Answering the questions asked by an investigator
Chance v Erickson, US Supreme Court, 522 U.S. 262
The U.S. Supreme Court has ruled that federal employees being investigated in connection with alleged employment-related misconduct who knowingly give false answers to the investigators may be given stiffer penalties than might otherwise be imposed on them for the underlying misconduct.
The Court said that an individual may decline to answer the question, or answer it honestly, but he [or she] cannot with impunity knowingly and willfully answer with a falsehood.
It is expected that other courts will follow the Supreme Court's rationale in cases involving efforts by state and municipal employers to impose additional sanctions on public employees who make false statements to persons conducting internal investigations of alleged wrongdoing by public workers.
The Chance decision concerned efforts by federal appointing authorities to increase the punishment imposed for misconduct in situations in which federal workers were found to have deliberately falsified responses to questions in the course of an internal investigation. Those investigations led to the filing of disciplinary charges against the individual under investigation.
The right to employee representation during questioning was not an issue in Chance. However, it should be noted that Section 75.2 of the Civil Service Law provides that an employee who at the time of questioning appears to be a potential subject of disciplinary action must be advised, in writing, that he or she has the right to have a representative present during the questioning. Disciplinary procedures negotiated under the Taylor Law frequently provide for employee representation during the investigatory phase of the procedure.
The Supreme Court overturned decisions by various appellate courts that upheld Federal Merit System Protection Board rulings that barred the imposition of extra punishment on employees who made false statements in the course of an internal departmental investigation of alleged misconduct by the employees.
The Board had reduced the harsher penalties by forcing federal employers to:
1. Issue a letter of reprimand instead of imposing demotions and 30-day suspensions on two individuals for working on non-government activities on government time.
2. Suspend a male supervisor for 14 days instead of demoting him for making inappropriate remarks to a female subordinate.
3. Suspend an individual for 15 days instead of dismissing the employee for motivating another individual to make harassing telephone calls to a third person.
4. Suspend an employee for 45 days instead of dismissing the individual for misuse of an agency credit card
5. Suspend a health employee for 90 days instead of instead of dismissing him for having had sex with a patient.
The Court commented that the fact that the false statements were not made under oath made no difference. Being charged and found guilty of making false statements in the course of an agency's investigation does not require that the employee make the false statements while under oath.
What about a situation where a truthful answer could expose the employee to criminal prosecution? If, said the Court, answering an agency's investigatory question could expose an employee to a criminal prosecution, he or she may exercise his or her Fifth Amendment right to remain silent -- but may not provide falsehoods in response to the question without being vulnerable to being disciplined for making such false statements.
As to the employee's refusal to answer, the decision notes that it may well be that an agency, in ascertaining the truth or falsity of the charge, would take into consideration the failure of the employee to respond ... there is nothing inherently irrational about such an investigative posture. The Court cited Baxter v. Palmigiano, 425 U.S. 308, which discusses the prevailing rule that the Fifth Amendment does not forbid adverse inferences against parties to civil actions when they refuse to testify.
For these reasons, said the Court we hold that a government agency may take adverse action against an employee because the employee made false statements in response to an underlying charge of misconduct.
In another case, Brogan v United States, 522 U.S. 398, the Supreme Court, by a 7-2 vote, upheld the conviction of a former union officer who answered no to a question asked by investigators concerning illegal payments he was allegedly paid. This untrue response was the basis for his being convicted of a federal law that made any false, fictitious or fraudulent statements or representations to the federal government a felony, even if the statement was not made under oath. The Court said that the Fifth Amendment privilege against self-incrimination does not prevent the government from prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries by claiming the protection of the Fifth Amendment.
The test of the Chance decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/falsely-answering-investigators.html
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Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
Sep 15, 2010
Appealing a Disciplinary Action
Appealing a Disciplinary Action
Podszus v Mt. Vernon, App Div, 246 AD2d 548
The Podszus case demonstrates the importance of selecting the correct forum to hear an appeal.
The Commissioner of Public Safety found William Podszus, a City of Mount Vernon police officer, guilty of charges of insubordination and malicious gossip and imposed as the penalty of the forfeiture of 10 days of pay. Podszus filed an Article 78 action in State Supreme Court challenging both the evidentiary basis for the Commissioner's determination and the penalty imposed. This proved to be the wrong court for such an appeal.
The Appellate Division said that Section 120 of the City's Charter provided that the exclusive vehicle for a police officer seeking review of a determination of the Commissioner is a direct appeal to the Appellate Division within 30 days following the Commissioner's decision.
Accordingly, the Court dismissed the appeal as the Supreme Court did not have subject matter jurisdiction to consider Podszus' petition nor authority to transfer it to the Appellate Division.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Podszus v Mt. Vernon, App Div, 246 AD2d 548
The Podszus case demonstrates the importance of selecting the correct forum to hear an appeal.
The Commissioner of Public Safety found William Podszus, a City of Mount Vernon police officer, guilty of charges of insubordination and malicious gossip and imposed as the penalty of the forfeiture of 10 days of pay. Podszus filed an Article 78 action in State Supreme Court challenging both the evidentiary basis for the Commissioner's determination and the penalty imposed. This proved to be the wrong court for such an appeal.
The Appellate Division said that Section 120 of the City's Charter provided that the exclusive vehicle for a police officer seeking review of a determination of the Commissioner is a direct appeal to the Appellate Division within 30 days following the Commissioner's decision.
Accordingly, the Court dismissed the appeal as the Supreme Court did not have subject matter jurisdiction to consider Podszus' petition nor authority to transfer it to the Appellate Division.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Determinng Claims for accidental disability retirement benefits based on GML Section 207-kk, the so-called "Cancer Bill"
Determinng Claims for accidental disability retirement benefits based on GML Section 207-kk, the so-called "Cancer Bill"
Kopetz v Article 1-B Pension Fund, 255 A.D.2d 443
The so-called Cancer Bill, General Municipal Law Section 207-kk, provides eligibility for accidental disability retirement under certain conditions.
Frederick Kopetz, a former New York City firefighter, challenged a determination by his pension fund rejecting his application for an accidental disability retirement allowance. Kopetz's claim was based on his having had cancer and undergoing a nephrectomy for removal of the right kidney.
Kopetz had returned to full duty, and had been cancer-free since the surgery. He was placed on light duty because of other medical conditions. Eventually the Medical Board of the New York City Fire Department Article 1-B Pension Fund concluded that he was not capable of full duty and recommended that he be retired on ordinary disability.
The Board of Trustees of the pension fund concurred. It observed that Kopetz's own physicians indicated that his disability was caused by hypertension and cerebrovascular insufficiency. Because his disability was not result of cancer or any line-of-duty injury, the board concluded that he was not entitled to benefits under the cancer bill.
Kopetz objected, contending that he should be retired on accidental disability retirement on the theory that he was entitled to an ADR because he once had cancer.
He contended that the law granted accidental disability retirement benefits to qualified persons who suffer:
... any condition of impairment of health caused by (i) any condition of cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems or (ii) melanoma resulting in total or partial disability or death to a paid member of a fire department in a city with a population of one million or more [i.e., the City of New York], who successfully passed a physical examination on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty unless the contrary be proved by competent evidence.
New York State Supreme Court Justice Vaughan dismissed Kopetz's petition. The court commenting that Kopetz, who bore the burden of proof, had not met his burden. A court cannot disturb an administrative determination unless it finds that the determination is arbitrary or capricious or erroneous as a matter of law. Justice Vaughn said there was no basis for such a determination in this case.
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Kopetz v Article 1-B Pension Fund, 255 A.D.2d 443
The so-called Cancer Bill, General Municipal Law Section 207-kk, provides eligibility for accidental disability retirement under certain conditions.
Frederick Kopetz, a former New York City firefighter, challenged a determination by his pension fund rejecting his application for an accidental disability retirement allowance. Kopetz's claim was based on his having had cancer and undergoing a nephrectomy for removal of the right kidney.
Kopetz had returned to full duty, and had been cancer-free since the surgery. He was placed on light duty because of other medical conditions. Eventually the Medical Board of the New York City Fire Department Article 1-B Pension Fund concluded that he was not capable of full duty and recommended that he be retired on ordinary disability.
The Board of Trustees of the pension fund concurred. It observed that Kopetz's own physicians indicated that his disability was caused by hypertension and cerebrovascular insufficiency. Because his disability was not result of cancer or any line-of-duty injury, the board concluded that he was not entitled to benefits under the cancer bill.
Kopetz objected, contending that he should be retired on accidental disability retirement on the theory that he was entitled to an ADR because he once had cancer.
He contended that the law granted accidental disability retirement benefits to qualified persons who suffer:
... any condition of impairment of health caused by (i) any condition of cancer affecting the lymphatic, digestive, hematological, urinary or prostate systems or (ii) melanoma resulting in total or partial disability or death to a paid member of a fire department in a city with a population of one million or more [i.e., the City of New York], who successfully passed a physical examination on entry into the service of such department, which examination failed to reveal any evidence of such condition, shall be presumptive evidence that it was incurred in the performance and discharge of duty unless the contrary be proved by competent evidence.
New York State Supreme Court Justice Vaughan dismissed Kopetz's petition. The court commenting that Kopetz, who bore the burden of proof, had not met his burden. A court cannot disturb an administrative determination unless it finds that the determination is arbitrary or capricious or erroneous as a matter of law. Justice Vaughn said there was no basis for such a determination in this case.
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Retirees’ rights to health insurance benefits
Retirees’ rights to health insurance benefits
Prater v Ohio Education Assoc. CA6, Docket #06-4393
Retired employees of Education Association sued, contending that the Association had improperly terminated their health benefits that had been provided in accordance with the terms of a series of collective bargaining agreements.
The Circuit Court ruled that descriptions of health insurance benefits prepared by the Association cannot supersede the provisions set out in a collective bargaining agreement.
The full text of the decision is posted at:
http://www.ca6.uscourts.gov/opinions.pdf/07a0405p-06.pdf
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Prater v Ohio Education Assoc. CA6, Docket #06-4393
Retired employees of Education Association sued, contending that the Association had improperly terminated their health benefits that had been provided in accordance with the terms of a series of collective bargaining agreements.
The Circuit Court ruled that descriptions of health insurance benefits prepared by the Association cannot supersede the provisions set out in a collective bargaining agreement.
The full text of the decision is posted at:
http://www.ca6.uscourts.gov/opinions.pdf/07a0405p-06.pdf
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Sep 14, 2010
Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee
Attorney in private practice employed by municipality to conduct an investigation claims qualified immunity when sued by employee
Delia v. City of Rialto, USCA, 9th Circuit, No. 09-55514, decided September 9, 2010
In this 42 USC §1983 action, Firefighter Nicholas B. Delia sued the City of Rialto, the Rialto Fire Department, a number of Rialto Fire Department officials and a private attorney, Steve Filarsky alleging violations of his constitutional rights during a departmental internal affairs investigation in which he was involved.
Although the Ninth Circuit concluded that Delia’s constitutional right under the Fourth Amendment were violated as the result of a warrantless search of his home, it also determined that this right was not clearly established at the time of this constitutional violation. Accordingly, the Circuit Court affirmed the district court’s order granting qualified immunity to the several fire officials named in Delia’ complaint and affirmed the lower court’s granting the City’s motion for summary judgment dismissing Delia’s complaint.
The Circuit Court, however, reverse the district court’s granting qualified immunity to Filarsky, the private attorney retained by the City in the course of its investigation of Delia.*
The court explained that the doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” citing Pearson v Callahan, 129 S. Ct. 808.
In Pearson the Supreme Court indicated that the basis for proving public officials with “qualified immunity” was to balance “two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”
Addressing the lower court’s deeming Filarsky eligible for such qualified immunity, the Circuit Court said that “Unlike the other individual defendants in this case, Filarsky is not an employee of the City." Rather, said the court, he is a private attorney, retained by the City to perform certain services in connection with an internal affairs investigation.
Delia contended that Filarsky, as a private attorney, was not entitled to claim a qualified immunity while Filarsky argued that under the circumstances, and his work on behalf of the City, this was “a distinction without a difference.”
In support of his argument Filarsky cited Culliman v Abramson, 128 F.3d 301. In Culliman the Sixth Circuit Court of Appeals held that a law firm that had been hired by the City of Louisville to serve as outside counsel was entitled to qualified immunity against plaintiffs’ §1983 claims.
In Culliman the court said “We see no good reason to hold the city’s in-house counsel eligible for qualified immunity and not the city’s outside counsel.”
Acknowledging the 6th Circuit’s ruling, the Ninth Circuit court noted that in Gonzalez v Spencer, 336 F.3d 832, a different panel of the 9th Circuit held that a private attorney representing a county was not entitled to qualified immunity.
The defendant in Gonzales was a private attorney retained to defend Los Angeles County in an underlying civil rights suit brought by the plaintiff.
In rejecting the attorney’s claim of qualified immunity, the Gonzales court reasoned, “[the attorney] is not entitled to qualified immunity. She is a private party, not a government employee, and she has pointed to ‘no special reasons significantly favoring an extension of governmental immunity’ to private parties in her position.’”
The Circuit Court said that it was bound by the Gonzalez decision as Filarsky did not allege any “intervening en banc decision [by the Ninth Circuit], Supreme Court decision,** or intervening legislation which would permit us to overrule the holding in Gonzalez.”
Thus, said the court, Filarsky was not entitled to qualified immunity as a private attorney performing services for a public entity and reversed the district court’s grant of summary judgment in his favor. It then remanded the matter for trial or “further proceedings as determined by the district court.”
* Filarsky had previously represented the City in conducting interviews during internal affairs investigations.
** The 6th Circuit’s holding in Culliman and the 9th Circuit’s holding in Gonzalez suggests that the issue of whether an attorney in private practice performing services on behalf of a government entity may claim a “qualified immunity” if named as a defendant as the result of some act or omission in the performance of his or her duties may be ripe for consideration by the Supreme Court.
The decision is posted on the Internet at:
http://www.ca9.uscourts.gov/datastore/opinions/2010/09/09/09-55514.pdf
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Delia v. City of Rialto, USCA, 9th Circuit, No. 09-55514, decided September 9, 2010
In this 42 USC §1983 action, Firefighter Nicholas B. Delia sued the City of Rialto, the Rialto Fire Department, a number of Rialto Fire Department officials and a private attorney, Steve Filarsky alleging violations of his constitutional rights during a departmental internal affairs investigation in which he was involved.
Although the Ninth Circuit concluded that Delia’s constitutional right under the Fourth Amendment were violated as the result of a warrantless search of his home, it also determined that this right was not clearly established at the time of this constitutional violation. Accordingly, the Circuit Court affirmed the district court’s order granting qualified immunity to the several fire officials named in Delia’ complaint and affirmed the lower court’s granting the City’s motion for summary judgment dismissing Delia’s complaint.
The Circuit Court, however, reverse the district court’s granting qualified immunity to Filarsky, the private attorney retained by the City in the course of its investigation of Delia.*
The court explained that the doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” citing Pearson v Callahan, 129 S. Ct. 808.
In Pearson the Supreme Court indicated that the basis for proving public officials with “qualified immunity” was to balance “two important interests — the need to hold public officials accountable when they exercise power irresponsibly and the need to shield officials from harassment, distraction, and liability when they perform their duties reasonably.”
Addressing the lower court’s deeming Filarsky eligible for such qualified immunity, the Circuit Court said that “Unlike the other individual defendants in this case, Filarsky is not an employee of the City." Rather, said the court, he is a private attorney, retained by the City to perform certain services in connection with an internal affairs investigation.
Delia contended that Filarsky, as a private attorney, was not entitled to claim a qualified immunity while Filarsky argued that under the circumstances, and his work on behalf of the City, this was “a distinction without a difference.”
In support of his argument Filarsky cited Culliman v Abramson, 128 F.3d 301. In Culliman the Sixth Circuit Court of Appeals held that a law firm that had been hired by the City of Louisville to serve as outside counsel was entitled to qualified immunity against plaintiffs’ §1983 claims.
In Culliman the court said “We see no good reason to hold the city’s in-house counsel eligible for qualified immunity and not the city’s outside counsel.”
Acknowledging the 6th Circuit’s ruling, the Ninth Circuit court noted that in Gonzalez v Spencer, 336 F.3d 832, a different panel of the 9th Circuit held that a private attorney representing a county was not entitled to qualified immunity.
The defendant in Gonzales was a private attorney retained to defend Los Angeles County in an underlying civil rights suit brought by the plaintiff.
In rejecting the attorney’s claim of qualified immunity, the Gonzales court reasoned, “[the attorney] is not entitled to qualified immunity. She is a private party, not a government employee, and she has pointed to ‘no special reasons significantly favoring an extension of governmental immunity’ to private parties in her position.’”
The Circuit Court said that it was bound by the Gonzalez decision as Filarsky did not allege any “intervening en banc decision [by the Ninth Circuit], Supreme Court decision,** or intervening legislation which would permit us to overrule the holding in Gonzalez.”
Thus, said the court, Filarsky was not entitled to qualified immunity as a private attorney performing services for a public entity and reversed the district court’s grant of summary judgment in his favor. It then remanded the matter for trial or “further proceedings as determined by the district court.”
* Filarsky had previously represented the City in conducting interviews during internal affairs investigations.
** The 6th Circuit’s holding in Culliman and the 9th Circuit’s holding in Gonzalez suggests that the issue of whether an attorney in private practice performing services on behalf of a government entity may claim a “qualified immunity” if named as a defendant as the result of some act or omission in the performance of his or her duties may be ripe for consideration by the Supreme Court.
The decision is posted on the Internet at:
http://www.ca9.uscourts.gov/datastore/opinions/2010/09/09/09-55514.pdf
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Continuing Legal Education courses offered pro bono by Tully Rinckey, PLLC
Continuing Legal Education courses offered pro bono by Tully Rinckey, PLLC
Source: Announcement from Tully Rinckey
Tully Rinckey, a law firm headquartered in Albany, New York, is offering a number of continuing legal education [CLE] courses that can be used to satisfy the minimum annual CLE requirements for newly admitted attorneys without any cost to the participants.
The first in the series of the monthly CLE courses being offered, Domestic Violence, will be held on September 21, 2010 in the Tully Rinckey Conference Room, 441 New Karner Road, Albany, NY. This one-hour course will be presented by Jennifer Corcoran, Esq. and starts at 6:00 p.m. Participants will earn one [1] CLE credit in the area of professional practice.
To register for the course, and for information about the other CLE courses to be offered, call Tully Rinckey [518-640-1258] or e-mail the firm at CLE@tullylegal.com.
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Source: Announcement from Tully Rinckey
Tully Rinckey, a law firm headquartered in Albany, New York, is offering a number of continuing legal education [CLE] courses that can be used to satisfy the minimum annual CLE requirements for newly admitted attorneys without any cost to the participants.
The first in the series of the monthly CLE courses being offered, Domestic Violence, will be held on September 21, 2010 in the Tully Rinckey Conference Room, 441 New Karner Road, Albany, NY. This one-hour course will be presented by Jennifer Corcoran, Esq. and starts at 6:00 p.m. Participants will earn one [1] CLE credit in the area of professional practice.
To register for the course, and for information about the other CLE courses to be offered, call Tully Rinckey [518-640-1258] or e-mail the firm at CLE@tullylegal.com.
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Early termination of a school superintendent's contract permitted
Early termination of a school superintendent's contract permitted
Peebles and Forestville CSD, Comm of Ed Decision 13845
A school board's approval of the early termination of its school superintendent's contract resulted in a board member filing a complaint concerning its action with the Commissioner of Education.
Forestville Central School District Superintendent J. Richard Rodriguez was under contract with the District through June 30, 1997. The contract allowed Rodriguez to resign prior to that date by giving the Board of Education at least 90 days written notice. The contract also permitted the Board and the Superintendent to terminate the Superintendent's employment at any time on such terms as they mutually agree upon in writing.
On June 5, 1996 Rodriguez learned that he had been appointed as superintendent by another district effective August 5, 1996. Rodriguez and Tina Duliba, the then Board President, discussed the District's waiving the 90-day notice requirement in exchange for Rodriguez's returning 31 unused vacation days and a pro-rata portion of a $10,000 performance award due him.
During an executive session held by the Board on June 19, 1996, the waiver plan was discussed and Rodriguez submitted his resignation. At its regular meeting on the same day Board member Richard L. Peebles introduced a motion to accept Rodriguez's resignation effective August 4, 1996. His motion was adopted by a unanimous vote.
On August 26, 1996 Peebles filed an appeal with the Commissioner of Education challenging the Board's waiver allowing the early termination of Rodriguez's contract. Peebles contended that Duliba permitted Rodriguez to violate his employment contract by allowing him to leave 45 days early. He also charged that Rodriguez's salary had been miscalculated, resulting in a $12,500 loss to the District. Peebles asked the Commissioner to remove Duliba from the Board and to order Rodriguez to reimburse the District $12,500.
On September 4, 1996 the Board adopted a resolution ratifying its June 19 executive session agreement with Rodriguez, including his surrendering vacation days and part of his performance pay in exchange for its waiving the 90-day notice requirement.
The Board responded to Peebles' claims by arguing that it and Rodriguez had mutually agreed upon the terms of his release from the contract at the June 19 executive session and any failure to record the terms of the agreement were [sic] cured when the Board ratified the agreement with a formal resolution on September 4, 1996.
The Commissioner dismissed Peebles' appeal, finding:
1. Peebles failed to satisfy his burden of establishing the facts upon which he sought relief.
2. Evidence submitted by the Board indicated that the entire Board discussed and approved the early release date and accepted Rodriguez's offer to exchange vacation days and a pro-rata portion of his performance bonus for its approving his early release from the contract.
3. Although the business office had originally miscalculated Rodriguez's salary, the error was eventually corrected and it does not appear that the District overpaid Rodriguez .
In addition, the Commissioner said that there is simply no basis for the removal of ... Duliba since there is no evidence of a willful violation or neglect of duty under [Section 306.1 of the Education] law.
Probably this situation would have been avoided had the District memorialized the decision or agreements reached by the parties during the Board's executive session at the Board's regular meeting later that day.
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Peebles and Forestville CSD, Comm of Ed Decision 13845
A school board's approval of the early termination of its school superintendent's contract resulted in a board member filing a complaint concerning its action with the Commissioner of Education.
Forestville Central School District Superintendent J. Richard Rodriguez was under contract with the District through June 30, 1997. The contract allowed Rodriguez to resign prior to that date by giving the Board of Education at least 90 days written notice. The contract also permitted the Board and the Superintendent to terminate the Superintendent's employment at any time on such terms as they mutually agree upon in writing.
On June 5, 1996 Rodriguez learned that he had been appointed as superintendent by another district effective August 5, 1996. Rodriguez and Tina Duliba, the then Board President, discussed the District's waiving the 90-day notice requirement in exchange for Rodriguez's returning 31 unused vacation days and a pro-rata portion of a $10,000 performance award due him.
During an executive session held by the Board on June 19, 1996, the waiver plan was discussed and Rodriguez submitted his resignation. At its regular meeting on the same day Board member Richard L. Peebles introduced a motion to accept Rodriguez's resignation effective August 4, 1996. His motion was adopted by a unanimous vote.
On August 26, 1996 Peebles filed an appeal with the Commissioner of Education challenging the Board's waiver allowing the early termination of Rodriguez's contract. Peebles contended that Duliba permitted Rodriguez to violate his employment contract by allowing him to leave 45 days early. He also charged that Rodriguez's salary had been miscalculated, resulting in a $12,500 loss to the District. Peebles asked the Commissioner to remove Duliba from the Board and to order Rodriguez to reimburse the District $12,500.
On September 4, 1996 the Board adopted a resolution ratifying its June 19 executive session agreement with Rodriguez, including his surrendering vacation days and part of his performance pay in exchange for its waiving the 90-day notice requirement.
The Board responded to Peebles' claims by arguing that it and Rodriguez had mutually agreed upon the terms of his release from the contract at the June 19 executive session and any failure to record the terms of the agreement were [sic] cured when the Board ratified the agreement with a formal resolution on September 4, 1996.
The Commissioner dismissed Peebles' appeal, finding:
1. Peebles failed to satisfy his burden of establishing the facts upon which he sought relief.
2. Evidence submitted by the Board indicated that the entire Board discussed and approved the early release date and accepted Rodriguez's offer to exchange vacation days and a pro-rata portion of his performance bonus for its approving his early release from the contract.
3. Although the business office had originally miscalculated Rodriguez's salary, the error was eventually corrected and it does not appear that the District overpaid Rodriguez .
In addition, the Commissioner said that there is simply no basis for the removal of ... Duliba since there is no evidence of a willful violation or neglect of duty under [Section 306.1 of the Education] law.
Probably this situation would have been avoided had the District memorialized the decision or agreements reached by the parties during the Board's executive session at the Board's regular meeting later that day.
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Financial Disclosure by Federal Officers
Financial Disclosure by Federal Officers
Formal Opinion of the Attorney General 98-F1
The Attorney General concludes that federal officials serving as members or directors of State public benefit corporation to monitor federal funds cannot be required to comply with New York's financial disclosure requirements [Section 73-a, Public Officers Law].
The opinion indicates that a state cannot impose qualifications on federal officials in addition to those the federal government had deemed sufficient where the federal officials are serving with the corporation as officials of the federal government rather than in their personal capacities.
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Formal Opinion of the Attorney General 98-F1
The Attorney General concludes that federal officials serving as members or directors of State public benefit corporation to monitor federal funds cannot be required to comply with New York's financial disclosure requirements [Section 73-a, Public Officers Law].
The opinion indicates that a state cannot impose qualifications on federal officials in addition to those the federal government had deemed sufficient where the federal officials are serving with the corporation as officials of the federal government rather than in their personal capacities.
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Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful
Disciplinary action for failure to maintain height and weight requirements to continue in public employment lawful
Francis v. City of Meriden, CA2, 129 F.3d 281, Cert. denied, 526 U.S. 1018
Does disciplining law enforcement personnel and firefighters who fail to meet certain “weight/height” guidelines constitute unlawful discrimination under Americans with Disabilities Act of 1990 [ADA] or the Rehabilitation Act of 1973 [RHA]? In the Francis case, the U.S. Circuit Court of Appeals, Second Circuit [New York], ruled that such discipline is not discriminatory.
City of Meriden, Connecticut, firefighter John A. Francis had been suspended for one day because he exceeded the Meriden fire department’s weight/fitness guidelines for firefighters set out in a collective bargaining agreement. Under the terms of the agreement, a firefighter whose weight exceeded the limits had to demonstrate his or her fitness by passing either a body fat test or a physical fitness test. If the firefighter was unable to do so, he or she could be disciplined and subject to disciplinary penalties up to and including termination.
Obesity, except in cases where the obesity relates to a physiological disorder, is not a “physical impairment” within the meaning of the statutes. For the purposes of ADA and RHA, an “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within “normal” range and are not the result of a physiological disorder. [29 C.F.R. Section 1630.2(h)]
To state a claim under the ADA or the RHA, individual must either have an impairment or be able to show that he or she was “regarded as” having such an impairment.” An employer who disciplines an employee for not meeting certain weight guidelines has not unlawfully discriminated against the employee unless it can be shown that either (1) the weight condition is the symptom of a physiological disorder, or (2) that the employer’s disciplinary action was based on the perception that the employee is obese as a result of a physiological disorder (“morbidly obese.”) [See Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997)]
According to the decision, “a plaintiff ... must allege that the employer believed, however erroneously, that the individual suffered from an “impairment” that, if it truly existed, would be covered under the statutes and that the employer discriminated against the plaintiff on that basis.” The Court said Francis’ action had to be dismissed because “to hold otherwise would open up the ‘regarded as’ prongs of the ADA and the RHA to a range of physical conditions -- height, strength, dexterity, and left-handedness, for example -- not meant to be covered by the Acts.”
The Court said that employers subject to ADA and the Rehabilitation Act may not discriminate against a qualified individual with a disability with respect to the “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
A “physical impairment” under the ADA is defined by regulations issued by the Equal Employment Opportunity Commission (“EEOC”) as “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, ... cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. Section 1630.2(h)(1).1. For the purposes of HRA, the same definition is applied [45 C.F.R. Section 84.3(j)(2)(i).2].
The text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/heightweight-requirements-in-public.html
Francis v. City of Meriden, CA2, 129 F.3d 281, Cert. denied, 526 U.S. 1018
Does disciplining law enforcement personnel and firefighters who fail to meet certain “weight/height” guidelines constitute unlawful discrimination under Americans with Disabilities Act of 1990 [ADA] or the Rehabilitation Act of 1973 [RHA]? In the Francis case, the U.S. Circuit Court of Appeals, Second Circuit [New York], ruled that such discipline is not discriminatory.
City of Meriden, Connecticut, firefighter John A. Francis had been suspended for one day because he exceeded the Meriden fire department’s weight/fitness guidelines for firefighters set out in a collective bargaining agreement. Under the terms of the agreement, a firefighter whose weight exceeded the limits had to demonstrate his or her fitness by passing either a body fat test or a physical fitness test. If the firefighter was unable to do so, he or she could be disciplined and subject to disciplinary penalties up to and including termination.
Obesity, except in cases where the obesity relates to a physiological disorder, is not a “physical impairment” within the meaning of the statutes. For the purposes of ADA and RHA, an “impairment” does not include physical characteristics such as eye color, hair color, left-handedness, or height, weight or muscle tone that are within “normal” range and are not the result of a physiological disorder. [29 C.F.R. Section 1630.2(h)]
To state a claim under the ADA or the RHA, individual must either have an impairment or be able to show that he or she was “regarded as” having such an impairment.” An employer who disciplines an employee for not meeting certain weight guidelines has not unlawfully discriminated against the employee unless it can be shown that either (1) the weight condition is the symptom of a physiological disorder, or (2) that the employer’s disciplinary action was based on the perception that the employee is obese as a result of a physiological disorder (“morbidly obese.”) [See Andrews v. State of Ohio, 104 F.3d 803 (6th Cir. 1997)]
According to the decision, “a plaintiff ... must allege that the employer believed, however erroneously, that the individual suffered from an “impairment” that, if it truly existed, would be covered under the statutes and that the employer discriminated against the plaintiff on that basis.” The Court said Francis’ action had to be dismissed because “to hold otherwise would open up the ‘regarded as’ prongs of the ADA and the RHA to a range of physical conditions -- height, strength, dexterity, and left-handedness, for example -- not meant to be covered by the Acts.”
The Court said that employers subject to ADA and the Rehabilitation Act may not discriminate against a qualified individual with a disability with respect to the “job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment.”
A “physical impairment” under the ADA is defined by regulations issued by the Equal Employment Opportunity Commission (“EEOC”) as “[a]ny physiological disorder, or condition, cosmetic disfigurement, or anatomical loss affecting one or more of the following body systems: neurological, musculoskeletal, special sense organs, respiratory, ... cardiovascular, reproductive, digestive, genito-urinary, hemic and lymphatic, skin, and endocrine.” 29 C.F.R. Section 1630.2(h)(1).1. For the purposes of HRA, the same definition is applied [45 C.F.R. Section 84.3(j)(2)(i).2].
The text of the decision is posted at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/heightweight-requirements-in-public.html
Sep 13, 2010
Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation
Newspaper ordered to disclose the source of alleged inaccurate information it published to the individual suing for alleged defamation
Matter of Pakter v New York City Dept .of Educ., 2010 NY Slip Op 32451(U, August 20, 2010, Supreme Court, New York County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]
David Pakter, a school teacher employed by the New York City Department of Education [DOE], was charged with misconduct and removed from his classroom teaching duties and assigned to one of the DOE’S reassignment centers, also known as the “rubber rooms.’’
On March 21, 2010, the New York Post published an article titled “Bored of Ed. in Rubber Rooms.” A sidebar to this article featuring “notable rubber room residents” included Pakter and stated that he was charged with sexual misconduct. Pakter, however, had not been charged with sexual misconduct and the Post subsequently ran a retraction.
Pakter, believing himself to have been defamed and intending to bring a lawsuit against the person or persons who provided the Post with the inaccurate information, asked the Post and DOE to identify the source of the incorrect statement.
When his request was denied, Pakter filed a petition in Supreme Court seeking a court order to compel the disclosure the name or names of the person or persons involved with providing the information and any documentation that he had been charged with sexual misconduct. He also asked for a court order compelling the Post and DOE to preserve all “notes, emails, and electronically stored information” concerning the event.
Judge Kern ruled that Pakter was entitled to “pre-action disclosure of information” as to the identity of the source or sources who provided the Post with the statement as he had made a “strong showing that a cause of action exists” for a cause of action for defamation alleging a false statement, published without privilege or authorization to a third party.
Further, said the court, such pre-action discovery is permitted in cases, such as here, where an individual having a valid claim for defamation needs "to identify the unnamed source or sources who provided defamatory information to a newspaper in order to bring an action against them."
The Post was ordered to answer interrogatories limited to the issue of the name(s) of the source or sources who provided the Post with the statement that Pakter had been charged with sexual misconduct "as reported in the article and sidebar to the article entitled 'Bored of Ed. in Rubber Rooms'" and, in addition, both the Post and DOE were directed “to preserve any documents, reporter’s notes, emails, and electronically stored information related to the statement at issue.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32451.pdf
N.B. Now pending before the Court of Appeals is Geraci v Probst [see 61 AD3d 717]. This case concerns whether the original publisher of a libelous letter could be held responsible for its subsequent publication in a newspaper. The Appellate Division's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_02971.htm
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Matter of Pakter v New York City Dept .of Educ., 2010 NY Slip Op 32451(U, August 20, 2010, Supreme Court, New York County, Judge Cynthia S. Kern [Not selected for publication in the Official Reports]
David Pakter, a school teacher employed by the New York City Department of Education [DOE], was charged with misconduct and removed from his classroom teaching duties and assigned to one of the DOE’S reassignment centers, also known as the “rubber rooms.’’
On March 21, 2010, the New York Post published an article titled “Bored of Ed. in Rubber Rooms.” A sidebar to this article featuring “notable rubber room residents” included Pakter and stated that he was charged with sexual misconduct. Pakter, however, had not been charged with sexual misconduct and the Post subsequently ran a retraction.
Pakter, believing himself to have been defamed and intending to bring a lawsuit against the person or persons who provided the Post with the inaccurate information, asked the Post and DOE to identify the source of the incorrect statement.
When his request was denied, Pakter filed a petition in Supreme Court seeking a court order to compel the disclosure the name or names of the person or persons involved with providing the information and any documentation that he had been charged with sexual misconduct. He also asked for a court order compelling the Post and DOE to preserve all “notes, emails, and electronically stored information” concerning the event.
Judge Kern ruled that Pakter was entitled to “pre-action disclosure of information” as to the identity of the source or sources who provided the Post with the statement as he had made a “strong showing that a cause of action exists” for a cause of action for defamation alleging a false statement, published without privilege or authorization to a third party.
Further, said the court, such pre-action discovery is permitted in cases, such as here, where an individual having a valid claim for defamation needs "to identify the unnamed source or sources who provided defamatory information to a newspaper in order to bring an action against them."
The Post was ordered to answer interrogatories limited to the issue of the name(s) of the source or sources who provided the Post with the statement that Pakter had been charged with sexual misconduct "as reported in the article and sidebar to the article entitled 'Bored of Ed. in Rubber Rooms'" and, in addition, both the Post and DOE were directed “to preserve any documents, reporter’s notes, emails, and electronically stored information related to the statement at issue.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/pdfs/2010/2010_32451.pdf
N.B. Now pending before the Court of Appeals is Geraci v Probst [see 61 AD3d 717]. This case concerns whether the original publisher of a libelous letter could be held responsible for its subsequent publication in a newspaper. The Appellate Division's decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2009/2009_02971.htm
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Employee’s reporting feeling “tired, lethargic, fatigue-ish and ill” insufficient notice to trigger the protections of the FMLA
Employee’s reporting feeling “tired, lethargic, fatigue-ish and ill” insufficient notice to trigger the protections of the FMLA
Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Jordan To was employed by US Bank as a Senior Research Clerk.
While employed, To joined the Minnesota National Guard. As ordered, To attended Guard training at Fort Benning for approximately three months. He kept his employer informed of his expected return to work.
When his return date came, To called his supervisor and informed him that because he was feeling tired, lethargic fatigue-ish he needed a few days off to recuperate and would not be back to work as previously planned. To was told that, to be excused, he would need a doctor's note, which To provided. To provided a doctor's note, which excused his continuing absence from work citing only "illness."
As his revised return days approached, To would call his supervisor requesting additional leave because "he was still not feeling well." A second doctor's sought to excuse his continuing absence due to "illness." The pattern continued of more calls to work asking for additional leave because he "was still feeling the same symptoms."
Eventually, To remained absent from work but stopped calling his supervisor as required by US Bank policy. US Bank fired To.
To sued, alleging violation of the FMLA. US Bank moved for summary judgment.
In awarding summary judgment to US Bank, the court found that To had failed to provide adequate notice of his need for FMLA leave.
In the Sixth Circuit, whether an employee provided adequate notice of the need for leave is based on whether the information imparted to the employer is sufficient to reasonably apprise the employer that the need for leave is due to a serious health condition. An employee must explain their need for leave in a way that makes it reasonably plaint that the employee's health condition is serious and that this is why the employee needs to be absent.
By informing his employer that he "was felling ill, tired, lethargic, fatigue-ish... and that he needed a few days to recuperate," To failed to reasonably apprise US Bank that his need for leave was due to an FMLA-covered serious health condition. As additional evidence of To's failure to provide adequate notice, the Court also cited the doctor's slips, which simply referenced "illness" as the reason he needed to be absent from work.
The Court also found that US Bank had the right to terminate To for violating company policy requiring him to notify his supervisor, not someone else, of his need for leave. Under US Bank policy, an employee who is absent for two consecutive work days and who fails to report those absences to their immediate supervisor is considered to have abandoned their job. That, the Court found, is what happened in this case.
Absent unusual circumstances, the FMLA allows an employer to enforce their usual and customary leave policies and procedures. 29 CFR 825.302(d). The Court found not "unusual circumstances" that prevented To from complying with US Bank's direct reporting requirement.
Mr. Bosland Comments: To perfect the right to job-protected FMLA leave, employees do not have to invoke the FMLA by name (although they may). Employee's must, however, articulate facts that arguably fit one or more FMLA-covered serious health conditions. Claiming that you are "ill," or "sick," or "fatigued" simply fails that test. Courts have uniformly held that such generic language fails to reasonably alert the employer that the need for leave is due to a "serious" health condition that might be FMLA-qualifying.
Even if To had provided adequate notice of the need for leave, US Bank would have been within its right to deny FMLA leave coverage and terminate him for violating the company's leave reporting policies and procedures. To perfect the right to FMLA leave, employees must provide adequate notice of the need for leave, and abide by their company's leave reporting policies. An employee might be excused both from providing adequate notice and complying with the employer's leave reporting policies if they were unable to do so. That was not the case with To.
To v. US Bancorp, No. 08-5979 (JRT/JJK), (D. Minn. Sept. 7, 2010)
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100907a83
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Source: The FMLA Blog - http://federalfmla.typepad.com/fmla_blog/
Copyright © 2010. All rights reserved by Carl C. Bosland, Esq. Reproduced with permission. Mr. Bosland is the author of A Federal Sector Guide to the Family and Medical Leave Act & Related Litigation.
Jordan To was employed by US Bank as a Senior Research Clerk.
While employed, To joined the Minnesota National Guard. As ordered, To attended Guard training at Fort Benning for approximately three months. He kept his employer informed of his expected return to work.
When his return date came, To called his supervisor and informed him that because he was feeling tired, lethargic fatigue-ish he needed a few days off to recuperate and would not be back to work as previously planned. To was told that, to be excused, he would need a doctor's note, which To provided. To provided a doctor's note, which excused his continuing absence from work citing only "illness."
As his revised return days approached, To would call his supervisor requesting additional leave because "he was still not feeling well." A second doctor's sought to excuse his continuing absence due to "illness." The pattern continued of more calls to work asking for additional leave because he "was still feeling the same symptoms."
Eventually, To remained absent from work but stopped calling his supervisor as required by US Bank policy. US Bank fired To.
To sued, alleging violation of the FMLA. US Bank moved for summary judgment.
In awarding summary judgment to US Bank, the court found that To had failed to provide adequate notice of his need for FMLA leave.
In the Sixth Circuit, whether an employee provided adequate notice of the need for leave is based on whether the information imparted to the employer is sufficient to reasonably apprise the employer that the need for leave is due to a serious health condition. An employee must explain their need for leave in a way that makes it reasonably plaint that the employee's health condition is serious and that this is why the employee needs to be absent.
By informing his employer that he "was felling ill, tired, lethargic, fatigue-ish... and that he needed a few days to recuperate," To failed to reasonably apprise US Bank that his need for leave was due to an FMLA-covered serious health condition. As additional evidence of To's failure to provide adequate notice, the Court also cited the doctor's slips, which simply referenced "illness" as the reason he needed to be absent from work.
The Court also found that US Bank had the right to terminate To for violating company policy requiring him to notify his supervisor, not someone else, of his need for leave. Under US Bank policy, an employee who is absent for two consecutive work days and who fails to report those absences to their immediate supervisor is considered to have abandoned their job. That, the Court found, is what happened in this case.
Absent unusual circumstances, the FMLA allows an employer to enforce their usual and customary leave policies and procedures. 29 CFR 825.302(d). The Court found not "unusual circumstances" that prevented To from complying with US Bank's direct reporting requirement.
Mr. Bosland Comments: To perfect the right to job-protected FMLA leave, employees do not have to invoke the FMLA by name (although they may). Employee's must, however, articulate facts that arguably fit one or more FMLA-covered serious health conditions. Claiming that you are "ill," or "sick," or "fatigued" simply fails that test. Courts have uniformly held that such generic language fails to reasonably alert the employer that the need for leave is due to a "serious" health condition that might be FMLA-qualifying.
Even if To had provided adequate notice of the need for leave, US Bank would have been within its right to deny FMLA leave coverage and terminate him for violating the company's leave reporting policies and procedures. To perfect the right to FMLA leave, employees must provide adequate notice of the need for leave, and abide by their company's leave reporting policies. An employee might be excused both from providing adequate notice and complying with the employer's leave reporting policies if they were unable to do so. That was not the case with To.
To v. US Bancorp, No. 08-5979 (JRT/JJK), (D. Minn. Sept. 7, 2010)
http://www.leagle.com/unsecure/page.htm?shortname=infdco20100907a83
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Why lay people are sometimes confused by administrative law
Why lay people are sometimes confused by administrative law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
Heck, why lawyers are sometimes confused by administrative law. The following is from Byrum v. Office of Personnel Management, No. 2009-3264 (Fed. Cir. Sept. 9, 2010) (available here), slip op. at 2:
"Those uninitiated in the ways of government might suppose a conclusion regarding whether a daughter was or was not also her mother’s spouse,* even on these scant facts, to be somewhat strange, and might even suppose that a correct conclusion regarding that proposition is sufficiently self-evident not to have required two years of administrative consideration. One might even think there must have been something else at issue. In fact, there was. It falls to us to explain to the Justice Department, the MSPB, and OPM why it is now necessary, after all the administrative proceedings that preceded, for this court to vacate and remand the matter so OPM can start over, addressing the issues Ms. Byrum’s claim actually presented."
Thanks to How Appealing for the pointer.
Edward M. “Ted” McClure
* NYPPL notes that the court described the genesis of this case as follows: "This case involves determining the rightful claimant to certain death benefits attributable to the service of a deceased federal employee. The employee’s spouse, who ordinarily would be entitled to the benefits, has been held civilly responsible for the employee’s death. Ordered in the civil action to assign the benefits to Stephanie Byrum, daughter of the deceased employee and petitioner in this appeal, the employee’s spouse subsequently executed the ordered assignment. Petitioner Byrum made claim to the death benefits." As subsequently noted by the court in its 20 page ruling, "Ms. Byrum is claiming the death benefits at issue based not on Ms. Byrum’s relationship to her mother, but on her status as the court-designated assignee of her mother’s spouse...."
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Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/
Heck, why lawyers are sometimes confused by administrative law. The following is from Byrum v. Office of Personnel Management, No. 2009-3264 (Fed. Cir. Sept. 9, 2010) (available here), slip op. at 2:
"Those uninitiated in the ways of government might suppose a conclusion regarding whether a daughter was or was not also her mother’s spouse,* even on these scant facts, to be somewhat strange, and might even suppose that a correct conclusion regarding that proposition is sufficiently self-evident not to have required two years of administrative consideration. One might even think there must have been something else at issue. In fact, there was. It falls to us to explain to the Justice Department, the MSPB, and OPM why it is now necessary, after all the administrative proceedings that preceded, for this court to vacate and remand the matter so OPM can start over, addressing the issues Ms. Byrum’s claim actually presented."
Thanks to How Appealing for the pointer.
Edward M. “Ted” McClure
* NYPPL notes that the court described the genesis of this case as follows: "This case involves determining the rightful claimant to certain death benefits attributable to the service of a deceased federal employee. The employee’s spouse, who ordinarily would be entitled to the benefits, has been held civilly responsible for the employee’s death. Ordered in the civil action to assign the benefits to Stephanie Byrum, daughter of the deceased employee and petitioner in this appeal, the employee’s spouse subsequently executed the ordered assignment. Petitioner Byrum made claim to the death benefits." As subsequently noted by the court in its 20 page ruling, "Ms. Byrum is claiming the death benefits at issue based not on Ms. Byrum’s relationship to her mother, but on her status as the court-designated assignee of her mother’s spouse...."
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Through investigation of allegations of misconduct prior to initiating disciplinary action critical
Through investigation of allegations of misconduct prior to initiating disciplinary action critical
Michaelis v State, New York State Supreme Court, [Not selected for publication in the Official Reports, affd., 258 A.D.2d 693]
The Michaelis case illustrates the importance of an employer thoroughly investigating allegations before serving disciplinary charges against an employee.
A jury awarded back salary and damages to Kenneth Michaelis for “emotional suffering” because it decided that the employer had not “thoroughly investigated” before disciplining him.
Michaelis was one of two white deputy superintendents employed at a New York State Department of Corrections facility who were demoted for allegedly subjecting an African-American deputy superintendent to “ridicule or racially insensitive comments.”
Michaelis was charged with placing a “jail bird” figure on the door of an African-American co-worker Frank Irvin. Irvin viewed Michaelis’ action “racist” and submitted a complaint to the Department.
The Appellate Division had allowed Michaelis’ lawsuit against the New York State Department of Correctional Services to heard by a jury when it sustained a lower court’s refusal to dismiss his complaint [see 244 A.D.2d 636]. Michaelis’ suit alleged that the Department had imposed a more severe disciplinary penalty on him than it had on others who committed similar acts or omissions.
Michaels contended this harsher treatment was because of his race, and that this violated the State’s Human Rights Law. He maintained that he had been subjected to “reverse discrimination” when he was disciplined because of what he contended was “harmless prank.”
The jury decided that Michaelis had been disciplined by the Department without it first having “thoroughly investigated allegations of racism” directed against him. The award: $238,000 as back wages plus $90,000 for “emotional suffering” was sustained by the Appellate Division.
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If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Michaelis v State, New York State Supreme Court, [Not selected for publication in the Official Reports, affd., 258 A.D.2d 693]
The Michaelis case illustrates the importance of an employer thoroughly investigating allegations before serving disciplinary charges against an employee.
A jury awarded back salary and damages to Kenneth Michaelis for “emotional suffering” because it decided that the employer had not “thoroughly investigated” before disciplining him.
Michaelis was one of two white deputy superintendents employed at a New York State Department of Corrections facility who were demoted for allegedly subjecting an African-American deputy superintendent to “ridicule or racially insensitive comments.”
Michaelis was charged with placing a “jail bird” figure on the door of an African-American co-worker Frank Irvin. Irvin viewed Michaelis’ action “racist” and submitted a complaint to the Department.
The Appellate Division had allowed Michaelis’ lawsuit against the New York State Department of Correctional Services to heard by a jury when it sustained a lower court’s refusal to dismiss his complaint [see 244 A.D.2d 636]. Michaelis’ suit alleged that the Department had imposed a more severe disciplinary penalty on him than it had on others who committed similar acts or omissions.
Michaels contended this harsher treatment was because of his race, and that this violated the State’s Human Rights Law. He maintained that he had been subjected to “reverse discrimination” when he was disciplined because of what he contended was “harmless prank.”
The jury decided that Michaelis had been disciplined by the Department without it first having “thoroughly investigated allegations of racism” directed against him. The award: $238,000 as back wages plus $90,000 for “emotional suffering” was sustained by the Appellate Division.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
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Retiree health insurance benefits
Retiree health insurance benefits
Aeneas McDonald PBA v City of Geneva, App. Div., 245 A.D.2d 1042, Affirmed, 92 N.Y.2d 326
The elimination or modification of a public retiree’s health insurance coverage by a former employer has been the subject of a number of recent litigations. The latest rulings suggest that the resolution of the issue will turn on whether or not the retirees have a contractual right to such benefits.
For instance, in the Della Rocco v. City of Schenectady and Andriano v. City of Schenectady cases, decided August 28, 1997, New York State Supreme Court Justice Robert E. Lynch wrote that City of Schenectady police and fire department retirees were entitled to fully paid health insurance comparable to that in effect at the time of each retiree’s retirement because the benefits had been negotiated and set out in a Taylor Law agreement. Justice Lynch ruled that it was not relevant that the particular Taylor Law agreement under which the individual retired was no longer operative.
The Appellate Division recently applied the same reasoning in a suit filed by the Aeneas McDonald Police Benevolent Association, Inc., whose members include all current and retired members of the Geneva Police Department. The PBA sued to annul the City’s decision to unilaterally change the health insurance plan it provided for its retired police officers.
In a split decision, the Appellate Division ruled that the City of Geneva could change the health insurance it provided its retired police officers because the retirees’ health insurance coverage benefits were not protected by the terms of a collective bargaining agreement, either currently operative or expired.
The background: In 1972 the City adopted a resolution, Resolution 33, providing for the payment of health insurance benefits to retired City employees. The City simultaneously discontinued its membership in the State’s Employees’ Health Plan, electing to provide coverage through the Genesee Valley Medical Health Care Plan. Later the City replaced the Genesee Plan with the Blue Million Health Plan.
The City told its retirees that they would be covered by the Blue Million Health Plan until December 31, 1996, and that effective January 1, 1997 their coverage would be changed to the Blue Choice Extended Plan. The union sued. What proved to be critical in determining the rights of Geneva’s retired police officers was the fact that the City’s retirees’ benefits were being provided pursuant to a resolution adopted by the City rather than under the terms of a collective bargaining agreement.
Although New York State Supreme Court Justice Harvey held that Geneva’s decision to change the health insurance benefits of retirees violated the parties’ past practice of providing a certain level of benefits to retirees, the Appellate Division ruled that this was incorrect.
The Appellate Division pointed out that none of the previous collective bargaining agreements between the City and the bargaining units that represent active police officers addressed the issue of health insurance benefits for retired police officers. Consequently, said the Court, the union’s retired members “are not now nor have they at any time in the past been beneficiaries of a negotiated labor agreement that provides health insurance benefits during the period of their retirement.”
In contrast to the situation in the Schenectady case, the Court concluded in the Geneva case that (1) the retired union members never had any contractual rights with respect to health insurance benefits during retirement and (2) Resolution No. 33 did not give the retirees any vested rights to any particular health insurance benefits during retirement. In other words, unless the provision is deemed a “contractual” obligation, a legislative body may amend, or repeal, a law, rule, regulation, ordinance or resolution changing health insurance benefits for retirees. In addition, the Appellate Division said that the City was not required to negotiate its unilateral change in the health insurance benefits it provided its retirees and dismissed the union’s petition.
What about the State Constitution’s prohibition against “diminishing or impairing” a retirement benefit? The simple answer is that health insurance benefits are not “retirement benefits” within the meaning of the State’s Constitution. Unless there is some “contractual right” to health insurance benefits in retirement, the employer may unilaterally change the plan, contribution rates or other elements of a retiree’s health insurance.
The leading case involving this issue is Lippman v Sewanhaka Central High School District, 66 NY2d 313. The Court of Appeals said that a school board could change the rates of its employer contributions for retiree health insurance premiums that had been adopted pursuant to an earlier school board resolution where “the retirees had no contractual right” to the continuation of those contributions.
Those involved in the public schools or BOCES should note that school retirees have special rights. Under temporary legislation, state law requires school districts and BOCES to provide their respective retirees with the same health insurance benefits that they provide for their active employees [Chapter 80 of the Laws of 1997 extended Chapter 729 of the Laws of 1994 for one additional year]. Retirees of other municipal employers are seeking similar legislative protection against changes in their health insurance coverage by their former employers.
The text of the decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/retiree-health-insurance-benefits.html
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Aeneas McDonald PBA v City of Geneva, App. Div., 245 A.D.2d 1042, Affirmed, 92 N.Y.2d 326
The elimination or modification of a public retiree’s health insurance coverage by a former employer has been the subject of a number of recent litigations. The latest rulings suggest that the resolution of the issue will turn on whether or not the retirees have a contractual right to such benefits.
For instance, in the Della Rocco v. City of Schenectady and Andriano v. City of Schenectady cases, decided August 28, 1997, New York State Supreme Court Justice Robert E. Lynch wrote that City of Schenectady police and fire department retirees were entitled to fully paid health insurance comparable to that in effect at the time of each retiree’s retirement because the benefits had been negotiated and set out in a Taylor Law agreement. Justice Lynch ruled that it was not relevant that the particular Taylor Law agreement under which the individual retired was no longer operative.
The Appellate Division recently applied the same reasoning in a suit filed by the Aeneas McDonald Police Benevolent Association, Inc., whose members include all current and retired members of the Geneva Police Department. The PBA sued to annul the City’s decision to unilaterally change the health insurance plan it provided for its retired police officers.
In a split decision, the Appellate Division ruled that the City of Geneva could change the health insurance it provided its retired police officers because the retirees’ health insurance coverage benefits were not protected by the terms of a collective bargaining agreement, either currently operative or expired.
The background: In 1972 the City adopted a resolution, Resolution 33, providing for the payment of health insurance benefits to retired City employees. The City simultaneously discontinued its membership in the State’s Employees’ Health Plan, electing to provide coverage through the Genesee Valley Medical Health Care Plan. Later the City replaced the Genesee Plan with the Blue Million Health Plan.
The City told its retirees that they would be covered by the Blue Million Health Plan until December 31, 1996, and that effective January 1, 1997 their coverage would be changed to the Blue Choice Extended Plan. The union sued. What proved to be critical in determining the rights of Geneva’s retired police officers was the fact that the City’s retirees’ benefits were being provided pursuant to a resolution adopted by the City rather than under the terms of a collective bargaining agreement.
Although New York State Supreme Court Justice Harvey held that Geneva’s decision to change the health insurance benefits of retirees violated the parties’ past practice of providing a certain level of benefits to retirees, the Appellate Division ruled that this was incorrect.
The Appellate Division pointed out that none of the previous collective bargaining agreements between the City and the bargaining units that represent active police officers addressed the issue of health insurance benefits for retired police officers. Consequently, said the Court, the union’s retired members “are not now nor have they at any time in the past been beneficiaries of a negotiated labor agreement that provides health insurance benefits during the period of their retirement.”
In contrast to the situation in the Schenectady case, the Court concluded in the Geneva case that (1) the retired union members never had any contractual rights with respect to health insurance benefits during retirement and (2) Resolution No. 33 did not give the retirees any vested rights to any particular health insurance benefits during retirement. In other words, unless the provision is deemed a “contractual” obligation, a legislative body may amend, or repeal, a law, rule, regulation, ordinance or resolution changing health insurance benefits for retirees. In addition, the Appellate Division said that the City was not required to negotiate its unilateral change in the health insurance benefits it provided its retirees and dismissed the union’s petition.
What about the State Constitution’s prohibition against “diminishing or impairing” a retirement benefit? The simple answer is that health insurance benefits are not “retirement benefits” within the meaning of the State’s Constitution. Unless there is some “contractual right” to health insurance benefits in retirement, the employer may unilaterally change the plan, contribution rates or other elements of a retiree’s health insurance.
The leading case involving this issue is Lippman v Sewanhaka Central High School District, 66 NY2d 313. The Court of Appeals said that a school board could change the rates of its employer contributions for retiree health insurance premiums that had been adopted pursuant to an earlier school board resolution where “the retirees had no contractual right” to the continuation of those contributions.
Those involved in the public schools or BOCES should note that school retirees have special rights. Under temporary legislation, state law requires school districts and BOCES to provide their respective retirees with the same health insurance benefits that they provide for their active employees [Chapter 80 of the Laws of 1997 extended Chapter 729 of the Laws of 1994 for one additional year]. Retirees of other municipal employers are seeking similar legislative protection against changes in their health insurance coverage by their former employers.
The text of the decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/10/retiree-health-insurance-benefits.html
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Retaliating against employees for political activity
Retaliating against employees for political activity
Richardson v Saratoga Springs, App Div, 246 A.D.2d 900
Scott Richardson, one of two “city electricians” employed by the Saratoga Springs Department of Public Works, supported his brother-in-law in a political race against the City’s incumbent Commissioner of Public Works. After the incumbent won, Richardson sued, alleging that the City had retaliated against him for his political activities by:
1. Transferring some of his duties to a co-worker, Vincent Arpey; and
2. Discontinuing his de facto status as supervisor of the entire electrical crew.
He cited Section 107 of the Civil Service Law, which provides, in pertinent part, that political opinions or affiliations may not be a consideration in the “appointment or selection to or removal from an office or employment” (or in the discharge or promotion or reduction, or in any manner change in the official rank or compensation) of an individual whose position is subject to the Civil Service Law.”
The Appellate Division agreed, holding a jury trial was needed to determine whether Saratoga Springs violated this section of the law when it made a personnel decision that was “affected or influenced by” an employee’s political opinion or affiliation. “[A] reasonable factfinder could conclude that [Richardson] was discriminated against because of his political activities outside of working hours.”
The Court said discrimination could explain why Richardson’s was denied “a promotion and concomitant salary increase -- ‘for constitutionally impermissible reasons,’ namely, because of his off-duty political activities.” The fact that an independent consultant actually recommended the reclassification was, according to the ruling, of little significance “where, as here, it can be inferred that those actions were the direct consequence of the changes in the electricians’ work duties “affected or influenced by” the Commissioner.”
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Richardson v Saratoga Springs, App Div, 246 A.D.2d 900
Scott Richardson, one of two “city electricians” employed by the Saratoga Springs Department of Public Works, supported his brother-in-law in a political race against the City’s incumbent Commissioner of Public Works. After the incumbent won, Richardson sued, alleging that the City had retaliated against him for his political activities by:
1. Transferring some of his duties to a co-worker, Vincent Arpey; and
2. Discontinuing his de facto status as supervisor of the entire electrical crew.
He cited Section 107 of the Civil Service Law, which provides, in pertinent part, that political opinions or affiliations may not be a consideration in the “appointment or selection to or removal from an office or employment” (or in the discharge or promotion or reduction, or in any manner change in the official rank or compensation) of an individual whose position is subject to the Civil Service Law.”
The Appellate Division agreed, holding a jury trial was needed to determine whether Saratoga Springs violated this section of the law when it made a personnel decision that was “affected or influenced by” an employee’s political opinion or affiliation. “[A] reasonable factfinder could conclude that [Richardson] was discriminated against because of his political activities outside of working hours.”
The Court said discrimination could explain why Richardson’s was denied “a promotion and concomitant salary increase -- ‘for constitutionally impermissible reasons,’ namely, because of his off-duty political activities.” The fact that an independent consultant actually recommended the reclassification was, according to the ruling, of little significance “where, as here, it can be inferred that those actions were the direct consequence of the changes in the electricians’ work duties “affected or influenced by” the Commissioner.”
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NYPPL Publisher Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
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