Employee alleges unlawful retaliation after reporting the unauthorized use of a State computer database by another employee

Employee alleges unlawful retaliation after reporting the unauthorized use of a State computer database by another employee

Gorman v Rensselaer County et al, USCA Second Circuit, No.17-1120-cv

John Gorman alleged that the Rensselaer County defendants in this Civil Rights action brought pursuant to 42 U.S.C. §1983 retaliated against him in violation of his First Amendment rights as the result of his filing a report that a fellow employee in the Rensselaer County Sheriff’s Department had misused the New York State's Division of Criminal Justice Services' [DCJS] "eJusticeNY" program.*

DCJS' eJusticeNY computer program is a digital repository of criminal justice information, including information concerning individuals outside New York State, and is used by law enforcement agencies throughout New York.

The auditor of the eJusticeNY program had been advised that the program had been used by a Rensselaer County correction officer to run an unauthorized background check for allegedly personal reasons. The matter was ultimately referred to the District Attorney.

The correction officer reported by Gorman to have accessed the eJusticeNY for personal reasons was suspended from work, charged with misuse of the eJusticeNY program and subsequently pleaded guilty to “misuse of a computer,” a misdemeanor.

In adjudicating Gorman's civil rights complaint, the Circuit Court found it necessary to address a number of collateral issues, including the following:

1. Protected speech

Under the First Amendment, a public employee who speaks as a citizen on a matter of public concern is protected from the employer’s retaliation. Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013). Whether an employee’s speech constitutes a matter of public concern is a question of law. Id. “Only if the court concludes that the employee did speak in this manner does it move on to the so-called Pickering balancing, at which stage ‘a court . . . balances the interests of the employer in providing effective and efficient public services against the employee’s First Amendment right to free expression.’” Id. (quoting Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir. 1999)).

“To constitute speech on a matter of public concern, an employee’s expression must ‘be fairly considered as relating to any matter of political, social, or other concern to the community.’” Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)).

But speech that “primarily concerns an issue that is personal in nature and generally related to the speaker’s own situation, such as his or her assignments, promotion, or salary, does not address matters of public concern.” Id. (internal quotation marks and alteration omitted). “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147–48.

Relevant considerations include “whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.” Lewis, 165 F.3d at 163–64.

[See, also, https://publicpersonnellaw.blogspot.com/2015/09/a-public-employees-first-amendment_23.html]

2. Qualified immunity

“Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant’s action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation marks omitted).

Clearly established law “do[es] not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Walker v. Schult, 717 F.3d 119, 125–26 (2d Cir. 2013) (quoting Ashcroft v. Kidd, 563 U.S. 731, 741 (2011)). “Although we generally look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation to determine whether the conduct violated a clearly established right, the absence of a decision by this Court or the Supreme Court directly addressing the right at issue will not preclude a finding that the law was clearly established so long as preexisting law clearly foreshadows a particular ruling on the issue.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (internal quotation marks and alteration omitted).

[See, also, https://publicpersonnellaw.blogspot.com/search?q=qualified+immunity]

3. Official misconduct

“Exposure of official misconduct, especially within the police department, is generally of great consequence to the public.” Jackler, 658 F.3d at 236 (citation and internal quotation marks omitted). In Jackler, the plaintiff was a probationary police officer who corroborated a civilian complaint of excessive force, and resisted pressure to conceal the misconduct. Id. at 230–31.

Observing that the Fourth Amendment prohibits the use of excessive force by police, and that the misconduct at issue implicated “public safety and welfare” and the “preservation of the public fisc,” we held that “police malfeasance consisting of the use of excessive force is plainly a matter of public concern.” Id. at 236-37.

At the same time, “[n]o authority supports [the] argument that reporting an alleged crime always implicates matters of public concern.” Nagle, 663 F.3d at 107. In Nagle, the plaintiff was a special education teacher who informed several individuals that her signature had been forged on an official report. Id. at 103. The forgery was not a matter of public concern because, “even if such conduct were criminal, [it] had no practical significance to the general public.” Id. at 107. Furthermore, the forgery did not reveal “an ongoing pattern of conduct or even a particularly important instance of bad judgment” that might implicate public concern. Id. at 108.

[See, also, https://publicpersonnellaw.blogspot.com/2010/08/official-misconduct.html]

* The Division of Criminal Justice Services has a variety of responsibilities, including law enforcement training; collection and analysis of statewide crime data; maintenance of criminal history information and fingerprint files; administrative oversight of the state's DNA databank in partnership with the New York State Police; funding and oversight of probation and community correction programs; administration of federal and state criminal justice funds; support of criminal justice-related agencies across the state; and the administration of New York State's Sex Offender Registry.

The Gorman decision containing these observations is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/eaf88018-16bb-4f49-92b0-a7f103978792/2/doc/17-1120_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/eaf88018-16bb-4f49-92b0-a7f103978792/2/hilite/

Administrative Law Judge finds the testimony of the employer's witnesses more credible that the testimony of the accused employee

Administrative Law Judge finds the testimony of the employer's witnesses more credible that the testimony of the accused employee

Human Resources Admin. v. Brown, OATH Index No. 161/19

A case worker was charged with confronting a security officer at the facility where they worked, using profanity and physically restraining the security officer.

It was also alleged that when the security officer’s supervisor arrived on the scene and directed the officer to her post, the case worker continued to restrain the officer, pushed the supervisor, and directed profanity at the supervisor.

Following a two-day trial, OATH Administrative Law Judge Astrid B. Gloade found testimony of the security guard and her supervisor more credible than the case worker’s testimony concerning the event and she sustained the charges.

Judge Gloade recommended that the appointing authority impose a penalty of a thirty-day suspension without pay, with credit for time served during a pre-trial suspension by the employee.

A member of school board may be removed from his or her office after three successive unexcused absence from board meetings

A member of school board may be removed from his or her office after three successive unexcused absence from board meetings

Decision of the Commissioner of Education, Decision No. 17,544

Brian Butler appealed the decision of the Board of Education of the Massapequa Union Free School District to declare his position on the Board vacant and remove him as a board member to the Commissioner of Education. The Commissioner dismissed Butler's appeal.

The record before the Commissioner indicated that Board's president asked all board members to remain for a discussion following a board’s public and executive sessions to address Butler's alleged "public Facebook posts calling for the dismissal of the School District's Superintendent and his references to her as ‘Kim Jong Un,’” for the purpose of discussing "how we could all work together as a team, despite differences in policy, in a respectful and civil way, without name calling and personal attacks.”

The Commissioner's decision also included two footnotes reporting:

[1] The record indicates that the School District's recent efforts to reorganize the grade configuration of its schools resulted in considerable animus within the community and among individual board members and the superintendent and that a grade configuration matter came before the Commissioner in three separate appeals on which the Commissioner issued decisions, Appeal of Paglia, et al., 57 Ed Dept Rep, Decision No. 17,251; Appeal of Kaufmann, et al., 57 id., Decision No. 17250; and Appeal of Pulizzi, et al., 57 id., Decision No. 17,249.  The record also indicated that Butler made known on social media in profane and incendiary ways his personal feelings regarding the superintendent and others with whom he disagreed on policy matters; and

[2]  The School Board contended that Butler also failed to attend three consecutive meetings on April 4, April 12 and April 17, 2018 without a valid excuse and that Butler, in an affidavit, asserted that he missed the April 4, 2018 meeting because he was in California and advised the board president of that prior to the meeting.  However, in light of Butler's failure to attend five consecutive meetings without a valid excuse in May-June 2018, which alone is sufficient grounds for vacating Butler’s position pursuant to Education Law §2109, the Commissioner said that she did not need not consider whether the Board properly determined that Butler failed to present a valid excuse for missing the three consecutive meetings in April 2018.

The Board's president had sent a letter to Butler offering him "an opportunity to attend a special meeting of the board on June 28, 2018 at which [ButA member of school board may be removed from his or her office after three successive unexcused absence from board meetingsler] would be asked to provide an explanation for his five most recent consecutive absences.  The letter further stated that if Butler failed to provide valid or reasonable excuses for his absences, the board would have “no choice” but to declare his seat vacant.

Butler responded that he would not attend the June 28 meeting because of “a prior business arrangement" but that he would attend a future meeting of board to explain the reason for his absences, "but only if the board president and trustee Baldinger did not attend.  

By letter dated June 29, 2018, the School District's district clerk notified Butler that the Board had declared his seat vacant because of his habitual absences and that, "effective immediately," he was no longer a board trustee.

In his appeal Butler contended that "he provided [the Board] with a good and valid excuse for his failure to attend board meetings; i.e. fear for his personal safety" and that "the board president did not object to his absences."

In rebuttal, the Board argued that Butler "failed to provide a good and valid excuse to the other trustees for his absence from multiple consecutive board meetings" and thus "the decision to vacate [Butler's] seat on the board was a proper exercise of its authority that should not be disturbed."

Noting that Education Law §2109 provides, in pertinent part, that a board member who “refuses or neglects to attend three successive meetings of the board, of which he is duly notified, without rendering a good and valid excuse therefor to the other trustees vacates his office by refusal to serve,” the Commissioner observed that in an appeal to the Commissioner, a petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief.

The Commissioner, noting that a board of education makes [1] the determination as to whether a trustee has rendered a valid excuse for missing board meetings and [2] that the excuse tendered is satisfactory to the board, explained the for the Commissioner to overturn the board’s determination, the petitioner must demonstrate that the board was arbitrary and capricious or otherwise abused its discretion in determining that the petitioner had vacated his or her seat.

It is undisputed that Butler refused or neglected to attend more than three successive board meetings, and that he was duly notified of such meetings.  It was therefore incumbent on Butler to demonstrate that he provided the other trustees a good and valid excuse for his frequent absences from board meetings.  The Commissioner said that on the record before her, Butler failed to meet that burden.

On this record, said the Commissioner, Butler failed to meet his burden of proving that he had a valid excuse for failing to attend the five consecutive board meetings between May 21 and June 21, 2018, nor has Butler demonstrated that the Board's rejection of his proffered excuse - his purported fear of physical harm arising out of a single remark by a fellow trustee made in a heated discussion on March 15, 2018 - was arbitrary and capricious or an abuse of discretion.

Accordingly, ruled the Commissioner, "... based on the record before me, I cannot conclude that [the Board's] decision to declare [Butler's] position on the board vacant pursuant to Education Law §2109 and to remove him as a board member was arbitrary, capricious or an abuse of its discretion."

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17544

New York State Governor Andrew Cuomo recognizes law enforcement personnel for awards

New York State Governor Andrew Cuomo recognizes law enforcement personnel for awards

Source: Office of the Governor

 

On December 6, 2018, Governor Andrew M. Cuomo announced that eight officers from the Port Authority Police Department were honored with the New York State Division of Criminal Justice Services' Lifesaving Award for their actions after a bomb was detonated in a subway corridor in midtown Manhattanon December 11, 2017. Lt. Miriam Rubio, Sgt. Hector Martinez, Sgt. Victor Talamini, Officer Jack Collins, Officer Anthony Manfredini, Officer Drew Preston, Officer Sean Gallagher, andOfficer Anthony Estevez each were presented with the award during a ceremony this afternoon in Manhattan.

 

"Amid chaos and panic, these eight officers fearlessly entered the blast area to help injured commuters and secure the suspect, bravely risking their own safety to protect the public" Governor Cuomo said. "It is an honor to recognize these officers for their heroic service that epitomizes the work of New York's first responders."

 

The eight officers received the award from Michael C. Green, Executive Deputy Commissioner of the state Division of Criminal Justice Services, during a ceremony at the Port Authority Bus Terminal in Manhattan. Port Authority Police Department Chief of Operations Emilio Gonzalez also spoke at the ceremony.

 

The bombing occurred on the morning of Dec. 11, 2017, in the underground east-west corridor that links the West 42nd Street8th Avenue and 7th Avenue subway stations. An individual detonated a bomb that was strapped to his body, causing panicked commuters to flee the vicinity. Officer Manfredini, who was on patrol in the area, reported the incident, and then entered the smoke and debris-filled corridor along with Lt. Rubio, Sgt. Martinez, Sgt. Talamini, Officer Collins, Officer Gallagher, Officer Preston, and Officer Estevez.

 

Upon arriving at the scene, the officers saw evidence of the explosion. The suspect, injured and bleeding, was lying on the corridor floor, surrounded by debris and with wires protruding from the area of his chest and waist. The officers retreated, but then took immediate action to prevent a possible second blast. They re-entered the corridor and approached the suspect with their firearms drawn. When the suspect tried to reach for a cellphone, the officers — knowing based on their training and experience the phone could be a detonator for another explosive device — moved the cellphone out of his reach, handcuffed the would-be suicide bomber and secured the scene for New York City Police Department Bomb Squad personnel, who were on their way to the scene. The suspect has since been convicted of federal terrorism charges and faces life in prison.

 

The Lifesaving Award was created in 2016 by New York State's Police Officer of the Year Award Selection Committee in response to the many nominations it receives involving police officers who performed heroic acts during life-threatening emergencies.

 

Commissioner Green, who chairs the Police Officer of the Year Award Selection Committee, said, "What started as a regular morning for commuters in New York City quickly turned into panic and chaos. These officers no doubt saved countless lives and prevented further injury thanks to their quick-thinking and selfless acts of bravery. Their actions during this attack epitomize what this award is all about."

Port Authority Executive Director Rick Cotton said, "Ensuring the safety and security of the traveling public is our top priority. These eight brave officers acted in the self-sacrificing tradition of the Port Authority Police Department, which lost 37 officers on September 11th. Vigilance and quick action are hallmarks of the agency's police officers, and today's recognition by the Governor and the state Division of Criminal Justice Services is a well-deserved tribute to the selfless actions of these officers."

 

Port Authority Police Superintendent Edward Cetnar said, "These eight officers' swift actions demonstrated extraordinary bravery that resulted in no serious injuries and allowed the Port Authority Bus Terminal to be secured without further incident. They exemplify the finest traditions of pride, service and distinction that define the Port Authority Police Department and they've humbly accepted all the recognition they've received for their distinguished service."

 

In addition to recognizing these eight officers, DCJS posthumously honored Trooper Joel R. Davis of the New York State Police with the 2017 Lifesaving Award for his role in responding to a violent domestic dispute in Jefferson Countyon July 9, 2017. When Trooper Davis arrived at the scene in the town of Theresa, he engaged a gunman as a woman and two children sought refuge in a nearby shed. During the incident, Trooper Davis was fatally shot. Trooper Davis' children accepted the award in their father's memory during a ceremony in October at the State Police's Watertownstation, where troopers also unveiled a marker in his memory. More information on Trooper Davis' heroic efforts, which Governor Cuomo recognized in October, can be found here.

 

The Governor also announced the recipients of the 2017 Police Officer of the Year Award  This award recognizes a single police officer or team of officers for an exceptional act of valor. The 2017 Recipients are Yonkers Police Department Captain Andrew Lane, Detective Kayla Maher, Detective Dawn Lebzelter, Officer Brendan Moore, Officer Thomas Bennett and Officer Vincent Redat  who apprehended a gunman who had shot a detective in the face on September 25, 2017. The Police Officer of the Year Award has been presented since 1984.

. 

State Comptroller DiNapoli Releases Audits

State Comptroller DiNapoli Releases Audits

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations December 5, 2018

Click on text highlighted in color to access the full report

Department of Environmental Conservation (DEC): Oversight of the Pesticide Reporting Law (2017-S-57)
Tests of samples of pesticide application and sales data entries found that they were reasonably accurate based on the certified applicators’ and sellers’ self-reported data. However, there are some inaccuracies in the database.

Gaming Commission: Equine Health and Safety (2017-S-77)
The commission’s director has implemented new measures to improve its practices to promote equine health and safety in New York state. However, auditors found the commission could better document daily operating policies and procedures; improve how incident information is recorded in the Equine Breakdown, Death, Injury and Incident Database; and ensure adherence to drug testing requirements.

Higher Education Services Corporation: Oversight of the STEM Incentive Program (2017-S-75)
Auditors found HESC did not always ensure that applicants met Science, Technology, Engineering, and Mathematics (STEM) Incentive Program eligibility requirements. Auditors tested a random sample of 271 award recipients at the three universities that received the most program payments (SUNY Binghamton, SUNY Buffalo, and SUNY Stony Brook) and found that HESC made $81,198 in payments on behalf of 20 recipients who did not meet the program requirements.

Division of Homeland Security and Emergency Services: Awarding and Oversight of Statewide Interoperable Communications Grants (Follow-Up) (2018-F-27)
An initial audit issued in July 2017 examined whether the division awarded contracts to entities that met eligibility requirements and provided adequate oversight of Statewide Interoperable Communications Grant (SICG) awards to ensure grant funds were allocated and spent for intended purposes. Auditors concluded that the division awarded SICG funding to qualified recipients in accordance with its requirements. However, auditors identified process deficiencies in the areas of monitoring and documentation that could increase the risk of inappropriate use of funds. In a follow-up, auditors found the division has significantly addressed the issues identified in the original audit. Of the three prior recommendations, all three were implemented.

Homes and Community Renewal, Housing Finance Agency (HFA): The 80/20 Housing Program (Follow-Up) (2018-F-18)
An initial audit report issued in May 2017, concluded that, based on the rents charged for our four sampled developments, the proper number of affordable units were made available to low-income tenants. A review of the files for a sample of 43 low-income tenants found that the developments used "reasonable judgment" in determining eligibility. However, some problems were found. In a follow-up, auditors found HFA has made some progress in addressing the issues identified in the prior report. Of the three recommendations, one was implemented and two were not implemented.

Metropolitan Transportation Authority: Long Island Rail Road (LIRR): Maintenance, Inspection, and Testing of the Event Recorder System (2017-S-8)
Auditors determined that the LIRR has a maintenance and inspection program for its Event Recorder System; however, it was not always in compliance with the program. For example, from Jan. 1, 2014 to Feb. 27, 2017, there were five months when the non-functioning ERS exceeded the 10 percent “effective maintenance standard” established by the Federal Railroad Administration.

Queens County District Attorney’s Office: Oversight of Persons Convicted of Driving While Intoxicated (2018-F-9)
An initial report issued in July 29, 2016 found that while 9,604 offenders overseen by the office received court orders to install an ignition interlock device (IID), only 1,952 (20 percent) did. Auditors also found material non-compliance with the office’s protocols to minimize the risk that offenders would drive vehicles without IIDs. In a follow-up, auditors found the office has made significant progress in addressing the issues identified in our initial report.

State Education Department (SED): Bank Street College of Education: Compliance With the Reimbursable Cost Manual (2017-S-5)
For the fiscal year ended June 30, 2014, auditors identified $585,047 in ineligible costs that Bank Street reported for state reimbursement. These ineligible costs included $338,175 in personal service costs, $246,707 in administrative overhead costs, and $165 in other than personal service costs.

State Education Department (SED): Security Over Critical Information Systems (Follow-Up) (2018-F-17)
An initial audit report issued in July 2017, found that although SED had taken a number of steps to secure its critical information systems and associated data, there was still a risk that unauthorized persons could access these systems. In a follow-up, auditors found SED officials have not made significant progress in correcting the problems identified in the initial report. Of the two recommendations, one has been partially implemented and one has not been implemented.

State Education Department (SED): NYSARC Inc. – NYC Chapter: Compliance With the Reimbursable Cost Manual (2017-S-47)
For the three fiscal years ended June 30, 2015, auditors identified $1,311,070 in reported costs that did not comply with requirements for state reimbursement and recommended such costs be disallowed. These ineligible costs included $791,114 in personal service costs and $519,956 in other than personal service costs.

Employee alleges unlawful retaliation after reporting the unauthorized use of a computer program by another employee

Employee alleges unlawful retaliation after reporting the unauthorized use of a computer program by another employee

Gorman v Rensselaer County et al, USCA Second Circuit, No.17-1120-cv

John Gorman alleged that the Rensselaer County defendants in this Civil Rights action brought pursuant to 42 U.S.C. §1983 retaliated against him in violation of his First Amendment rights as the result of his filing a report that a fellow employee in the Sheriff’s Department had misused the New York State's Division of Criminal Justice Services' [DCJS] "eJusticeNY" program.*

DCJS' eJusticeNY computer program is a digital repository of criminal justice information, including information concerning individuals outside New York State, and is used by law enforcement agencies throughout New York.

The auditor of the eJusticeNY program had been advised that the program had been used by a county correction officer to run an unauthorized background check for allegedly personal reasons. The matter was ultimately referred to the District Attorney.

The correction officer reported by Gorman to have accessed the eJusticeNY for personal reasons was suspended from work, charged with misuse of the eJusticeNY program and subsequently pleaded guilty to “misuse of a computer,” a misdemeanor.

In adjudicating Gorman's civil rights complaint, the Circuit Court found it necessary to address a number of collateral issues, including the following:

1. Protected speech

Under the First Amendment, a public employee who speaks as a citizen on a matter of public concern is protected from the employer’s retaliation. Singer v. Ferro, 711 F.3d 334, 339 (2d Cir. 2013). Whether an employee’s speech constitutes a matter of public concern is a question of law. Id. “Only if the court concludes that the employee did speak in this manner does it move on to the so-called Pickering balancing, at which stage ‘a court . . . balances the interests of the employer in providing effective and efficient public services against the employee’s First Amendment right to free expression.’” Id. (quoting Lewis v. Cowen, 165 F.3d 154, 162 (2d Cir. 1999)).

“To constitute speech on a matter of public concern, an employee’s expression must ‘be fairly considered as relating to any matter of political, social, or other concern to the community.’” Jackler v. Byrne, 658 F.3d 225, 236 (2d Cir. 2011) (quoting Connick v. Myers, 461 U.S. 138, 146 (1983)).

But speech that “primarily concerns an issue that is personal in nature and generally related to the speaker’s own situation, such as his or her assignments, promotion, or salary, does not address matters of public concern.” Id. (internal quotation marks and alteration omitted). “Whether an employee’s speech addresses a matter of public concern must be determined by the content, form, and context of a given statement, as revealed by the whole record.” Connick, 461 U.S. at 147–48.

Relevant considerations include “whether the speech was calculated to redress personal grievances or whether it had a broader public purpose.” Lewis, 165 F.3d at 163–64.

[See, also, https://publicpersonnellaw.blogspot.com/2015/09/a-public-employees-first-amendment_23.html]

2. Qualified immunity

“Qualified immunity protects public officials from liability for civil damages when one of two conditions is satisfied: (a) the defendant’s action did not violate clearly established law, or (b) it was objectively reasonable for the defendant to believe that his action did not violate such law.” Russo v. City of Bridgeport, 479 F.3d 196, 211 (2d Cir. 2007) (internal quotation marks omitted).

Clearly established law “do[es] not require a case directly on point, but existing precedent must have placed the statutory or constitutional question beyond debate.” Walker v. Schult, 717 F.3d 119, 125–26 (2d Cir. 2013) (quoting Ashcroft v. Kidd, 563 U.S. 731, 741 (2011)). “Although we generally look to Supreme Court and Second Circuit precedent existing at the time of the alleged violation to determine whether the conduct violated a clearly established right, the absence of a decision by this Court or the Supreme Court directly addressing the right at issue will not preclude a finding that the law was clearly established so long as preexisting law clearly foreshadows a particular ruling on the issue.” Garcia v. Does, 779 F.3d 84, 92 (2d Cir. 2015) (internal quotation marks and alteration omitted).

[See, also, https://publicpersonnellaw.blogspot.com/search?q=qualified+immunity]

3. Official misconduct

“Exposure of official misconduct, especially within the police department, is generally of great consequence to the public.” Jackler, 658 F.3d at 236 (citation and internal quotation marks omitted). In Jackler, the plaintiff was a probationary police officer who corroborated a civilian complaint of excessive force, and resisted pressure to conceal the misconduct. Id. at 230–31.

Observing that the Fourth Amendment prohibits the use of excessive force by police, and that the misconduct at issue implicated “public safety and welfare” and the “preservation of the public fisc,” we held that “police malfeasance consisting of the use of excessive force is plainly a matter of public concern.” Id. at 236-37.

At the same time, “[n]o authority supports [the] argument that reporting an alleged crime always implicates matters of public concern.” Nagle, 663 F.3d at 107. In Nagle, the plaintiff was a special education teacher who informed several individuals that her signature had been forged on an official report. Id. at 103. The forgery was not a matter of public concern because, “even if such conduct were criminal, [it] had no practical significance to the general public.” Id. at 107. Furthermore, the forgery did not reveal “an ongoing pattern of conduct or even a particularly important instance of bad judgment” that might implicate public concern. Id. at 108.

[See, also, https://publicpersonnellaw.blogspot.com/2010/08/official-misconduct.html]

* The Division of Criminal Justice Services has a variety of responsibilities, including law enforcement training; collection and analysis of statewide crime data; maintenance of criminal history information and fingerprint files; administrative oversight of the state's DNA databank, in partnership with the New York State Police; funding and oversight of probation and community correction programs; administration of federal and state criminal justice funds; support of criminal justice-related agencies across the state; and administration of the state's Sex Offender Registry.

The Gorman decision containing these observations is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/eaf88018-16bb-4f49-92b0-a7f103978792/2/doc/17-1120_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/eaf88018-16bb-4f49-92b0-a7f103978792/2/hilite/

Determining the appropriate evidence standard to be applied in a disciplinary action

Determining the appropriate evidence standard to be applied in a disciplinary action

Johnson v Riverhead Cent. Sch. Dist., 2018 NY Slip Op 08021, Appellate Division, Second Department

Joe Nell Johnson II, a tenured teacher employed by the Riverhead Central School District, was served with disciplinary charges pursuant to Education Law §3020-a alleging that he was guilty of misconduct that was "incompatible with the standards required to be seen as a positive role model for the students."

Ultimately the disciplinary hearing officer found Johnson guilty of the charges filed against him and directed the school district to terminate his employment.

Johnson filed a petition pursuant to CPLR Article 75 seeking a court order vacating the hearing officer's determination. Supreme Court denied Johnson's petition and dismissed the proceeding, whereupon Johnson appealed the Supreme Court's ruling to the Appellate Division contending that the hearing officer should have applied the preponderance of the evidence standard in making his findings.

A "preponderance of the evidence" is the standard used in disciplinary actions where arbitration is not mandated and requires that the evidence for one side outweighs evidence for the other side by some degree, however minute and the preponderance of the evidence standard generally applies only when the penalty of dismissal is accompanied by some added stigma. 

However §3032-a.3, as amended, provides that the Commissioner of Education, "upon receipt of a request for a hearing in accordance with subdivision two of this section" the commissioner shall notify the American Arbitration Association of the need for a hearing and request the Association to provide a list of names of persons from the Association's panel of labor arbitrators to serve as hearing officers. Accordingly, in Martin v Ambach, 67 NY2d 975, the Court of Appeals held that to determine whether charges were properly brought under Education Law §3020-a, the proper standard is “preponderance of evidence”, not substantial evidence.

The Appellate Division then pointed out that where the obligation to arbitrate arises through a statutory mandate such as §3020-a, the hearing officer's determination is subject to closer judicial scrutiny under CPLR 7511(b) than it would otherwise receive. Here the parties were required to arbitrate the disciplinary action as mandated by statute. In the words of the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, in an Article 75 review of the hearing officer's determination the court considers "whether the decision was rational or had a plausible basis" but, as the Court of Appeals held in Matter of Berenhaus v Ward, 70 NY2d 436, when reviewing compulsory arbitrations in §3020-a proceedings the court should accept the hearing officer's credibility determinations, even where there is conflicting evidence and room for choice exists.

Finding that the hearing officer's determination has evidentiary support and was not arbitrary and capricious, the Appellate Division held that Johnson [1] was provided with adequate notice of the charges that was reasonably specific and in light of all the relevant circumstances Johnson [2] was apprised of charges against him sufficient "to allow for the preparation of an adequate defense."

As to the penalty imposed by the hearing officer, termination, the Appellate Division said that the penalty of termination "was not irrational or shocking to one's sense of fairness."

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

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08021.htm

State Comptroller DiNapoli Releases Audits

State Comptroller DiNapoli Releases Audits

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli issued the following audits and examinations December 5, 2018

Click on text highlighted in color to access the full report

Department of Environmental Conservation (DEC): Oversight of the Pesticide Reporting Law (2017-S-57)Tests of samples of pesticide application and sales data entries found that they were reasonably accurate based on the certified applicators’ and sellers’ self-reported data. However, there are some inaccuracies in the database.

Gaming Commission: Equine Health and Safety (2017-S-77)The commission’s director has implemented new measures to improve its practices to promote equine health and safety in New York state. However, auditors found the commission could better document daily operating policies and procedures; improve how incident information is recorded in the Equine Breakdown, Death, Injury and Incident Database; and ensure adherence to drug testing requirements.

Higher Education Services Corporation: Oversight of the STEM Incentive Program (2017-S-75)Auditors found HESC did not always ensure that applicants met Science, Technology, Engineering, and Mathematics (STEM) Incentive Program eligibility requirements. Auditors tested a random sample of 271 award recipients at the three universities that received the most program payments (SUNY Binghamton, SUNY Buffalo, and SUNY Stony Brook) and found that HESC made $81,198 in payments on behalf of 20 recipients who did not meet the program requirements.

Division of Homeland Security and Emergency Services: Awarding and Oversight of Statewide Interoperable Communications Grants (Follow-Up) (2018-F-27)An initial audit issued in July 2017 examined whether the division awarded contracts to entities that met eligibility requirements and provided adequate oversight of Statewide Interoperable Communications Grant (SICG) awards to ensure grant funds were allocated and spent for intended purposes. Auditors concluded that the division awarded SICG funding to qualified recipients in accordance with its requirements. However, auditors identified process deficiencies in the areas of monitoring and documentation that could increase the risk of inappropriate use of funds. In a follow-up, auditors found the division has significantly addressed the issues identified in the original audit. Of the three prior recommendations, all three were implemented.
Homes and Community Renewal, Housing Finance Agency (HFA): The 80/20 Housing Program (Follow-Up) (2018-F-18)An initial audit report issued in May 2017, concluded that, based on the rents charged for our four sampled developments, the proper number of affordable units were made available to low-income tenants. A review of the files for a sample of 43 low-income tenants found that the developments used "reasonable judgment" in determining eligibility. However, some problems were found. In a follow-up, auditors found HFA has made some progress in addressing the issues identified in the prior report. Of the three recommendations, one was implemented and two were not implemented.

Metropolitan Transportation Authority: Long Island Rail Road (LIRR): Maintenance, Inspection, and Testing of the Event Recorder System (2017-S-8)Auditors determined that the LIRR has a maintenance and inspection program for its Event Recorder System; however, it was not always in compliance with the program. For example, from Jan. 1, 2014 to Feb. 27, 2017, there were five months when the non-functioning ERS exceeded the 10 percent “effective maintenance standard” established by the Federal Railroad Administration. 

Queens County District Attorney’s Office: Oversight of Persons Convicted of Driving While Intoxicated (2018-F-9)An initial report issued in July 29, 2016 found that while 9,604 offenders overseen by the office received court orders to install an ignition interlock device (IID), only 1,952 (20 percent) did. Auditors also found material non-compliance with the office’s protocols to minimize the risk that offenders would drive vehicles without IIDs. In a follow-up, auditors found the office has made significant progress in addressing the issues identified in our initial report. 

State Education Department (SED): Bank Street College of Education: Compliance With the Reimbursable Cost Manual (2017-S-5)
For the fiscal year ended June 30, 2014, auditors identified $585,047 in ineligible costs that Bank Street reported for state reimbursement. These ineligible costs included $338,175 in personal service costs, $246,707 in administrative overhead costs, and $165 in other than personal service costs. 

State Education Department (SED): Security Over Critical Information Systems (Follow-Up) (2018-F-17)
An initial audit report issued in July 2017, found that although SED had taken a number of steps to secure its critical information systems and associated data, there was still a risk that unauthorized persons could access these systems. In a follow-up, auditors found SED officials have not made significant progress in correcting the problems identified in the initial report. Of the two recommendations, one has been partially implemented and one has not been implemented.

State Education Department (SED): NYSARC Inc. – NYC Chapter: Compliance With the Reimbursable Cost Manual (2017-S-47)
For the three fiscal years ended June 30, 2015, auditors identified $1,311,070 in reported costs that did not comply with requirements for state reimbursement and recommended such costs be disallowed. These ineligible costs included $791,114 in personal service costs and $519,956 in other than personal service costs.

Remedy to be provided in the event the rejection of an administrative appeal was marred by a procedural error

Remedy to be provided in the event the rejection of an administrative appeal was marred by a procedural error

Clark v NYS Board of Parole, 2018 NY Slip Op 08071, Appellate Division, First Department

Supreme Court granted the petition to annul the determination of the Commissioners of the New York State Department of Parole [Board] affirming the determination of a panel of the Board denying Petitioner's application for parole. Supreme Court then remanded the matter for a new review before a new panel of the Board. The Board appealed the court's decision.

The Appellate Division unanimously modified the Supreme Court's ruling on the law, reinstating the panel's denial of parole but remanded the matter to the Commissioners of the Board for a new administrative appeal of that action to be considered by a new panel.

The Appellate Division explained that Supreme Court had correctly determined that the rejection of the administrative appeal was marred by procedural error when the administrative Panel permissibly considered communications in opposition to a Petitioner's application for parole submitted by public officials and members of the community and refused to provide the Petitioner with access to any of the communications it had considered in connection with the Petitioner's application for parole.

However, said the Appellate Division, the correct remedy for this procedural error in the conduct of the Panel is the annulment of the decision and the remand of the matter for new administrative appellate proceedings in which the Board should turn over the requested material, with any authorized and necessary redactions, to the Petitioner rather than the annulment of the initial denial of parole by the Panel as the matter must still undergo a proper administrative review.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08071.htm

Determining the appropriate evidence standard to be applied in a disciplinary action

Determining the appropriate evidence standard to be applied in a disciplinary action

Johnson v Riverhead Cent. Sch. Dist., 2018 NY Slip Op 08021, Appellate Division, Second Department

Joe Nell Johnson II, a tenured teacher employed by the Riverhead Central School District, was served with disciplinary charges pursuant to Education Law §3020-a alleging that he was guilty of misconduct that was "incompatible with the standards required to be seen as a positive role model for the students."

Ultimately the disciplinary hearing officer found Johnson guilty of the charges filed against him and directed the school district to terminate his employment.

Johnson filed a petition pursuant to CPLR Article 75 seeking a court order vacating the hearing officer's determination. Supreme Court denied Johnson's petition and dismissed the proceeding, whereupon Johnson appealed the Supreme Court's ruling to the Appellate Division contending that the hearing officer should have applied the preponderance of the evidence standard in making his findings.

A "preponderance of the evidence" is the standard used in disciplinary actions where arbitration is not mandated and requires that the evidence for one side outweighs evidence for the other side by some degree, however minute and the preponderance of the evidence standard generally applies only when the penalty of dismissal is accompanied by some added stigma. 

However §3032-a.3, as amended, provides that the Commissioner of Education, "upon receipt of a request for a hearing in accordance with subdivision two of this section" the commissioner shall notify the American Arbitration Association of the need for a hearing and request the Association to provide a list of names of persons from the Association's panel of labor arbitrators to serve as hearing officers. Accordingly, in Martin v Ambach, 67 NY2d 975, the Court of Appeals held that to determine whether charges were properly brought under Education Law §3020-a, the proper standard is “preponderance of evidence”, not substantial evidence.

The Appellate Division then pointed out that where the obligation to arbitrate arises through a statutory mandate such as §3020-a, the hearing officer's determination is subject to closer judicial scrutiny under CPLR 7511(b) than it would otherwise receive. Here the parties were required to arbitrate the disciplinary action as mandated by statute. In the words of the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, in an Article 75 review of the hearing officer's determination the court considers "whether the decision was rational or had a plausible basis" but, as the Court of Appeals held in Matter of Berenhaus v Ward, 70 NY2d 436, when reviewing compulsory arbitrations in §3020-a proceedings the court should accept the hearing officer's credibility determinations, even where there is conflicting evidence and room for choice exists.

Finding that the hearing officer's determination has evidentiary support and was not arbitrary and capricious, the Appellate Division held that Johnson [1] was provided with adequate notice of the charges that was reasonably specific and in light of all the relevant circumstances Johnson [2] was apprised of charges against him sufficient "to allow for the preparation of an adequate defense."

As to the penalty imposed by the hearing officer, termination, the Appellate Division said that the penalty of termination "was not irrational or shocking to one's sense of fairness." 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_08021.htm

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.

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* 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