Payment for vacation credits upon resignation

Payment for vacation credits upon resignation
Karp v North Country Community College, 258 AD2d 775

After 15 years of service, Robert Karp resigned from his position with the North Country Community College in 1997. When the college refused to pay him for accrued vacation credits he claimed he accrued between 1982 and 1985, he sued.

Although Karp admitted that the college lacked express authority to pay him for his unused vacation time, he nevertheless claimed that he was entitled to such payments because the college had paid other employees for unused vacation time in the past. Karp argued that this meant that the college was obligated to pay him for such credits as well.

Karp claimed that in 1986 two employees received compensation for their unused vacation time when they resigned. He also referred to a 1986 memorandum written by respondent’s then-Dean of Administration recognizing that the school’s policy respecting unused vacation time needed clarification and that, in the interim, respondent would honor its past practice for vacation time accrued up until August 31, 1985.

Supreme Court said that if not expressly authorized by statute, local law, resolution or pursuant to a contract term, a public employee may not be paid for unused vacation time, citing General Municipal Law Section 92. The court noted that payments made without such authority are deemed public gifts, prohibited by Article VIII, Section 1 of the New York State Constitution.

The Appellate Division agreed, commenting that “the mere fact that [the college] despite lacking authority to do so, may have on prior occasions compensated employees for unused vacation time does not validate [Karp’s] claim. Express authorization being required, prior conduct cannot satisfy the express statutory authorization needed to form a basis for recovery against a public body.”

Also noted was the fact that in 1986 the college advised Karp that he should develop a plan to use any remaining vacation time during that academic year.
NYPPL

Educator terminated before the end of the probationary period

Educator terminated before the end of the probationary period
Strax v Rockland County BOCES, 257 AD2d 578

The Rockland County Board of Cooperative Educational Services dismissed Carol Strax, a probationary administrative assistant, from her position. Strax sued, seeking a court order reinstating her to the position.

The Appellate Division rejected her appeal, commenting that “it is well established that a board of education has an unfettered right to terminate the employment of a teacher or administrator during his or her probationary period, without a hearing, unless that person establishes that his or her employment was terminated for a constitutionally impermissible purpose or in violation of a statutory proscription.”

According to the ruling, Strax did not allege that the BOCES had terminated her probationary employment for a constitutionally impermissible reason nor did she demonstrate that it failed to comply with the procedural requirements of Education Law Section 3031 or otherwise acted in violation of a statutory proscription.

Accordingly, the Appellate Division ruled that under the circumstances the Supreme Court properly ruled that Strax’s termination was neither arbitrary nor capricious.
NYPPL

Employee terminated after refusing to work overtime

Employee terminated after refusing to work overtime
Mack v Comm. of Labor, 257 AD2d 828

One of the requirements of toll collector Tijuana R. Mack’s employment was that she occasionally was needed to work overtime before or after her regular shift. However, she declined to accept a number of overtime assignments and was given a number of written warnings.

After she once again refused to accept an overtime assignment, she was discharged. When she applied for unemployment insurance, her claim was rejected on the grounds that her refusing the overtime assignment constituted disqualifying misconduct.

The Appellate Division affirmed the Unemployment Insurance Appeals Board’s determination, holding that “an employee’s refusal to accept reasonable overtime work assignments when he or she has agreed to do so at the time of hiring can constitute disqualifying misconduct” for the purposes of qualifying for unemployment insurance benefits.
NYPPL

Unemployment insurance benefit adjusted to reflect retirement allowance

Unemployment insurance benefit adjusted to reflect retirement allowance
Licciardello v Comm. of Labor, 255 AD2d 850

Marie Licciardello left her teaching position with the City of New York. She later began to receive payments from her pension fund at the rate of $250 per week. In addition, Licciardello was receiving unemployment insurance benefits at the rate of $300 per week.

However, Section 600.7 of the Labor Law provides that an unemployment insurance claimant’s benefit rate is to be reduced in cases where the employer has contributed to the employee’s pension fund.

The Unemployment Insurance Appeal Board held that Licciardello’s unemployment benefit rate was subject to reductions by the amount of 50% of her pension payments, reflecting her employer’s contribution of over 50% of the funding of her pension plan. In addition, the board said that Licciardello was liable for, and had to repay, $3,250 for the overpayment of benefits.

The board determined that the actuarial value of Licciardello’s pension was $138,000 and that her contributions were $33,000, about a quarter of the actuarial value of the pension.

The Appellate Division said that this constituted substantial evidence supporting the board’s ruling that “her employer contributed over half of the actuarial value of [Licciardello’s] pension, thereby triggering the statutory reduction in benefits imposed by the Board.”
NYPPL

Determining if a demand for arbitration was timely filed

Determining if a demand for arbitration was timely filed
Matter of Town of N. Hempstead v Civil Serv. Employees Assn., Inc., 2010 NY Slip Op 08121, decided on November 9, 2010, Appellate Division, Second Department

Two days after the Town of North Hempstead terminated the employment of an employee CSEA advised the Town that it intended to proceed to arbitration. Two months after the employee’s date of dismissal CSEA submitted a demand for arbitration to the American Arbitration Association [AAA] challenging the employee’s dismissal.

North Hampstead filed an Article 75 petition to stay the arbitration contending that under the parties' collective bargaining agreement as well as a subsequent stipulation entered into between the parties, the demand for arbitration to the AAA had to be made within 10 days after the termination of the employee's employment.* The Town’s theory: CSEA’s demand for arbitration was untimely and it was thus entitled to a permanent stay of arbitration.

Although Supreme Court granted the Town’s petition, holding that "[t]here is no precedent for finding that notice to the [Town] of an intent to arbitrate also constitutes timely notice to the AAA as required by the [2008 stipulation],” the Appellate Division reversed the lower court’s decision.

In this instance, said the court, the relevant provisions state that "[w]ithin ten (10) days after . . . discharge . . . only the Union may proceed to Disciplinary Arbitration by written notification to . . . the Town Attorney, and in accordance with the rules and requirements of the AAA as they relate to Labor Arbitration."** This language, said the Appellate Division, “does not require that a demand for arbitration be made to the AAA within that 10-day period.” It simply requires that the Town be notified of the union’s intent within such period.

The court explained that the Stipulation, requiring that a demand for arbitration be made to the AAA within 10 days, refers only to those situations where there has been a Step 1 disciplinary procedure. Here there was “no such Step 1 procedure” making the 10-day rule for making a demand for arbitration to the AAA inapplicable.

Finally, said the court, “to the extent that the subject language governing the time to demand arbitration may be ambiguous, it should be resolved in favor of the employee's right to proceed to arbitration.”

* The Appellate Division noted that the Stipulation specifically provides that the Agreement's time "deadlines . . . are conditions precedent to arbitration." Rejecting CSEA argument that the issue of whether its demand for arbitration was timely made to AAA was for the arbitrator to determine, the court, citing Matter of All Metro Health Care Serv., Inc. v Edwards, 57 AD3d 892, ruled that a court, rather than an arbitrator, was to decide the matter.

** AAA rules do not impose any time limits for filing a demand for arbitration

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08121.htm
NYPP:

Hearsay evidence may be the basis for an administrative disciplinary determination

Hearsay evidence may be the basis for an administrative disciplinary determination
Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 07932, Decided on November 3, 2010, Appellate Division, Second Department

Thomas Hughes, an Office of Court Administration [OCA] court officer, was served with disciplinary charges alleging, among other offenses, failing to keep his uniform in proper condition, failing to keep his weapon properly loaded, and keeping an impermissible metal-jacketed round in his weapon.

The disciplinary hearing officer found that Hughes was guilty of “engaging in acts of misconduct and incompetency prejudicial to the good order and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court office.” OCA accepted the hearing officer’s recommendation that Hughes be dismissed from his position.

Hughes filed a petition pursuant to CPLR Article 78 seeking a court order vacating OCA’s decision to terminate him.

The Appellate Division dismissed Hughes petition noting that “appellate review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.” In this instance, said the court, the hearing officer’s findings were supported by substantial evidence.*

Addressing another issue concerning the evidence presented in the course of the disciplinary hearing, the Appellate Division commented that “Hearsay evidence may be the basis for an administrative determination,” citing Gray v Adduci, 73 NY2d 741.

As to the penalty imposed, dismissal, the court said that “termination of employment was not so disproportionate to the misconduct as to shock the conscience.”

* Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07932.htm
NYPPL

Termination during probation

Termination during probation
Rigney v Nassau Co. CSC, NYS Supreme Court, [Not selected for publication in the Official Reports]

The Rigney decision illustrates that individuals who complain that their employer acted in bad faith in terminating them prior to the end of their probationary periods must demonstrate that their probationary performance was otherwise satisfactory in order to prevail.

Rigney, a former Nassau County probationary police officer, complained that her supervisor, Sergeant Daniel P. Flanagan, arbitrarily decided that she would not successfully complete her training at the Police Academy. According to her complaint, Sergeant Flanagan told Rigney “that the decision was already made and that it was only a matter of time before she was terminated.”

Ultimately the Academy’s Deputy Inspector, George Gudmundsen, recommended that Rigney be terminated because she had not maintained a 75 percent average, which constituted “unsatisfactory performance during her probationary period including a failure to satisfy the minimum academic criteria” The report also said that Rigney “repeatedly argues with Academy staff members”; “failed simulations training”; and “repeatedly failed to address Academy staff members in [the] prescribed manner.”

Rigney sued, seeking a court order annulling her dismissal. She contended that her termination was made in bad faith because “Sergeant Flanagan arbitrarily determined that she would be terminated notwithstanding [her attaining] a passing (i.e., 75 percent or higher average) grade.”

State Supreme Court Justice McCaffrey pointed out that a probationary employee, unlike a tenured public employee, has no property rights in the position and can be discharged without a hearing and without a stated specific reason, provided that: (1) the employee has completed the minimum but not yet served the maximum period of probation, (2) the discharge is in good faith, and (3) the action is not in violation of constitutional, statutory, or decisional law. [See McKee v. Jackson, 152 AD2d 547].

Justice McCaffrey dismissed Rigney’s petition, commenting that even assuming that Nassau County had predetermined that Rigney was to be terminated irrespective of her final grade, her unilateral failure to acquire the minimum passing average (75 percent) provided an independent lawful predicate for terminating her employment.

Significantly, the employee has the burden of proof in actions challenging his or her dismissal during the probationary period. As the Appellate Division recently stated in dismissing an appeal filed by a former probationer at the Town of Brookhaven, the employee has a burden to present “legal and competent evidence to show a deprivation of his rights, bad faith, or other arbitrary action constituting an abuse of discretion” by the employer [Iannuzzi v Town of Brookhaven, 258 AD2d 651].

In Iannuzzi’s case, the Appellate Division said that Iannuzzi’s termination “was based upon his unsatisfactory performance and was not arbitrary and capricious, but had a rational basis and was carried out in good faith.”
NYPPL

A public employer may discipline an employee for refusing to support employer’s change in its operation

A public employer may discipline an employee for refusing to support employer’s change in its operation
Lewis v Cowen,165 F.3d 154

J. Blaine Lewis, head of Connecticut’s lottery, was fired for refusing to publicly support a change in the lottery’s operations. Lewis was an unclassified employee and served at the pleasure of the Executive Director of the Connecticut Division of Special Revenue and the Gaming Policy Board.

Lewis had national prominence in the public gaming community. He served as President of the National Association of State and Provincial Lotteries, an association of public gaming executives in the United States and Canada, and had been featured on the cover of Public Gaming International, a trade magazine.

Problems began in 1988, when the state awarded a contract to install a statewide computer system for the sale of lottery tickets to General Instrument Corporation (GIC). Lewis opposed this move. After GIC’s system malfunctioned and created a system-wide breakdown of on-line sales, Lewis criticized GIC to the press. The board ordered him and other unit heads to stop all media contact, but this gag order was eventually lifted.

Another change Lewis opposed was increasing the pool of numbers from which the winning Lotto numbers were picked was from 40 to 44. Lewis believed that revenues would decrease and suspected that GIC had recommended the change merely to cover up problems with on-line ticketing.

His superior, the Executive Director, ordered him to present the change to the Board at a public meeting and to cite “all positives and no negatives.” Lewis balked and was fired by the board one day after it unanimously approved the change.

Lewis sued, contending that his termination constituted a violation of his First Amendment rights. He won a substantial jury verdict in U.S. District Court -- $2 million in compensatory damages and punitive damages plus $380,000 in attorney’s fees.

On appeal, the Second Circuit U.S. Court of Appeals reversed. While “it is by now well established that public employees do not check all of their First Amendment rights at the door upon accepting public employment,” the court said that Lewis’ case involves a different issue: may a public employer discipline an employee for refusing to speak?

Connecticut argued that it was entitled to terminate Lewis pursuant to the standard announced in cases such as Connick v. Myers, 461 U.S. 138 (1983), and Pickering v. Board of Education, 391 U.S. 563 (1968), and in the alternative, that its decision to terminate Lewis is shielded by a qualified immunity. The Circuit Court applied the so-called Pickering balancing test typically used in considering free-speech cases involving public employees in resolving the issue.

The Pickering test has two elements. The court must first decide whether the speech addresses a matter of public concern. If so, the court then must balance the interests of the employer in providing “effective and efficient” public services against the employee’s First Amendment right to free expression. The court addressed two key questions:

1. Did Lewis’s refusal to speak to the Board touch on a matter of public concern?; and

2. Did the potential disruptiveness of Lewis’s refusal to speak outweigh his First Amendment-based interest in not speaking?

Reviewing the evidence, the circuit panel concluded that as a matter of law Connecticut’s interest in the effective and efficient operation of its Lottery Division outweighed Lewis’s First Amendment interest in refusing to present the proposed Lotto change before the Board in a positive manner.

State officials testified that Lewis’s speech would “potentially interfere” with the Division’s operations and that his refusal to promote the proposed change would result in negative publicity and decreased morale, in turn impairing the profitability of the lottery. Concluding that under the circumstances Lewis’s termination was justified, the Court ruled that:

1. The lower court should have dismissed the action on the ground of qualified immunity.

2. The state defendants are immune from liability on Lewis’s state law wrongful discharge claim.

The decision also considered “the exceptional significance of a government employee’s interest in testifying truthfully before a legislative committee,” referring to Piesco v City of New York, 933 F.2d 1149,. In Piesco, the Second Circuit “refused to force employees like Dr. Piesco to choose between answering questions honestly and risk being fired on one hand, and committing perjury on the other” holding that there was no evidence that Dr. Piesco’s testimony interfered with government operations in a manner outweighing Dr. Piesco’s strong interest in testifying truthfully.

In contrast, the court said although Lewis had a strong First Amendment interest in testifying truthfully before the Board, it “did not believe that interest to have been implicated here because Lewis was directed to present the Division’s views, not his own.”

NYPPL

Employee has the burden of showing the abolishment of his or her position was not made in good faith

Employee has the burden of showing the abolishment of his or her position was not made in good faith
Belvey v Tioga County, 257 AD2d 967

In January 1998 the Tioga County legislature abolished its position of Director of Data Processing and, implementing recommendations by both a private consultant and the Governor’s Task Force on Information Resource Management regarding future data processing needs for the county, created a new position -- Director, Division of Information Technology and Communication Services.

Richard J. Belvey, the then Director of Data Processing was terminated when that position was abolished. Efforts to find Belvey alternative employment with the County were unsuccessful. He sued, seeking reinstatement to either his former position or the new position or appointment to a similar one within Tioga County’s public service.

Belvey alleged that characterizing the abolition of his position as being undertaken for the purpose of economy or efficiency was a “subterfuge to avoid the statutory protection afforded to civil servants [by Civil Service Law Section 75].”

The Appellate Division disagreed, and dismissed his appeal. The court noted that the record demonstrated that the county had undertaken a needed expansion of its computer operations and required an individual “with qualifications far greater than that previously required.”

The decision also stated that the new position was in the noncompetitive class and required either a master’s degree in computer science and three years of experience or a bachelor’s degree and five years of experience. Presumably Belvey could not meet either of these requirements of training and experience.

The Appellate Division held that the county met its burden of showing that the former director of data processing position was abolished for economic or efficiency reasons. Accordingly, the burden shifted to Belvey to demonstrate that the county did not act in good faith or that his termination was based upon his job performance.

Belvey, said the court, failed to show that there the county’s decision was arbitrary or capricious by demonstrating that there were no bona fide reasons for the elimination of his position or that someone was hired to replace him as Director of Data Processing. Thus Belvey did not demonstrate that the protections afforded by Civil Service Law Section 75 were triggered when his position was abolished and he was laid off [Section 80 of the Civil Service Law].

============================================
If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/ ============================================
NYPPL

Retirement benefits based on only an employee’s regular salary and termination pay or other compensation paid in anticipation of retirement excluded

Retirement benefits based on only an employee’s regular salary and termination pay or other compensation paid in anticipation of retirement excluded
Davies v NYS LPFRS, 259 AD2d 912, motion for leave to appeal denied, 93 NY2d 810

A Taylor Law contract negotiated by the City of Corning and its police officers allowed unit members to elect to participate in a “senior officer” program. This program permitted police officers electing to participate to give up 20 percent of their accumulated sick leave credits in exchange for a salary increase equal to 30 percent of the value of his or her remaining sick leave accruals. This increased hourly rate applied to a participant’s base salaries, overtime credits and holiday pay.

The Local Police and Fireman Retirement System [LPFRS] subsequently advised retired participants of the “senior officer” program that the increase in their base salaries resulting from their participation in the program should not have been included in determining their “final average salary” for purposes of calculating their retirement allowance.

As a result, the retirement allowances of such retired officers were recalculated and reduced. LPFRS than made arrangements to recoup the overpayments that it had made to such retirees. Terrance Davies appealed this ruling by LPFRS to the Comptroller seeking reinstatement of their initial retirement benefit.

The Comptroller denied their appeal, concluding that Corning’s senior officer program “was nothing more than an attempt to circumvent the prohibition contained in Retirement and Social Security Law Section 431.” Section 431, said the Comptroller, prohibits the Retirement System from using accumulated sick leave credits in calculating an applicant’s final average salary.

Unhappy with this ruling, Davies, together with other retirees affected by the Comptroller’s decision filed an Article 78 [Article 78, Civil Practice Law and Rules] seeking reversal of the Comptroller’s determination and an order reinstating their former level of retirement benefits.

The Appellate Division commenced its analysis of Davies’ appeal by commenting that “it is well settled that the Comptroller is vested with exclusive authority to determine applications for retirement benefits and such determination, if supported by substantial evidence, must be upheld. Based upon its review of the record as a whole, the panel said that “we cannot say that such determination is not supported by substantial evidence.”

The decision noted that in Tooley v McCall, 676 NY2d 259 the Appellate Division ruled that, “retirement benefits are to be computed on the basis of an employee’s regular salary and not on any kind of termination pay or other form of additional compensation paid in anticipation of retirement.”

The court rejected Davies’ argument that the “senior officer” program did not violate Section 431 because the participants had not received a lump-sum payment of accumulated sick leave credits.

The Appellate Division said that such an argument “misses the mark.” In determining what constitutes termination pay or compensation paid in anticipation of retirement, the panel said that it “must look to the substance of the transaction and not to what the parties may label it.” Concluding, as did the Comptroller, that the senior officer program was designed to circumvent the provisions of Retirement and Social Security Law Section 431, the Appellate Division dismissed the appeal.

The clear lesson here is that courts will not allow parties to obtain a benefit otherwise prohibited by law by including the benefit in a collective bargaining agreement negotiated pursuant to the Taylor Law.

One issued not addressed in the opinion was whether the election to participate in the “senior officer” program had an adverse impact on the benefits otherwise available to participants as a result of the Comptroller’s determination and, if so, what remedy, if any, the retired police officers had available to them.
NYPPL

Settlement of disciplinary arbitration must be in writing to be enforced by a court

Settlement of disciplinary arbitration must be in writing to be enforced by a court
Marpe v Dometsch, 256 AD2d 914

Sometimes the parties to a grievance or disciplinary proceeding agree to “settle” the matter. The terms of the settlement may be read into the record at an administrative hearing or before an arbitrator or the parties may simply “sign an agreement of settlement.” The Marpe case shows that the settlement of a pending lawsuit must follow a more formal procedure.

Terri L. Marpe sued Paul Dometsch and Capital Area Community Health Plan Inc. [CHP], alleging that sexual harassment and negligence arising out of psychiatric treatment provided by her supervisor, Paul Dometsch. During a pretrial deposition with her attorney, Marpe and CHP entered into an on-the-record oral stipulation of settlement providing that Marpe would execute a written release and confidentiality agreement in exchange for CHP’s agreement to pay her a specified sum of money. CHP forwarded the proposed settlement papers to Marpe but she refused to sign them. When a State Supreme Court justice denied CHP’s motion to enforce the stipulation of settlement, it appealed.

The Appellate Division affirmed the lower court’s determination, commenting that “a stipulation of settlement is not enforceable unless it is made in open court, reduced to a court order and entered, or contained in a writing subscribed by the parties or their attorneys.” Since the stenographic record created at the deposition was made outside the presence of a judge, the Appellate Division ruled that it was insufficient to satisfy the requirements of Section 2104 of the Civil Practice Law and Rules.
NYPPL

Educator’s assignments must be consistent with tenure area of the position in which he or she is employed

Educator’s assignments must be consistent with tenure area of the position in which he or she is employed
Banschback v Middle Country CSD, CEd. 14078
Dowler v Middle Country CSD, CEd 14078

Eileen Banschback and Timothy Dowler, certified physical education teachers, were employed by the Middle Country Central School District as teaching assistants* and assigned to teach adaptive physical education under the general supervision of a certified physical education teacher.

The district conceded that they were to perform “primary instruction duties” related to adaptive physical education such as individualized education plans and preparing lesson plans, teaching students, determining student grades and giving supervision and direction to teacher aides.

Both teaching assistants appealed to the Commissioner of Education, contending that their assignments violated State Education Department guidelines and constituted an assignment outside their teaching assistant tenure area.

The Commissioner set out the following guidelines concerning their assignment:

1. Without a certified teacher present, Banschback and Dowler may teach adaptive physical education and supervise and direct teacher aides assigned to such classes, provided that they do so under the general supervision of such a teacher.

2. The certified teacher must review and approve the lesson plans and progress reports prepared by Banschback and Dowler as “deficient supervision may, as a practical matter, result in teachers being supplanted by teaching assistants, which is not permissible under law.”

* Section 80.33(b)(1) of the Commissioner’s Regulations defines a teaching assistant as a person “appointed by a board of education to provide, under the general supervision of a licensed or certified teacher, direct instructional services to students.”
NYPPL

New York Public Personnel Law readers

New York Public Personnel Law readers
Source: Google/Blogspot Statistical Report

Google/Blogspot reports that during the past six month the "top ten" of NYPPL readers were from the following nations:

Nation………………# of Readers

United States............34.721
Germany………………..1.207
Russia………………………643
France……………………..608
Netherlands……………..477
United Kingdom……….415
South Korea……...………395
Canada…………….……….312
Ukraine………...…………170
Philippines………………..140
NYPPL

Hearsay evidence may be the basis for an administrative disciplinary determination

Hearsay evidence may be the basis for an administrative disciplinary determination
Matter of Hughes v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 07932, Decided on November 3, 2010, Appellate Division, Second Department

Thomas Hughes, an Office of Court Administration [OCA] court officer, was served with disciplinary charges alleging, among other offenses, failing to keep his uniform in proper condition, failing to keep his weapon properly loaded, and keeping an impermissible metal-jacketed round in his weapon.

The disciplinary hearing officer found that Hughes was guilty of “engaging in acts of misconduct and incompetency prejudicial to the good order and efficiency of the New York State Unified Court System and adversely reflecting on his fitness to continue as a court office.” OCA accepted the hearing officer’s recommendation that Hughes be dismissed from his position. Hughes filed a petition pursuant to CPLR Article 78 seeking a court order vacating OCA’s decision to terminate him.

The Appellate Division dismissed Hughes petition noting that “appellate review of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.”

In this instance, said the court, the hearing officer’s findings were supported by substantial evidence.*

Addressing another issue concerning the evidence presented in the course of the disciplinary hearing, the Appellate Division commented that “Hearsay evidence may be the basis for an administrative determination,” citing Gray v Adduci, 73 NY2d 741.

As to the penalty imposed, dismissal, the court said that “termination of employment was not so disproportionate to the misconduct as to shock the conscience.”

* Substantial evidence has been defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact."

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07932.htm
NYPPL

Supervisor’s performing employee’s duties while employee suspended pending a criminal investigation leads to additional disciplinary charges

Supervisor’s performing employee’s duties while employee suspended pending a criminal investigation leads to additional disciplinary charges
Matter of Covert v Schuyler County, 2010 NY Slip Op 07861, Decided on November 4, 2010, Appellate Division, Third Department

Beth E. Covert was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that she had asked a neighbor to lie to law enforcement officials conducting a criminal investigation of Covert.

Covert was suspended from her duties as a probation officer as a result of the criminal investigation and her supervisor assumed responsibility for her pending probation case files. In the course of the supervisors handling Covert’s cases, the supervisor found a number of irregularities and deficiencies relating to Covert’s record keeping and supervision of probationers

These finding resulted in additional §75 charges being filed against Covert. As a result of these additional charges, Covet was also found guilty of incompetence.

Based on the findings of misconduct and incompetence, together with her prior unsatisfactory service and her failure to take responsibility for her acts and omissions, the Schuyler County Administrator terminated Covert’s employment.

When Covert sued seeking to vacate the Administrator’s determination the Appellate Division dismissed her petition stating that it would not disturb the Administrator's determination made following a hearing pursuant to Civil Service Law § 75 as long as it supported by substantial evidence.

As to the charges alleging Covert had asked a neighbor to lie on her behalf, Covert’s supervisor testified that Covert had admitted to him that she had asked the neighbor to lie for her and then declared that "it's not like asking someone to lie for you is against the law." Covert, in contrast, testified that she had neither made such an admission nor asked anyone to lie.

This conflict in testimony, said the Appellate Division, was resolved against Covert by the Administrator and it will not substitute the court’s own credibility determinations for those of the Administrator,

As for the determination of incompetence, the evidence established that despite Covert's position as the designee responsible for transfers, she was unaware of the travel restrictions and written policies governing interstate transfers. Further, her incompetence with respect to the handling of a convicted sex offender on probation was also documented by evidence reflecting her continued failure to require the probationer to complete sex offender therapy.

Further, said the Appellate Division, charges of incompetence relating to Covert’s failure to properly use the computerized systems and failures in record keeping are also supported by substantial evidence.

Finally, the court rejected Covert’s argument that the statute of limitations barred certain of the charges, holding that “given the continuous nature of the incompetence,” such an argument is “unavailing.”

In the light of the findings in the disciplinary action and the fact that a prior letter of reprimand had been placed in Covert’s personnel file,* the Appellate Division said that the penalty of termination “is not so disproportionate to the offense as to be shocking to one's sense of fairness.”

* In Bigelow v Village of Gouverneur, 63 NY2d 470, the Court of Appeals said that such records could be used to determine the penalty to be imposed if (a) the individual is advised that his or her prior disciplinary record would be considered in setting the penalty to be imposed, and (b) the employee is given an opportunity to submit a written response to any adverse material contained in the record or offer “mitigating circumstances.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07861.htm
NYPPLPL