safeguards provided in the Education Law that the respondent seeks. Further, the characterization of the waiver as "voluntary" is questionable since there is no indication that any teacher who refuses to agree to such a waiver will be hired.

In view of the above, the respondent's arguments concerning the standing of certain petitioners need not be addressed.

  Submit judgment on notice.