First Amendment free speech rights of employees depends on the nature of the employee's speech

The plaintiffs [Plaintiffs] in the action appealed the dismissed their First Amendment retaliation claim under 42 U.S.C. §1983 against the County of Rockland and additional named defendants [Defendants]. Plaintiffs alleged that Defendants terminated them in retaliation for allegations made concerning the Defendants. The federal district court concluded that Plaintiffs did not engage in speech as a private citizen and thus their First Amendment retaliation claim failed as a matter of law. The United States Circuit Court of Appeals for the Second Circuit agreed. 

Citing Agosto v. N.Y.C. Dep’t of Educ., 982 F.3d 86, the Circuit Court opined in order to prevail, a government employee or contractor must establish that "(1) his speech was protected by the First Amendment; (2) he suffered an adverse employment action by the [employer]; and (3) there was a causal connection between the adverse action and his speech." 

Further, said the Circuit Court, to determine whether a public employee speaks as a citizen for purposes of a First Amendment retaliation claim, courts ask whether (1) “the speech falls outside of the employee’s official responsibilities,” and (2) “a civilian analogue exists.” 

Such a determination requires an examination of “the nature of the plaintiff’s job responsibilities, the nature of the speech, and the relationship between the two”. The speech at issue can be pursuant to "a public employee’s official job duties even though it is not required by, or included in, the employee’s job description, or in response to a request by the employer.”* 

Here, opined the Circuit Court of Appeals, "the uncontroverted evidence in the record demonstrates that [Plaintiff] engaged in speech as an employee, rather than as a [private] citizen." Accordingly, the Circuit Court held "the district court properly granted summary judgment for [Defendants] on the [Plaintiffs'] First Amendment retaliation claim." 

* The Circuit Court noted that in Lane v. Franks, 573 U.S. 228, the Supreme Court had emphasized that “the mere fact that a citizen’s speech concerns information acquired by virtue of his public employment does not transform that speech into employee -- rather than citizen -- speech .... the critical question ... is whether the speech at issue is itself ordinarily within the scope of an employee’s duties, not whether it merely concerns those duties.” 

Click HEREto access the Second Circuit's decision.

 

Summaries of recent personnel disciplinary decisions posted by the New York City Office of Administrative Trials and Hearings [OATH]

Use of excessive force - OATH Administrative Law Judge Julia H. Lee recommended termination of employment for a correction officer who used excessive force when he struck a restrained inmate in the face and submitted a false and misleading use of force report. While the inmate had thrown food at the officer through an open slot of his cell and later alluded to there being feces in the food, Judge Lee found that neither the inmate’s verbal abuse and threatening language nor the food-throwing justified the officer’s strike to his face. ALJ Lee also found that the officer’s statement in his use of force report that the inmate was trying escape from escort officers was inaccurate as video evidence demonstrated that the inmate was physically compliant throughout the extraction and escort. Click HERE to access Judge Lee's decision. 

Excessive absenteeism - OATH Administrative Law Judge Kara J. Miller recommended termination of employment for a non-competitive class employee charged with excessive absenteeism under section 75 of the Civil Service Law, finding that the employee was continuously absent for more than 295 days following a workplace injury when a bathroom stall door fell on her. In her report and recommendation, Judge Miller rejected the employee’s argument that the proceeding should be converted to a Civil Service Law section 71 proceeding involving a determination of permanent incapacitation due to disability ALJ Miller found that the Court of Appeals has acknowledged that the applicability of section 71 to non-competitive class employees remains an open question for the state legislature to resolve and that even if section 71 were applicable to non-competitive class employees, it does not provide for a hearing prior to termination. Click HERE to access Judge Miller's decision. 

Off-duty misconduct - OATH Administrative Law Judge Michael D. Turilli recommended dismissing an off-duty misconduct charge against a correction officer who was arrested for assaulting his wife. The criminal charges against the correction officer had been dismissed prior to the trial before OATH and the officer’s wife declined to testify. ALJ Turilli found that the testimony of the arresting police officer, who recounted hearsay statements made by the wife at the scene over three years ago, was not sufficiently reliable to sustain the charge. Click HERE to access Judge Turilli's decision. 

Leaving work early - OATH Administrative Law Judge Kevin F. Casey recommended a 45-day suspension for a hospital service aide for leaving work early and moving supplies, including personal protective equipment, from a nurses’ station to a closet during the COVID-19 pandemic without documenting his actions. ALJ Casey found that the hospital had failed to prove that the service aide stole hospital property, stored alcohol on the hospital premises, refused to surrender his keys, violated the Conflicts of Interest Law, or intimidated co-workers into signing a petition. Click HERE to access Judge Casey's decision. 

Submitted misleading report - OATH Administrative Law Judge Joycelyn McGeachy-Kuls found that a correction officer’s use of force during an escort of an inmate was appropriate but that the officer had submitted a false or misleading report about the incident. The Department of Correction had charged the officer with using excessive force against an inmate while he was being removed from a cell. Judge McGeachy-Kuls found that the officer’s force was not excessive because the inmate was not compliant. However, ALJ McGeachy-Kuls found that the officer submitted a false or misleading report about the incident and recommended a 30-day suspension. Click HERE to access Judge McGeachy-Kuls' decision. 

False "use of force" report - OATH Administrative Law Judge Christine Stecura recommended that a correction officer be suspended for 60 days for using excessive force and submitting a false and misleading use of force report about an incident in which he struck an inmate in the face. ALJ Stecura rejected the officer’s argument that force was appropriate because the inmate had a cane and had made a threatening gesture. Click HERE to access Judge Stecura's decision. 

Sleeping while on duty - OATH Administrative Law Judge Julia Davis recommended that a Special Officer in the Department of Citywide Administrative Services be suspended for 20 days for making false statements and sleeping while on duty, both of which the Special Officer admitted during trial. ALJ Davis found that DCAS had failed to prove that the Special Officer slapped a commuter on her buttocks because the complainant’s identification of the Special Officer as the perpetrator was not sufficiently reliable. Click HERE to access Judge Davis' decision.

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE or click to Read a FREE excerpt (requires Adobe Reader). 

CPLR Article 78 petition alleging Public Advocate improperly criticized and interfered with Union leadership dismissed for failure to join necessary parties

The text of the decision is posted below:

City Empls. Union Local 237, Intl. Bhd. of Teamsters

v

New York City Bd. of Collective Bargaining
2022 NY Slip Op 33263(U)

This opinion is uncorrected and not selected for publication in the Official Reports.

The Court was unable to hear oral argument as scheduled; however, the parties have agreed to waive argument and mark the matter submitted.

Accordingly, upon consideration of the foregoing documents, the Court issues the below Decision and Order.

Plaintiff (hereinafter “Union”) claims that Jumaane Williams, as Public Advocate, improperly criticized Union leadership and otherwise interfered with Union leadership’s relationship with its members by making pronouncements/statements that while school security agents would be phased  out of schools these agents would retain their pay and benefits in new roles.

 Petitioner brought these claims before the NYC Bd. of Collective Bargaining (hereinafter “Board”), which found that the Public Advocate’s pronouncements/statements were not direct dealings with the Union’s members and did not improperly interfere with the Union’s relationship with its members. Petitioner seeks to have that determination annulled under Art. 78 of the CPLR. Respondent opposes, contending the Board’s determination was properly supported and seeks dismissal of the petition.

As an initial matter, the instant petition fails to join necessary parties, including Public Advocate Williams and the NYPD, the employer of the Union’s members. CPLR § 1001 directs that necessary parties are those “who ought to be parties if complete relief is to be accorded between the persons who are parties to the action or who might be inequitably affected by a judgment in the action”. Likewise, where a proceeding is brought pursuant to Article 78 of the CPLR, the government entity that performed the challenged action must be a named party (CPLR § 7801).

Here, the petition challenges, inter alia, the Public Advocate’s actions.

Any relief accorded in this matter will affect the rights of the NYPD, as employer of the petitioner’s members. Accordingly, the Public Advocate and NYPD are necessary parties (see e.g. Mahinda v. Bd. of Collective Bargaining, 91 AD3d 564 [1st Dept 2012]). Notwithstanding, petitioner has failed to name the Public Advocate or the NYPD.

Consequently, the petition must be dismissed for failure to join necessary parties. Granting amendment to name these necessary parties would be improper, as the statute of limitations to bring claims against these parties has passed (Watkins v. New York City Dep’t of Educ., 48 AD3d 339 [1st Dept 2008]; see also Matter of Brancato v. New York State Bd. of Real Prop. Services, 7 AD3d 865 [3d Dept 2004]). 

Alternatively, and assuming, arguendo, that the Court were to reach the merits of the petition, the standard of review by this Court is well established – the Court must determine whether there is a rational basis for the Board’s determination or whether the determination is arbitrary and capricious, contrary to law, or otherwise an abuse of discretion (Matter of Gilman v. New York State Div. of Housing and Community Renewal, 99 NY2d 144 [2002]; Uniformed Firefighters Assn. of Greater N.Y., Local 94 IAFF, ADL-CIO v. City of New York, 106 AD3d 564 [1st Dept 2012]). “An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts” (Peckham v. Calogero, 12 NY3d 424 [2009]; see also Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222 [1974]). When the determination is supported by a rational basis, this Court must sustain the determination, notwithstanding that the Court would reach a different result (Peckham v. Calogero, 12 NY2d at 431). Stated differently, the Court does not perform a de novo review of the facts or merits (Matter of City of Watertown v. State of N. Y. Pub. Empl. Relations Bd., 95 NY2d 73 [2000]).

Here, the Board found that the Public Advocate was acting within his legislative duties when he issued the pronouncements at issue and was not, therefore, improperly interfering with the Union or the Union leadership’s relationship with its members. It is beyond cavil that the Public Advocate is an elected official and a non-voting member of the City Council, with the right to introduce and co-sponsor legislation. Notably, the Public Advocate, inter alia, testified before the Council in support of legislation implementing those ideas contained in the Public Advocate’s pronouncements/statements. Accordingly, the Board’s determination that the pronouncements at issue were related to the Public Advocate’s legislative duties, and were not improper, is soundly based within reason and the facts.

Likewise, the Board’s findings that the Public Advocate’s pronouncements/statements did not attempt to negotiate the Union member’s terms and conditions of employment and the statements did not interfere with or coerce the Union’s members, is supported by a rational basis. The Public Advocate has no negotiating relationship with the Union’s membership and is not involved in the Union’s collective bargaining negotiations. Furthermore, the Public Advocate’s statements cannot reasonably be interpreted as an attempt to discourage employees from engaging with the Union.

Consequently, vacating or annulling the Board’s determination, as sought by
petitioner, is inappropriate.

Accordingly, it is

ORDERED that the petition is denied for failure to join necessary parties;
and it is further

ORDERED that, as an alternative holding, the petition is denied on the
merits as the Board’s determination is supported by a rational basis, not
contrary to law, and not an abuse of discretion; and it is further

ORDERED that the petition is dismissed in its entirety and the matter
shall be marked disposed.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

FILED: NEW YORK COUNTY CLERK 09/28/2022 03:22 PM  INDEX NO. 160061/2021 NYSCEF DOC. NO. 26 RECEIVED NYSCEF: 09/28/2022

Click HEREto access the Supreme Court decision posted on the Internet.

 

Evaluating applications for workers' compensation benefit "reclassification" pursuant to Workers' Compensation Law §35(3)

Workers' Compensation Law §35(3) provides for "extreme hardship re-determinations" in cases where the loss of wage-earning capacity is greater than seventy-five percent. In such situations a claimant may request, within the year prior to the scheduled exhaustion of indemnity benefits, that the Workers' Compensation Board reclassify the claimant to "permanent total disability". 

Considering an appeal from a decision of the Workers' Compensation Board [Board] which ruled that Claimant met the requirements for extreme hardship reclassification pursuant to Workers' Compensation Law §35(3), the Appellate Division observed that the Claimant for workers' compensation benefits had established a workers' compensation claim for injuries to his right shoulder and low back.

Shortly before the expiration of those indemnity benefits, however, Claimant filed a timely "extreme hardship re-determination request (C-35 form)" pursuant to Workers' Compensation Law §35(3). A Workers' Compensation Law Judge granted Claimant's application and reclassified Claimant as permanent total disability due to factors reflecting extreme hardship. The Board affirmed the Judge's decision and the Claimant's employer and its workers' compensation carrier appealed the Board's ruling.

The Appellate Division sustained the Board's determination that Claimant had demonstrated extreme hardship entitling him to reclassification, noting that the Board had considered Claimant's [1] monthly income, which included Social Security disability benefits and other imputed income derived from public assistance programs, [2] his detailed monthly expenses, [3] the fact Claimant's monthly expenses exceed his monthly income did not mandate a finding of extreme hardship, and [4] considered other relevant factors, such as claimant's education and employment perspectives.

Finding that substantial evidence supported the Board's finding that, given the notable shortfall of Claimant's financial ability to meet his monthly obligations once his workers' compensation indemnity benefits were discontinued, and considering Claimant's inability to obtain new employment in order to produce additional income, the Appellate Division opined that Claimant "demonstrated extreme hardship warranting  reclassification pursuant to Workers' Compensation Law §35(3)" by the Board.

Click HEREto access the Appellate Division's decision.

Disability Benefits for fire, police and other public sector personnel - an e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." 

For more information about this e-book click HERE.  

Click HERE to Read a FREE excerpt(requires Adobe Reader).

Government Technology Webinars scheduled for the week beginning October 10, 2022

 Webinars to be held during the week ending October 14, 2022:

Tuesday, October 11 | 1:00pm Eastern

How To Get Bots Right: Understanding and Developing Effective Chatbots

Chatbots are often deployed without fully understanding where automation will be helpful to constituents and where it will not. Using data analytics to map the constituent journey and create bots with consideration to the constituent's and agency's perspectives helps prevent bots from leading users to a dead end with no valuable alternative. Join us for a webinar on the problem with and promise of chatbots. 

Click here to Register to attend 

 

Thursday, October 13 | 1:00pm Eastern

Three's a Cloud: Why a Multicloud Solution is Better for Government

As the demands on state and local governments continue to grow in number and complexity, agencies are adopting cloud technology to lower costs, bolster their cybersecurity posture and improve service delivery. And cloud service providers have leveraged their experience to develop scalable tools that can solve a wide range of system challenges. The question is no longer which cloud to use but which combination of cloud services can best help organizations achieve their missions. Each cloud service was initially designed to solve a different problem, so they have matured with different strengths and capabilities. Multicloud is much more than using services in each cloud independently. Multicloud is about connecting the best services and capabilities of each cloud.  

Click here to Register to attend 

 

Sneak Peek at Next Week’s Webinars: 

 

Tuesday, October 18 | 1:00pm Eastern

Managing Cyber Risks: Exploring Cybersecurity as a Managed Service

Cybersecurity challenges are getting tougher by the day. Most state and local governments don’t have the in-house staff or resources to keep up. That’s why many of them are turning to a managed services model for security. We’ve lined up three public sector cyber experts to discuss this approach, and when it makes sense – and when it doesn’t – for different types of agencies. Join us to hear new cyber strategies and approaches for state and local governments. You won’t want to miss it!

Click here to Register to attend 

 

Wednesday, October 19 | 1:00pm Eastern

Centering Constituent Concerns with an Environmental, Social and Governance Framework

Environmental, Social, and Governance (ESG) frameworks have emerged in the private sector as a way to incorporate social good into the other work an organization is engaged in. It’s a lens that can enhance and inform the way a company thinks about risks, opportunities, and outcomes. But when people think about improving their communities and addressing the major issues that impact daily life, they look to governments – not corporations or individuals – as the institutions responsible for meeting that mission. While many ESG initiatives are intrinsic to the mission of government agencies, thinking about them as interrelated pieces under a common framework helps set goals, measure success, and ensure accountability. Join us for a webinar on how adopting an ESG framework can be a powerful way to help broaden governments’ mission to address issues that matter to the communities they serve.

Click here to Register to attend 

 

Friday, October 21 | 2:00pm Eastern

Accelerating Improvements in the Constituent Experience with APIs

While making the leap to digital modernization may feel almost impossible, an Application Programming Interface (API) can help governments quickly improve service delivery without overhauling legacy systems. Learn how governments can use APIs to give residents a consumer-grade experience while maintaining their back-office systems during this webinar with Government Technology on October 21!

Click here to Register to attend

To view upcoming and on-demand webinars, visit webinars.govtech.com.

For assistance with registration, contact:
Jeremy Smith, jsmith@erepublic.com (916) 932-1402 direct

 

Workers’ Compensation Board webinars for employers and for employees

Webinars for employees

The Workers’ Compensation Board (Board) continues its webinar for workers who believe they contracted COVID-19 on the job, especially those who have missed time from work or are suffering from ongoing or “long-haul” symptoms. Additional dates have also been added.

Each one-hour session will provide information on workers’ rights when it comes to filing a workers’ compensation claim and the cash and/or medical benefits they may be eligible to receive.

While the online sessions are targeted toward workers who have lost time from work, have ongoing medical problems and/or fall into the category of “long haulers,” the information is relevant to anyone who believes they may have contracted COVID-19 due to an exposure at work. 

Please note: workers have two years from the time they contracted COVID-19 to file a claim.

Registration is not required. To join, please select the "Join webinar" link below.

Wednesday, October 12, 2022
12:00 P.M. - 1:00 P.M.
Join webinar
Add to your calendar!

Wednesday, November 9, 2022
12:00 P.M. - 1:00 P.M.
Join webinar
Add to your calendar!

Wednesday, December 14, 2022
12:00 P.M. - 1:00 P.M.
Join webinar
Add to your calendar!

More information on COVID-19 can be found on the Board’s website, including information on how to file a COVID-19 workers’ compensation claim, a link to search for a Board-authorized health care provider, and the latest news and updates. You can also subscribe for email updates on COVID-19 and workers’ compensation.

If you are having trouble registering or attending this webinar, check out these Webinar FAQs.

Webinars for employers

In addition, on each of the two dates listed below, the Workers Compensation Board’s Office of the Advocate for Business will present a webinar on the basics of the workers’ compensation system, including insurance types, coverage requirements, and employers’ obligations under the law. Each one-hour presentation will also cover: 

• Who needs coverage and who does not need coverage
• How and when to report an injury or illness (including COVID-19)
• Considerations when hiring independent contractors, laborers, and domestic workers
• Lowering premiums
• Penalties and where to go for assistance with them

Sessions are free and there will be time at the end for questions. Registration is not required. To join, please select the “join webinar” link below.

Wednesday, November 2, 2022
12:00 P.M. - 1:00 P.M.
Join webinar
Add to your calendar!

Wednesday, December 7, 2022
12:00 P.M. - 1:00 P.M.
Join webinar
Add to your calendar!

Visit the Advocate for Business section of the Board’s website for additional resources.

You can also call the Advocate for Business office at (518) 486-3311 or email advocatebusiness@wcb.ny.gov.

 

Failure to alleged injury in the initial claim for Workers' Compensation Benefits or seek medical attention fatal to establishing eligibility for benefits

A patrol officer [Claimant] employed by a self-insured Sheriff's Department, filed a claim for workers' compensation benefits stemming from injuries to his jaw and head that occurred when he was assaulted by an individual while on duty. After Claimant's case was established he requested that his claim for benefits be amended to include "a causally-related injury to his left shoulder" based upon, in part, proof that he had been granted General Municipal Law §207-c benefits for that injury.

The Workers' Compensation Board [Board] determined that Claimant did not sustain a causally-related injury to his left shoulder and denied benefits base on this claim. Claimant appealed the Board's ruling.

Citing Workers' Compensation Law §2[7], the Appellate Division affirmed the Board's decision, explaining an injury is compensable only where it "aris[es] out of and in the course of employment" and the Claimant seeking benefits, "bears the burden of establishing, by competent medical evidence, a causal relationship between an injury and his or her employment." Further, said the court, the "factual determination" is the Board's and such decision will not be disturbed if supported by substantial evidence.

The Appellate Division's decision notes that Claimant testified that he injured his left shoulder while attempting to place restraints on an uncooperative, disorderly individual during the underlying incident but he had not asserted left shoulder injury in his initial claim for benefits and he did not seek medical attention for the alleged shoulder injury until five months following the incident. Further, said the Appellate Division, Claimant's "emergency room medical reports from the day of the incident reveal no concerns or complaints regarding his shoulder."

Significantly, a physician who evaluated Claimant on behalf of the Sheriff's Department opined that, based upon his review of Claimant's medical records and a physical examination, "Claimant's left shoulder injury was not causally-related to the underlying incident."

Addressing Claimant's arguments that relied on his being provided with General Municipal Law §207-c benefits, the Appellate Division opined that "it has long been held that Workers' Compensation Law and General Municipal Law §207-c are discrete statutory schemes designed to fulfill different purposes" and "do not necessarily examine and determine the same issue, in the same way, and under the same protocols, procedures and conditions, " citing Matter of Balcerak v County of Nassau, 94 NY2d 253.

Concluding that "substantial evidence supports the Board's conclusion" that Claimant did not sustain a causally- related injury to his left shoulder, the Appellate Division held that the Board's conclusion "will not be disturbed."

Click HEREto access the Appellate Division's decision posted on the Internet.

Disability Benefits for fire, police and other public sector personnel - An e-book focusing on retirement for disability under the NYS Employees' Retirement System, the NYS Teachers' Retirement System, General Municipal Law Sections 207-a/207-c and similar statutes providing benefits to employees injured both "on-the-job" and "off-the-job." For more information about this e-book click HERE or to Read a FREE excerpt click here (requires Adobe Reader).

 

Applying the doctrine of acting in loco parentis in situations involving a school district's minor students

A high school student who was a minor [Student] committed suicide while at home. Earlier that day [Student] had been [1] been "discharged" from school and [2] suspended for disciplinary infractions. Alleging negligence, breach of its in loco parentis duty, negligent infliction of emotional distress, and wrongful death, Student's mother [Parent] sued the School District, BOCES and certain named school officials [Defendants].

Parent, among other things alleged that Student committed suicide as a result of the failure of Defendants to provide proper supervision, bullying endured by Student, and improperly suspending Student. Supreme Court granted branches of Defendants' separate motions for summary judgment, dismissing certain causes of action insofar as asserted against each of them.

Parent appealed the Supreme Court's ruling but the Appellate Division affirmed Supreme Court's decision insofar as appealed from. The court explained that under the doctrine of acting in loco parentis with respect to its minor students, a school district owes a special duty to such students themselves and it "will be liable for foreseeable injuries proximately related to the absence of adequate supervision."

Noting that schools are not insurers of the safety of their students and the duty they owe to their students derives from their physical custody and control over the students, the Appellate Division opined that a school's custodial duty ceases once the student has passed out of the school's orbit of authority and the parent or guardian is perfectly free to reassume control over the child's protection, citing Vernali v Harrison Cent. School Dist., 51 AD3d 782. 

Although "[g]enerally, a school cannot be held liable for injuries that occur off school property and beyond the orbit of its authority," the Appellate Division's decision notes that a school's duty to its students continues and is breached if the student is released without further supervision into "a forseeably hazardous setting it had a hand in creating."

Opining that Defendants had established "their prima facie entitlement to judgment as a matter of law by demonstrating that the [Student] committed suicide when he was not on school property and no longer in their custody or under their control" and that the Defendants did not release the Student "into a foreseeably hazardous situation they had a hand in creating."

The Appellate Division's decision concludes by observing that [1] Defendants established their prima facieentitlement to judgment as a matter of law by demonstrating that they did not assume a separate special duty of care to protect Student and guard against him committing suicide and [2] Defendants lacked sufficient notice of the possibility of the Student's committing suicide to be liable for a breach of any such special duty.

Click HERE to access the Appellate Division's decision.

 

Summaries of recent decisions posted on the Internet by the New York City Office of Administrative Trials and Hearings [OATH]

                Click on text highlighted in color to access the text described.

 

Personnel

ALJ recommends termination of employment for one correction officer and 50 to 60 days’ suspension for the other officers for misconduct.

OATH Administrative Law Judge Kevin F. Casey found that three correction officers drank alcohol while on duty, two officers tampered with evidence, one officer used an unauthorized cell phone, and two officers made false statements to interviewers by denying that they consumed alcohol on duty.

Dep’t of Correction v. Wilson, Cameron, Williams, and Winfrey, OATH Index Nos. 117/22, 118/22, 119/22, 349/22, 415/22, and 487/22 (Mar. 4, 2022), adopted in part,modified on penalty in part, Comm’r Dec. (May 11, 2022).

Read more aboutDep’t of Correction v. Wilson, Cameron, Williams, and Winfrey

 

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.  Click to Read a FREE excerpt (requires Adobe Reader). 

 

Human Rights

Respondents found to have discriminated by failing to provide an accessible entrance and a reasonable accommodation.

OATH Administrative Law Judge Ingrid M. Addison found that respondents H&M and a property management company discriminated against a disabled complainant by failing to provide an accessible entrance that afforded full and equal enjoyment, on equal terms and conditions as able-bodied persons, and by failing to provide complainant and other disabled persons with a reasonable accommodation, in violation of the New York City Human Rights Law.

Comm’n on Human Rights ex rel. McKnight v. H & M Hennes & Mauritz L.P. & BJW Realty LLC et al., OATH Index No. 905/20 (Mar. 31, 2022).

Read more about Comm’n on Human Rights ex rel. McKnight v. H & M Hennes & Mauritz L.P. & BJW Realty LLC et al.

The Discipline Book - A concise guide to disciplinary actions involving public officers and employees in New York State set out as an e-book. For more about this electronic handbook, click HERE.   Click to Read a FREE excerpt (requires Adobe Reader).

A Reasonable Disciplinary Penalty Under the Circumstances - The text of this publication focuses on determining an appropriate disciplinary penalty to be imposed on an employee in the public service in instances where the employee has been found guilty of misconduct or incompetence. For more information click HERE. Click to Read a FREE excerpt (requires Adobe Reader).  

 

 

 

Civics and Science: Contemporary Issues for Civil Democracy

Dr. Robert A. Michaels, NYPPL's Science Consultant, has published a new book focusing on contemporary issues of critical importance to American democracy.  

The book explores, in a strictly non-partisan manner, the nexus between civics and science, identifying contemporary issues of critical importance for American democracy. 

It promotes objective, clear thinking toward evidence-based decision making in a range of important issue areas.  Dr. Michaels is a politically unaffiliated observer of politics.  His analysis is rigorous, and his writing engaging and personal.

Available in a Kindle Edition [$4.99] and in a paperback hard copy format [$19.99].  For additional information about this work and to order your copy from Amazon, click HERE.

Resolving a tie vote by the NYC Board of Trustees of Article 1-B considering a firefighter's application for accidental disability retirement

A New York City firefighter challenged denial of a firefighter's application for Accidental Disability Retirement [ADR] following a tie vote by the Board of Trustees of the Article 1-B Pension in the course of its considering the firefighter's application for ADR.

In this appeal the Appellate Division sustained the rejection of the firefighter's application for ADR after a "tie vote" by the Board of Trustees resulted in the firefighter receiving Ordinary Disability Retirement [ODR], explaining:

1. A firefighter becomes eligible for Accidental Disability Retirement [ADR] benefits when a medical examination and investigation results in a finding that the firefighter is physically or mentally incapacitated for the performance of city-service as a natural and proximate result of an injury received in city-service; and

2. If the Medical Board concludes that firefighter is disabled, it must next determine whether the disability is "a natural and proximate result of an accidental injury received in such city-service" and certify its recommendation on this issue to the Board of Trustees, which is ultimately responsible for retiring the city service member and determining the issue of service-related causation; and

3. Although the Board of Trustees is "bound by the medical board's determination of disability," the Board is not bound by the medical board's determination that the disability suffered by the firefighter was the result of a service-related accident and the burden of establishing that the disability is causally related to a line-of-duty accident rests with the applicant for ADR; and ultimately

4. In the event the vote by the Board of Trustees results in a tie with respect granting the applicant ADR, the Board of Trustees is required to retire the applicant for ADR with Ordinary Disability Retirement benefits.

Further, opined the Appellate Division, a court may not set aside the denial of ADR resulting from such a tie vote unless "it can be determined as a matter of law on the record that the disability was the natural and proximate result of a service-related accident."

Click HEREto access the decision of the Appellate Division posted on the Internet.

Civics and Science: Contemporary Issues for Civil Democracy

Dr. Robert A. Michaels, NYPPL's Science Consultant, has published a new book focusing on contemporary issues of critical importance to American democracy.  

The book explores, in a strictly non-partisan manner, the nexus between civics and science, identifying contemporary issues of critical importance for American democracy. 

It promotes objective, clear thinking toward evidence-based decision making in a range of important issue areas.  Dr. Michaels is a politically unaffiliated observer of politics.  His analysis is rigorous, and his writing engaging and personal.

Available in a Kindle Edition [$4.99] and in a paperback hard copy format [$19.99].  For additional information about this work and to order your copy from Amazon, click HERE.