Criticism of employee performance serving pursuant to a contract with a private entity
Brackman v City of New York, Supreme Court, [Not selected for publication in the Official Reports]
If a public employee does not have tenure, he or she may be dismissed at any time, for any reason, or for no reason, provided that the termination does not otherwise constitute an unlawful act on the part of the public employer. At best, such an individual may demand, and receive, a name clearing hearing if there has been publication of the alleged disparaging remarks concerning his or her work performance.
Being successful in clearing one’s name via a name-clearing clearing hearing, however, does not entitle the individual to reinstatement to his or her former position.
The Brackman case involved a novel variation of this type of situation -- the rights of a terminated employee of an independent contractor performing work for a public entity.
The contractor, Data Industries, was to perform certain data processing related services for the City of New York. City officials were extremely critical of the work being done under the contract by Brackman, one of Data Industries’ employees.
City officials complained that Brackman was not performing satisfactorily and did not provided the services the City expected. This criticism resulted in Brackman’s dismissal from the project and from Data Industries.
Brackman sued for damages for the alleged defamation arising in the context of his work as a computer consultant for New York City’s Department of Employment. The court granted the City motion to dismiss Brackman’s petition for two reasons:
1. Brackman had signed a release in exchange for a sum of money when he was terminated by Data Industries covering “all actions, causes of action [and] suits [...] by reason of any matter, cause or thing whatsoever against Data Industries, the City of New York, the Department of Employment and its Management Information System Division;” and
2. The allegedly defamatory remarks are “quintessential expressions of opinion,” which are fully protected by the state and federal constitutions.
Justice Stallman said that all of the statements concerning Brackman’s abilities and his performance on the project use loose, figurative language, and none of the statements are objectively capable of being characterized as true or false.
Citing Williams v Varig Brazilian Airlines, 169 AD2d 434, the court said that “Disparaging remarks concerning a person’s job performance are routinely held to be constitutionally protected opinion.”
Dismissing Brackman’s petition, Justice Stallman said that as an at-will employee in the private sector there was no tort liability for wrongful or abusive discharge.
The lesson gleaned from Brackman is that as an at-will employee -- the private sector equivalent of a provisional or temporary public employee -- Brackman did not even have a right to a name clearing hearing, much less the right to sue the City or it officials for damages after being fired by the Data Industries.
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
Dec 29, 2010
Determining membership in a negotiating unit for the purposes of collective bargaining
Determining membership in a negotiating unit for the purposes of collective bargaining
Rockland County v Federation of Teachers Local 1817, 275 AD2d 413
Clearly the incumbents of positions in the negotiating unit are covered by collective bargaining contracts negotiated pursuant to the Taylor Law.
Is an agreement between the parties to include a particular individual in the negotiating unit if the position filled by that individual is not included in the negotiating unit enforceable?
This was one of the issues considered by the Appellate Division when Rockland County attempted to obtain a stay of arbitration of a grievance demanded by an employee of the Rockland County Community College, Patricia Harnett.
Harnett was employed by the college in a position funded by a grant. Because she was paid from grant monies, she was excluded from the negotiating unit represented by Local 1817. Therefore her employment was not covered by the collective bargaining agreement between the college and Local 1817.
According to the Local, however, Harnett and the president of the college had agreed that she should be included as a member of the negotiating unit.* This, the Local argued, meant that she was covered by the Taylor Law agreement between the college and Local 1817.
Harnett’s status became an issue when she filed a complaint under the grievance procedure set out in the collective bargaining agreement and ultimately demanded that the issue be submitted to arbitration.
Rockland objected and attempted to obtain a stay of arbitration pursuant to Section 7503 of the Civil Practice Law and Rules. A State Supreme Court justice ruled that Harnett’s grievance had to be submitted to arbitration.
The Appellate Division reversed, rejecting Local 1817’s argument that Harnett was covered by the collective bargaining agreement as a result of a settlement entered into by Harnett and the president of Rockland Community College.
The Appellate Division characterized the settlement as ultra vires since it had not been ratified by the college’s board of trustees.
In commercial law, the term ultra vires is used to describe acts beyond the scope of the power of a corporation. Here the Appellate Division used the term to describe the absence of authority on the part of the college president to agree to include Harnett within the negotiating unit without specific approval by the college’s board of trustees.
This suggests that the Appellate Division would have been less troubled by Local 1817’s argument had the college trustees ratified the agreement between the college president and Harnett.
In the alternative, assume that the agreement between the president and Harnett provided that the terms and conditions of her employment were to be determined by the collective bargaining contract instead of deeming her to be a member of the collective bargaining unit, i.e., the provisions of the collective bargaining agreement were incorporated by reference into her contract of employment by the college. If such a contract of employment was duly ratified by the appointing authority, Harnett might have been able to sue for breach of contract when her demand for arbitration was rejected by the college.
* Presumably Harnett’s position would have been included in the negotiating unit but for the source of funding for the item.
Rockland County v Federation of Teachers Local 1817, 275 AD2d 413
Clearly the incumbents of positions in the negotiating unit are covered by collective bargaining contracts negotiated pursuant to the Taylor Law.
Is an agreement between the parties to include a particular individual in the negotiating unit if the position filled by that individual is not included in the negotiating unit enforceable?
This was one of the issues considered by the Appellate Division when Rockland County attempted to obtain a stay of arbitration of a grievance demanded by an employee of the Rockland County Community College, Patricia Harnett.
Harnett was employed by the college in a position funded by a grant. Because she was paid from grant monies, she was excluded from the negotiating unit represented by Local 1817. Therefore her employment was not covered by the collective bargaining agreement between the college and Local 1817.
According to the Local, however, Harnett and the president of the college had agreed that she should be included as a member of the negotiating unit.* This, the Local argued, meant that she was covered by the Taylor Law agreement between the college and Local 1817.
Harnett’s status became an issue when she filed a complaint under the grievance procedure set out in the collective bargaining agreement and ultimately demanded that the issue be submitted to arbitration.
Rockland objected and attempted to obtain a stay of arbitration pursuant to Section 7503 of the Civil Practice Law and Rules. A State Supreme Court justice ruled that Harnett’s grievance had to be submitted to arbitration.
The Appellate Division reversed, rejecting Local 1817’s argument that Harnett was covered by the collective bargaining agreement as a result of a settlement entered into by Harnett and the president of Rockland Community College.
The Appellate Division characterized the settlement as ultra vires since it had not been ratified by the college’s board of trustees.
In commercial law, the term ultra vires is used to describe acts beyond the scope of the power of a corporation. Here the Appellate Division used the term to describe the absence of authority on the part of the college president to agree to include Harnett within the negotiating unit without specific approval by the college’s board of trustees.
This suggests that the Appellate Division would have been less troubled by Local 1817’s argument had the college trustees ratified the agreement between the college president and Harnett.
In the alternative, assume that the agreement between the president and Harnett provided that the terms and conditions of her employment were to be determined by the collective bargaining contract instead of deeming her to be a member of the collective bargaining unit, i.e., the provisions of the collective bargaining agreement were incorporated by reference into her contract of employment by the college. If such a contract of employment was duly ratified by the appointing authority, Harnett might have been able to sue for breach of contract when her demand for arbitration was rejected by the college.
* Presumably Harnett’s position would have been included in the negotiating unit but for the source of funding for the item.
New York City Civil Service Commission’s ruling applicant qualified controls
New York City Civil Service Commission’s ruling applicant qualified controls
City of New York v Civil Service Commission, Supreme Court, New York County, Docket Number: 0401706 [Not selected for publication in the Official Reports]
The New York Policy Department (NYPD) challenged a determination by the New York City Civil Service Commission holding that Hope Mahoney was qualified for appointment to the position of police officer with the Department.
Having passed the written test, Mahoney was also required to submit to a psychological examination to determine her fitness for duty as a police officer. After conducting an evaluation, the Police Department’s psychologist concluded that Mahoney was “psychologically unsuited for police work.”
Mahoney then saw her own her medical expert, Dr. Richard E. Ovens. Ovens conducted his own psychological evaluation of Mahoney. Dr. Ovens’ evaluation described Mahoney as “possess[ing] the requisite intellectual abilities, emotional resources and coping skills to meet the demands and stresses associated with the unique duties of a . . . police officer.”
In response to this, the Police Department’s expert, Dr. Arko, reviewed Dr. Ovens’ evaluation. Dr. Arko’s conclusion: Mahoney should be rejected for appointment to the position of police officer based on “poor judgment and impulse control” as evidenced by her two job terminations, and her driving record. NYPD forwarded Dr. Arko’s report to the New York City Civil Service Commission (CSC).
After reviewing all the records submitted to it, the CSC decided that a hearing was appropriate in order to resolve the factual issues related to Mahoney’s disqualification. Ultimately the CSC issued a decision reversing the NYPD’s disqualification of Mahoney, and advised NYPD that
“having reviewed the entire record and considering the arguments and testimony presented at the hearing, we conclude as follows. . . Having heard from both experts, we find that Dr. Ovens [sic] evaluation and assessment of the appellant was accurate and therefore more credible.”
NYPD filed an Article 78 petition challenged the decision of the CSC, contending that CSC’s determination was irrational in crediting the testimony of Dr. Oven’s over the testimony of Dr. Chiu-Palmer, and the other medical experts employed by NYPD.
According to the decision, “Dr. Ovens conducted a more comprehensive evaluation of Mahoney than Chiu-Palmer,” and that CSC rationally credited Dr. Ovens’ testimony over that of Chiu Palmer’s “based on his stronger educational background in psychology and his thirty years experience as a police officer.”
The court pointed out that the CSC is empowered by Section 813(d)* of the New York City Charter “to hear and decide appeals of petitioners’ determinations as to employment eligibility.” However, said the court, although CSC’s determinations of such appeals are subject to judicial review under Article 78, in such instances review by the court “is limited to the question of whether the decision of the administrative agency was arbitrary or capricious or irrational.”
In addition, citing Smith v. City of New York, 228 AD2d 381, leave to appeal denied, 89 NY2d 806, the court commented that “it has been held that “wide discretion is afforded to civil service commissions in determining fitness of candidates. The exercise of that discretion is to be sustained unless it has been clearly abused.”
Accordingly, said the court, “Under this standard, there is no basis for overturning the CSC determination that Mahoney is qualified to be a police officer. Specifically, it cannot be said that the CSC’s decision to credit the opinion of Dr. Ovens over that of Chiu-Palmer was irrational in light of Ovens’ substantial qualifications, including his doctorate in clinical psychology, his thirty years of experience as a police officer, and his practice which involves the treatment of traumatized police officers.”
NYPD’s appeal was dismissed and the Civil Service Commission’s determination upheld.
* The NY City Charter provides that: the civil service commission shall have the power to hear and determine appeals by any person aggrieved by any action or determination of the commissioner. . . and may affirm, modify or reverse such action or determination when there exists a rational basis in the record to support the decision.
City of New York v Civil Service Commission, Supreme Court, New York County, Docket Number: 0401706 [Not selected for publication in the Official Reports]
The New York Policy Department (NYPD) challenged a determination by the New York City Civil Service Commission holding that Hope Mahoney was qualified for appointment to the position of police officer with the Department.
Having passed the written test, Mahoney was also required to submit to a psychological examination to determine her fitness for duty as a police officer. After conducting an evaluation, the Police Department’s psychologist concluded that Mahoney was “psychologically unsuited for police work.”
Mahoney then saw her own her medical expert, Dr. Richard E. Ovens. Ovens conducted his own psychological evaluation of Mahoney. Dr. Ovens’ evaluation described Mahoney as “possess[ing] the requisite intellectual abilities, emotional resources and coping skills to meet the demands and stresses associated with the unique duties of a . . . police officer.”
In response to this, the Police Department’s expert, Dr. Arko, reviewed Dr. Ovens’ evaluation. Dr. Arko’s conclusion: Mahoney should be rejected for appointment to the position of police officer based on “poor judgment and impulse control” as evidenced by her two job terminations, and her driving record. NYPD forwarded Dr. Arko’s report to the New York City Civil Service Commission (CSC).
After reviewing all the records submitted to it, the CSC decided that a hearing was appropriate in order to resolve the factual issues related to Mahoney’s disqualification. Ultimately the CSC issued a decision reversing the NYPD’s disqualification of Mahoney, and advised NYPD that
“having reviewed the entire record and considering the arguments and testimony presented at the hearing, we conclude as follows. . . Having heard from both experts, we find that Dr. Ovens [sic] evaluation and assessment of the appellant was accurate and therefore more credible.”
NYPD filed an Article 78 petition challenged the decision of the CSC, contending that CSC’s determination was irrational in crediting the testimony of Dr. Oven’s over the testimony of Dr. Chiu-Palmer, and the other medical experts employed by NYPD.
According to the decision, “Dr. Ovens conducted a more comprehensive evaluation of Mahoney than Chiu-Palmer,” and that CSC rationally credited Dr. Ovens’ testimony over that of Chiu Palmer’s “based on his stronger educational background in psychology and his thirty years experience as a police officer.”
The court pointed out that the CSC is empowered by Section 813(d)* of the New York City Charter “to hear and decide appeals of petitioners’ determinations as to employment eligibility.” However, said the court, although CSC’s determinations of such appeals are subject to judicial review under Article 78, in such instances review by the court “is limited to the question of whether the decision of the administrative agency was arbitrary or capricious or irrational.”
In addition, citing Smith v. City of New York, 228 AD2d 381, leave to appeal denied, 89 NY2d 806, the court commented that “it has been held that “wide discretion is afforded to civil service commissions in determining fitness of candidates. The exercise of that discretion is to be sustained unless it has been clearly abused.”
Accordingly, said the court, “Under this standard, there is no basis for overturning the CSC determination that Mahoney is qualified to be a police officer. Specifically, it cannot be said that the CSC’s decision to credit the opinion of Dr. Ovens over that of Chiu-Palmer was irrational in light of Ovens’ substantial qualifications, including his doctorate in clinical psychology, his thirty years of experience as a police officer, and his practice which involves the treatment of traumatized police officers.”
NYPD’s appeal was dismissed and the Civil Service Commission’s determination upheld.
* The NY City Charter provides that: the civil service commission shall have the power to hear and determine appeals by any person aggrieved by any action or determination of the commissioner. . . and may affirm, modify or reverse such action or determination when there exists a rational basis in the record to support the decision.
Dec 28, 2010
Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideas
Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideas
Personnel administrators and other professionals serving with State and municipal departments and agencies interested in exchanging ideas and in discussing selected court and administrative decisions and related matters affecting public employers and employees in New York State are invited to become members of iZoca* and join the Public Personnel Administrators group.
The initial PPA posting is at: http://www.izoca.com/groups/public-personnel-administrators/discussions/33670
iZoca allows members to connect with both their communities and their groups. The platform provides members an opportuntiy to share information and exchange ideas.
In addition, iZoca provides powerful group features that help keep you informed and engaged with all your group activities. Once your free account is created, you will be able to join Public Personnel Administrators and other groups, or even start your own membership group in addition to those already available.
To become a member of the Public Personnel Administrators group, go to:
http://www.izoca.com/join/groups/public-personnel-administrators
* The name iZoca is derived from the Spanish word “zocalo” which is referred to as a square or plaza in Mexico where people congregate. iZoca was founded in 2007 and is located in New York's Tech Valley Region.
Personnel administrators and other professionals serving with State and municipal departments and agencies interested in exchanging ideas and in discussing selected court and administrative decisions and related matters affecting public employers and employees in New York State are invited to become members of iZoca* and join the Public Personnel Administrators group.
The initial PPA posting is at: http://www.izoca.com/groups/public-personnel-administrators/discussions/33670
iZoca allows members to connect with both their communities and their groups. The platform provides members an opportuntiy to share information and exchange ideas.
In addition, iZoca provides powerful group features that help keep you informed and engaged with all your group activities. Once your free account is created, you will be able to join Public Personnel Administrators and other groups, or even start your own membership group in addition to those already available.
To become a member of the Public Personnel Administrators group, go to:
http://www.izoca.com/join/groups/public-personnel-administrators
* The name iZoca is derived from the Spanish word “zocalo” which is referred to as a square or plaza in Mexico where people congregate. iZoca was founded in 2007 and is located in New York's Tech Valley Region.
Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character
Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character
Matter of Mudge v Huxley, 2010 NY Slip Op 09311, Decided on December 16, 2010, Appellate Division, Third Department
Randy Mudge, a certified as a teacher and school administrator, requested a hearing in response to a notice from the State Department of Education that a substantial question existed with respect to his moral character.
The hearing panel determined that Mudge “lacked the good moral character necessary to be a teacher in New York State” and recommended suspension of his certificates for one year.
Mudge appealed and although the Commissioner* “modified the findings of the panel," she sustained the one-year suspension of his certificates. Mudge then filed a petition in Supreme Court challenging the Commissioner’s decision.
The Appellate Division said that its review of the Commissioner’s ruling “in this context is limited to whether it is arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion.”**
According to the decision by the Appellate Division, Mudge admitted that he had had sexual intercourse with two former students. Finding a “pattern of behavior in affording the girls preferential treatment while they were students, including the pre-graduation trips to “Mets games,” [the Commissioner] concluded that Mudge had groomed them for a sexual relationship while they were students and then, shortly after they graduated, exploited the relationships that he had cultivated.”
The Appellate Division rejected Mudge’s argument that the Commissioner’s conclusion regarding “grooming of the students prior to graduation is irrational.”
Although Mudge argued that each of the various factors considered by the Commissioner is innocent by itself, and his character is unassailable, the court said that it could not agree. It said that “Given the evidence of [Mudge’s] pattern of behavior with both girls, [the Commissioner’s] determination that [Mudge] was engaged in grooming and that he lacks the requisite moral character to be a teacher in this state is supported by a rational basis.
The Appellate Division then confirmed the Commissioner’s determination and dismissed Mudge’s appeal.
* Interim Commissioner of Education Carole F. Huxley
** The Appellate Division noted that Supreme Court’s transfer of Mudge’s appeal to it “was improper because the appropriate standard of review is not whether the determination is supported by substantial evidence,” it said that it would retain the proceeding and resolve the issues “in the interest of judicial economy.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09311.htm
Matter of Mudge v Huxley, 2010 NY Slip Op 09311, Decided on December 16, 2010, Appellate Division, Third Department
Randy Mudge, a certified as a teacher and school administrator, requested a hearing in response to a notice from the State Department of Education that a substantial question existed with respect to his moral character.
The hearing panel determined that Mudge “lacked the good moral character necessary to be a teacher in New York State” and recommended suspension of his certificates for one year.
Mudge appealed and although the Commissioner* “modified the findings of the panel," she sustained the one-year suspension of his certificates. Mudge then filed a petition in Supreme Court challenging the Commissioner’s decision.
The Appellate Division said that its review of the Commissioner’s ruling “in this context is limited to whether it is arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion.”**
According to the decision by the Appellate Division, Mudge admitted that he had had sexual intercourse with two former students. Finding a “pattern of behavior in affording the girls preferential treatment while they were students, including the pre-graduation trips to “Mets games,” [the Commissioner] concluded that Mudge had groomed them for a sexual relationship while they were students and then, shortly after they graduated, exploited the relationships that he had cultivated.”
The Appellate Division rejected Mudge’s argument that the Commissioner’s conclusion regarding “grooming of the students prior to graduation is irrational.”
Although Mudge argued that each of the various factors considered by the Commissioner is innocent by itself, and his character is unassailable, the court said that it could not agree. It said that “Given the evidence of [Mudge’s] pattern of behavior with both girls, [the Commissioner’s] determination that [Mudge] was engaged in grooming and that he lacks the requisite moral character to be a teacher in this state is supported by a rational basis.
The Appellate Division then confirmed the Commissioner’s determination and dismissed Mudge’s appeal.
* Interim Commissioner of Education Carole F. Huxley
** The Appellate Division noted that Supreme Court’s transfer of Mudge’s appeal to it “was improper because the appropriate standard of review is not whether the determination is supported by substantial evidence,” it said that it would retain the proceeding and resolve the issues “in the interest of judicial economy.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09311.htm
Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancy
Reinstatement of a former employee permitted notwithstanding the availability of an eligible list for appointment to the vacancy
Matter of O'Connor v New York State Civ. Serv. Commn., 2010 NY Slip Op 09324, Appellate Division, Third Department,
After posting a vacancy for the position of Supervising Hearing Officer [SHO], the Office of Temporary Disability and Assistance [OTDA] elected to reinstate Frank Gottlieb, a recently retired former SHO at OTDA. Gottlieb had submitted a request to be reinstated to the position of SHO.
Vincent J. O'Connor, a hearing officer, was one of about a dozen applicants, including Gottlieb, being considered for the position. After Gottlieb was reinstated to the position, O’Connor asked the Department of Civil Service to revoke Gottlieb's appointment. The Department denied O’Connor’s application.
O’Connor then appealed the Department’s decision to the State Civil Service Commission. The Commission affirmed the Department's determination and O’Connor filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Commission’s decision.
Supreme Court dismissed O’Connor’s petition, which action the Appellate Division affirmed.
The court said that O’Connor contended that “OTDA has acted improperly for many years because, instead of using competitive examinations, individuals are placed in SHO positions by the transfer method authorized in Civil Service Law §52(6).”*
However, the Appellate Division observed, that issue was not properly before us in this appeal as the appointment to which O’Connor had objected was not the result of a “transfer” but rather the reinstatement of a former, albeit, retired former SHO.** The decision points out that 4 NYCRR 5.4 permits the "[r]einstatement within one year, without examination” of a former employee.
After finding that the Commission did not act in an arbitrary or capricious manner in rejecting O’Connor’s request to have Gottlieb's reinstatement revoked, the court noted that the issue, in fact, was moot as Gottlieb “reportedly left the SHO position during the time this appeal was pending.”
* The terms "transfer," “reassignment” and “reinstatement” are unique personnel transaction in the public service. The term “transfer” is used to describe a change of employment where the employee leaves the jurisdiction of one appointing authority and enters the jurisdiction of another, different, appointing authority. In contrast, the term "reassignment" is used to describe personnel changes by the appointing authority within the same department or agency or within the jurisdiction of the same appointing authority. Except where there is a "transfer of function," transfers required the approval of both appointing authorities and the consent of the individual to be transferred [see 70.1, Civil Service Law] while a "reassignment" may be made without the agreement or consent of the employee concerned absent a provision in a collective bargaining agreement to the contrary. “Reinstatement” involves the reemployment of an individual who, after leaving public service, seeks to return to his or her former, or similar, position with his or her seniority as otherwise provided by law for such purposes layoff and eligibly for fringe certain benefits in his or her new position.
** Although of significant relevance, the decision does not address the impact of Civil Service Law §150 nor Retirement and Social Security Law §210 et seq. insofar as the compensation to be paid Gottlieb upon his reinstatement is concerned.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09324.htm
Matter of O'Connor v New York State Civ. Serv. Commn., 2010 NY Slip Op 09324, Appellate Division, Third Department,
After posting a vacancy for the position of Supervising Hearing Officer [SHO], the Office of Temporary Disability and Assistance [OTDA] elected to reinstate Frank Gottlieb, a recently retired former SHO at OTDA. Gottlieb had submitted a request to be reinstated to the position of SHO.
Vincent J. O'Connor, a hearing officer, was one of about a dozen applicants, including Gottlieb, being considered for the position. After Gottlieb was reinstated to the position, O’Connor asked the Department of Civil Service to revoke Gottlieb's appointment. The Department denied O’Connor’s application.
O’Connor then appealed the Department’s decision to the State Civil Service Commission. The Commission affirmed the Department's determination and O’Connor filed a petition pursuant to CPLR Article 78 seeking a court order annulling the Commission’s decision.
Supreme Court dismissed O’Connor’s petition, which action the Appellate Division affirmed.
The court said that O’Connor contended that “OTDA has acted improperly for many years because, instead of using competitive examinations, individuals are placed in SHO positions by the transfer method authorized in Civil Service Law §52(6).”*
However, the Appellate Division observed, that issue was not properly before us in this appeal as the appointment to which O’Connor had objected was not the result of a “transfer” but rather the reinstatement of a former, albeit, retired former SHO.** The decision points out that 4 NYCRR 5.4 permits the "[r]einstatement within one year, without examination” of a former employee.
After finding that the Commission did not act in an arbitrary or capricious manner in rejecting O’Connor’s request to have Gottlieb's reinstatement revoked, the court noted that the issue, in fact, was moot as Gottlieb “reportedly left the SHO position during the time this appeal was pending.”
* The terms "transfer," “reassignment” and “reinstatement” are unique personnel transaction in the public service. The term “transfer” is used to describe a change of employment where the employee leaves the jurisdiction of one appointing authority and enters the jurisdiction of another, different, appointing authority. In contrast, the term "reassignment" is used to describe personnel changes by the appointing authority within the same department or agency or within the jurisdiction of the same appointing authority. Except where there is a "transfer of function," transfers required the approval of both appointing authorities and the consent of the individual to be transferred [see 70.1, Civil Service Law] while a "reassignment" may be made without the agreement or consent of the employee concerned absent a provision in a collective bargaining agreement to the contrary. “Reinstatement” involves the reemployment of an individual who, after leaving public service, seeks to return to his or her former, or similar, position with his or her seniority as otherwise provided by law for such purposes layoff and eligibly for fringe certain benefits in his or her new position.
** Although of significant relevance, the decision does not address the impact of Civil Service Law §150 nor Retirement and Social Security Law §210 et seq. insofar as the compensation to be paid Gottlieb upon his reinstatement is concerned.
The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09324.htm
Statute of limitations - duty of fair representation
Statute of limitations - duty of fair representation
Matter of Mankowski, 33 PERB 3032
Daniel M. Mankowski charged that the Public Employees Federation [PEF] violated it duty of fair representation when it failed to represent him in certain grievances he filed against his former employer, the State of New York.
PERB affirmed its administrative law judge’s dismissal of Mankowski’s petition as untimely, noting that he had filed it more than four months after his last contact with PEF.
Matter of Mankowski, 33 PERB 3032
Daniel M. Mankowski charged that the Public Employees Federation [PEF] violated it duty of fair representation when it failed to represent him in certain grievances he filed against his former employer, the State of New York.
PERB affirmed its administrative law judge’s dismissal of Mankowski’s petition as untimely, noting that he had filed it more than four months after his last contact with PEF.
Determining the minimum period of probation
Determining the minimum period of probation
Challandes v Shew, 275 A.D.2d 369
In most cases a permanent appointment to a position in the classified service is subject to a probationary period. Typically the probationary period is set in terms of a minimum period and a maximum period.*
Also, if a probationer enters military duty within the meaning of Section 243 of the Military Law, the time of his or her absence shall be credited as satisfactory service during such probationary term.
The basic rule: unless otherwise provided by a collective bargaining agreement, a probationer may be dismissed at any time, for any reason [other than for an unlawful or discriminatory purpose], or for no reason, after completing his or her minimum probationary period and prior to the end of his or her maximum period of probation.
In other words, a probationary employee may be terminated without a statement of any reason for the termination and without a per-termination hearing, provided the dismissal (1) was not made in bad faith; (2) did not constitute a violation of statutory or decisional law; and (3) was not based on any unconstitutional or illegal reasons.
If the appointing authority wishes to dismiss a probationer before he or she completes his or her minimum probationary period** formal disciplinary action must be initiated. The decision by the Appellate Division in the Challandes case demonstrates this.
The Village of Ossining appointed Joyce Challandes as a permanent Data Entry Operator, subject to her satisfactorily completing her probationary period. A few days later the Village Manager revoked the appointment.
Challandes sued, claiming that her termination was unlawful. A State Supreme Court justice agreed and directed Ossining to reinstate her to the position with all back salary and the other benefits that she would have received had her appointment not been revoked.
The Village appealed, only to have the lower court’s determination affirmed by the Appellate Division.
Under Westchester County’s Civil Service Rule 11.1(a)(1), said the court, Challandes had to serve a minimum of 12 weeks before she could be removed at the discretion of the appointing authority. Any earlier termination would have to be based on her having to be found guilty of charges of incompetence or misconduct pursuant to Civil Service Law Section 75. As Challandes was not served with disciplinary charges and no Section 75 hearing was conducted, the court ruled that Challandes’ removal was unlawful.
It is well settled that if a probationary employee is continued in service beyond the last day of the maximum probationary period and was not given a timely notice that he or she was to terminated at the end the probationary period or that his or her probationary period has been extended beyond the maximum period, the employee becomes tenured in the position and thereafter may only be removed for cause after notice and hearing. This is usually referred to as attaining “tenure by estoppel.”
Although tenure by estoppel is most frequently encounter in connection with claims of tenure advanced by probationary teachers who have been terminated, it is possible for employees holding positions in the competitive class to attain tenure by estoppel.
For example, if a provisional employee in a competitive class position becomes eligible for permanent appointment to the position and he or she is continued in the position as a provisional employee, he or she is afforded permanent appointment to the position. The leading case on this point: Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611.
Suppose, however, a provision employee is given his or her notice of termination on the last day of the employee’s probationary period and the employee is continued on the payroll beyond the last day his or her probationary period. This, courts have ruled, constitutes a timely notice of termination as the last day of service need not coincide with the last day of the probationary period.
As the Appellate Division held in Mendez v Valenti, 101 AD2d 612, so long as the termination is effective within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.
Stated another way, the appointing authority has until the last day of the individual’s probationary period to decide whether to retain the employee, extend the employee’s probationary period, or to terminate the employee from his or her position. Although the effective of the employee’s removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before the end of his or her probationary period.
* An example of a permanent appointment in the classified service that is not subject to a probationary period: reinstatement from a preferred list. However, an individual who was laid off before completing his or her probationary period is required to complete his or her term of probation upon reinstatement from the preferred list.
** If no minimum probationary period is specified and the appointment is simply made subject to the satisfactory completion of the probationary period the only window of opportunity for termination without initiating disciplinary action occurs at the end of the probationary period.
Challandes v Shew, 275 A.D.2d 369
In most cases a permanent appointment to a position in the classified service is subject to a probationary period. Typically the probationary period is set in terms of a minimum period and a maximum period.*
Also, if a probationer enters military duty within the meaning of Section 243 of the Military Law, the time of his or her absence shall be credited as satisfactory service during such probationary term.
The basic rule: unless otherwise provided by a collective bargaining agreement, a probationer may be dismissed at any time, for any reason [other than for an unlawful or discriminatory purpose], or for no reason, after completing his or her minimum probationary period and prior to the end of his or her maximum period of probation.
In other words, a probationary employee may be terminated without a statement of any reason for the termination and without a per-termination hearing, provided the dismissal (1) was not made in bad faith; (2) did not constitute a violation of statutory or decisional law; and (3) was not based on any unconstitutional or illegal reasons.
If the appointing authority wishes to dismiss a probationer before he or she completes his or her minimum probationary period** formal disciplinary action must be initiated. The decision by the Appellate Division in the Challandes case demonstrates this.
The Village of Ossining appointed Joyce Challandes as a permanent Data Entry Operator, subject to her satisfactorily completing her probationary period. A few days later the Village Manager revoked the appointment.
Challandes sued, claiming that her termination was unlawful. A State Supreme Court justice agreed and directed Ossining to reinstate her to the position with all back salary and the other benefits that she would have received had her appointment not been revoked.
The Village appealed, only to have the lower court’s determination affirmed by the Appellate Division.
Under Westchester County’s Civil Service Rule 11.1(a)(1), said the court, Challandes had to serve a minimum of 12 weeks before she could be removed at the discretion of the appointing authority. Any earlier termination would have to be based on her having to be found guilty of charges of incompetence or misconduct pursuant to Civil Service Law Section 75. As Challandes was not served with disciplinary charges and no Section 75 hearing was conducted, the court ruled that Challandes’ removal was unlawful.
It is well settled that if a probationary employee is continued in service beyond the last day of the maximum probationary period and was not given a timely notice that he or she was to terminated at the end the probationary period or that his or her probationary period has been extended beyond the maximum period, the employee becomes tenured in the position and thereafter may only be removed for cause after notice and hearing. This is usually referred to as attaining “tenure by estoppel.”
Although tenure by estoppel is most frequently encounter in connection with claims of tenure advanced by probationary teachers who have been terminated, it is possible for employees holding positions in the competitive class to attain tenure by estoppel.
For example, if a provisional employee in a competitive class position becomes eligible for permanent appointment to the position and he or she is continued in the position as a provisional employee, he or she is afforded permanent appointment to the position. The leading case on this point: Roulett v Town of Hempstead Civil Service Commission, 40 AD2d 611.
Suppose, however, a provision employee is given his or her notice of termination on the last day of the employee’s probationary period and the employee is continued on the payroll beyond the last day his or her probationary period. This, courts have ruled, constitutes a timely notice of termination as the last day of service need not coincide with the last day of the probationary period.
As the Appellate Division held in Mendez v Valenti, 101 AD2d 612, so long as the termination is effective within a reasonable time, such as set to coincide with the end of the next payroll period, the courts will not deem the probationer to have obtained tenure by estoppel because of his or her continuation on the payroll following the last day of his or her probationary period.
Stated another way, the appointing authority has until the last day of the individual’s probationary period to decide whether to retain the employee, extend the employee’s probationary period, or to terminate the employee from his or her position. Although the effective of the employee’s removal from the payroll may occur after this date, the required notice of the termination must be delivered to the employee before the end of his or her probationary period.
* An example of a permanent appointment in the classified service that is not subject to a probationary period: reinstatement from a preferred list. However, an individual who was laid off before completing his or her probationary period is required to complete his or her term of probation upon reinstatement from the preferred list.
** If no minimum probationary period is specified and the appointment is simply made subject to the satisfactory completion of the probationary period the only window of opportunity for termination without initiating disciplinary action occurs at the end of the probationary period.
Applicant rejected after being found overqualified for appointment to the position
Applicant rejected after being found overqualified for appointment to the position
City of New London v Harrigan, CA2*
May an individual be so overqualified for the position so as to justify his or her being rejected for an appointment to the title? This was the issue raised in the Harrigan, a case decided by the US Circuit Court of Appeals, Second Circuit on August 23, 2000.
In March 1996 Robert Jordan and some 500 other candidates for appointment as police officers with various municipal police departments in Connecticut were screened using the Wonderlic Personnel Test and Scholastic Level Exam [WPT]. The test is used to measure cognitive ability.
Recommended scores for various professions are listed in the WPT manual and it notes that overqualified candidates may soon become bored with unchallenging work and quit, and that [s]imply hiring the highest scoring employee can be self-defeating. Jordan scored a 33 on the WPT, above the median for any listed occupation, and well over the normative median of 21 suggested for a police patrol officer.
Jordan then learned that he would not be interviewed by the City of New London because he didn’t fit the profile. New London explained that Jordan had scored a 33 on the WPT, and that to prevent frequent job turnover caused by hiring overqualified applicants New London only interviewed candidates who scored between 20 and 27.
Jordan sued, contending that the City had denied him equal protection in violation of the Fourteenth Amendment and Article 4, Section 20, of the Connecticut Constitution.
A federal district court judge granted the City’s motion for summary judgment. The Second Circuit affirmed the lower court’s ruling, concluding that:
New London’s use of an upper cut did not violate the equal protection clause since [A] statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification ... concluding that even absent a strong proven statistical correlation between high scores on the Wonderlic test and turnover resulting from lack of job satisfaction, it is enough that the city believed - on the basis of material prepared by the test maker and a letter along similar lines sent by the LEC - that there was such a connection.
* This is an unpublished opinion. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.
City of New London v Harrigan, CA2*
May an individual be so overqualified for the position so as to justify his or her being rejected for an appointment to the title? This was the issue raised in the Harrigan, a case decided by the US Circuit Court of Appeals, Second Circuit on August 23, 2000.
In March 1996 Robert Jordan and some 500 other candidates for appointment as police officers with various municipal police departments in Connecticut were screened using the Wonderlic Personnel Test and Scholastic Level Exam [WPT]. The test is used to measure cognitive ability.
Recommended scores for various professions are listed in the WPT manual and it notes that overqualified candidates may soon become bored with unchallenging work and quit, and that [s]imply hiring the highest scoring employee can be self-defeating. Jordan scored a 33 on the WPT, above the median for any listed occupation, and well over the normative median of 21 suggested for a police patrol officer.
Jordan then learned that he would not be interviewed by the City of New London because he didn’t fit the profile. New London explained that Jordan had scored a 33 on the WPT, and that to prevent frequent job turnover caused by hiring overqualified applicants New London only interviewed candidates who scored between 20 and 27.
Jordan sued, contending that the City had denied him equal protection in violation of the Fourteenth Amendment and Article 4, Section 20, of the Connecticut Constitution.
A federal district court judge granted the City’s motion for summary judgment. The Second Circuit affirmed the lower court’s ruling, concluding that:
New London’s use of an upper cut did not violate the equal protection clause since [A] statutory classification that neither proceeds along suspect lines nor infringes fundamental constitutional rights must be upheld against equal protection challenge if there is any reasonably conceivable state of facts that could provide a rational basis for the classification ... concluding that even absent a strong proven statistical correlation between high scores on the Wonderlic test and turnover resulting from lack of job satisfaction, it is enough that the city believed - on the basis of material prepared by the test maker and a letter along similar lines sent by the LEC - that there was such a connection.
* This is an unpublished opinion. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.
Dec 27, 2010
Videotape used in disciplinary hearing to rebut employee’s testimony
Videotape used in disciplinary hearing to rebut employee’s testimony
NYC Department of Corrections v Saint-Phard, OATH Index #172/11
OATH Administrative Law Judge Faye Lewis found that Stanley Saint-Phard, a New York City correction officer, used impermissible force by dispersing a chemical agent in an inmate's face and placing him in a chokehold.
Saint-Phard contended that the use of such force was justified because the inmate made an aggressive motion towards him after disobeying an order to return to his cell.
A videotape introduced into evidence, however, showed that before Saint-Phard deployed the spray, the inmate had turned around and placed his hands behind his back. Further, the video showed that the officer was less than three feet from the inmate when he sprayed him, in violation of a directive prohibiting the use of the spray from close range.
ALJ Lewis also found that Saint-Phard used an impermissible chokehold on the inmate during the ensuing takedown of the inmate. A 60-day suspension was the recommended penalty.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-172.pdf
NYC Department of Corrections v Saint-Phard, OATH Index #172/11
OATH Administrative Law Judge Faye Lewis found that Stanley Saint-Phard, a New York City correction officer, used impermissible force by dispersing a chemical agent in an inmate's face and placing him in a chokehold.
Saint-Phard contended that the use of such force was justified because the inmate made an aggressive motion towards him after disobeying an order to return to his cell.
A videotape introduced into evidence, however, showed that before Saint-Phard deployed the spray, the inmate had turned around and placed his hands behind his back. Further, the video showed that the officer was less than three feet from the inmate when he sprayed him, in violation of a directive prohibiting the use of the spray from close range.
ALJ Lewis also found that Saint-Phard used an impermissible chokehold on the inmate during the ensuing takedown of the inmate. A 60-day suspension was the recommended penalty.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-172.pdf
Dissatisfaction with an employer's drug testing procedure is not “good cause” for resigning for the purposes of claiming unemployment benefits
Dissatisfaction with an employer's drug testing procedure is not “good cause” for resigning for the purposes of claiming unemployment benefits
Matter of French v Town of Lyndon, 2010 NY Slip Op 09451, Decided on December 23, 2010, Appellate Division, Third Department
Kevin M. French, a driver/operator for the Town of Lyndon. He advised Lyndon that he believed that drug testing of drivers was being performed incorrectly by the company Lyndon was then using to perform the tests. This led to Lyndon having the tests administered by a different company.
Sometime later French overheard a Town official telling his immediate supervisor that he was scheduled for a random drug test. French failed to report for work the next day and when contacted, said that “he had quit and did not wish to discuss the matter further.”
French filed for unemployment insurance benefit. The State Department of Labor issued an initial determination disqualifying him for benefits after finding that he voluntarily separated from employment without good cause.
The Appellate Division affirmed the Department’s determination, holding that “Whether a claimant has voluntarily separated from employment without good cause is an issue of fact to be resolved by the Board, and its decision will not be disturbed when supported by substantial evidence.”
As to “good cause,” the court noted that “Dissatisfaction with an employer's method of doing business does not constitute good cause for leaving employment, particularly where the employee did not make a reasonable attempt to protect employment by notifying the employer about his or her concerns.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09451.htm
Matter of French v Town of Lyndon, 2010 NY Slip Op 09451, Decided on December 23, 2010, Appellate Division, Third Department
Kevin M. French, a driver/operator for the Town of Lyndon. He advised Lyndon that he believed that drug testing of drivers was being performed incorrectly by the company Lyndon was then using to perform the tests. This led to Lyndon having the tests administered by a different company.
Sometime later French overheard a Town official telling his immediate supervisor that he was scheduled for a random drug test. French failed to report for work the next day and when contacted, said that “he had quit and did not wish to discuss the matter further.”
French filed for unemployment insurance benefit. The State Department of Labor issued an initial determination disqualifying him for benefits after finding that he voluntarily separated from employment without good cause.
The Appellate Division affirmed the Department’s determination, holding that “Whether a claimant has voluntarily separated from employment without good cause is an issue of fact to be resolved by the Board, and its decision will not be disturbed when supported by substantial evidence.”
As to “good cause,” the court noted that “Dissatisfaction with an employer's method of doing business does not constitute good cause for leaving employment, particularly where the employee did not make a reasonable attempt to protect employment by notifying the employer about his or her concerns.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09451.htm
Concerning the employee’s duty to mitigate damages following his or her termination
Concerning the employee’s duty to mitigate damages following his or her termination
Rongiger v McCall, USDC, SDNY, [unpublished]*
The Rongiger case discusses a somewhat infrequently encountered aspect in litigation involving alleged violations of an employees civil rights: the duty of a dismissed employee to mitigate damages and the proof an employer must produce to show that the employee failed to mitigate, or attempt to mitigate, his or her damages following the termination.
George P. Rongiger sued then State Comptroller H. Carl McCall for damages, claiming that McCall had terminated him in retaliation for his exercising his right to free speech in violation of his civil rights. One of the significant major issues in this litigation concerned the question an individual’s duty to mitigate damages.
Rongiger, who had been serving in the Office of the State Deputy Comptroller for the City of New York, a division of the Office of the State Comptroller, alleged that he was terminated after making politically embarrassing statements in deposition testimony concerning correspondence between McCall and then-Mayor David Dinkins in connection with New York City’s efforts to prevent a downgrading of its bond rating.
Did Rongiger have a duty to mitigate damages by seeking substitute employment following his dismissal? In a word, yes! As Federal District Court Justice Sweet noted, citing Dailey v Societe Generale, 108 F.3d 451, an employee who has been subject to discriminatory discharge is required to mitigate his damages.
In Greenway v Buffalo Hilton Hotel, 143 F.3d 47, the Second Circuit explained that this duty means that the discharged employee ‘must use reasonable diligence in finding other suitable employment,’ which need not be comparable to [his] previous positions.
Since the employer charged with discrimination is required to prove any failure on the part of the employee to mitigate damages, McCall retained Dr. Charles L. Sodikoff as an expert on the issue of mitigation and asked him to prepare a report as to his findings.
Sodikoff’s report set out his opinion concerning the length of time it should have taken Rongiger to find a comparably paying job or to build a profitable consulting practice, and the reasonableness of Rongiger’s job search.
Sodikoff concluded that Rongiger should have obtained comparable work within six to ten months of his termination and that he should have built a consulting practice sufficient to replace his compensation in 1994 within two years of his termination. Rongiger challenged the admission of Sodikoff’s report.
After noting that such expert testimony was relevant, Justice Sweet discussed the methods used by Sodikoff in preparing his report and his conclusion. Based on his evaluation of the procedures used by Sodikoff Justice Sweet granted part of Rongiger’s motion to exclude expert testimony.
In contrast, there is no duty on the part of individual who has been terminated after being found guilty following disciplinary action taken pursuant to Section 75 of the Civil Service Law to mitigate his or her damages.
Civil Service Law Sections 76 and 77, which, respectively, deal with reinstatement by a Civil Service Commission or a court following a successful appeal of as Section 75 dismissal and the annulment of the termination, provide that an employee who is reinstated is to receive the salary or compensation he or she would have been entitled by law to have received in his or her position for the period of removal including any prior period of suspension without pay, less the amount of any unemployment insurance benefits he may have received during such period.*
Thus mitigation is not a factor as even if the individual obtains employment after being discharged, any monies earned thereby would not be considered in determining the amount of compensation to be paid as back salary upon reinstatement -- only unemployment insurance benefits are to be considered in determining the back salary due upon reinstatement.
* This is an unpublished opinion. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.
** Sections 76 and 77 of the Civil Service Law originally provided for an adjustment in consideration of earnings received from other sources, thereby implying a duty to mitigate damages. Chapter 710 of the Law of 1984 deleted the phrase compensation which he may have earned in any other employment or occupation.... from the law.
Rongiger v McCall, USDC, SDNY, [unpublished]*
The Rongiger case discusses a somewhat infrequently encountered aspect in litigation involving alleged violations of an employees civil rights: the duty of a dismissed employee to mitigate damages and the proof an employer must produce to show that the employee failed to mitigate, or attempt to mitigate, his or her damages following the termination.
George P. Rongiger sued then State Comptroller H. Carl McCall for damages, claiming that McCall had terminated him in retaliation for his exercising his right to free speech in violation of his civil rights. One of the significant major issues in this litigation concerned the question an individual’s duty to mitigate damages.
Rongiger, who had been serving in the Office of the State Deputy Comptroller for the City of New York, a division of the Office of the State Comptroller, alleged that he was terminated after making politically embarrassing statements in deposition testimony concerning correspondence between McCall and then-Mayor David Dinkins in connection with New York City’s efforts to prevent a downgrading of its bond rating.
Did Rongiger have a duty to mitigate damages by seeking substitute employment following his dismissal? In a word, yes! As Federal District Court Justice Sweet noted, citing Dailey v Societe Generale, 108 F.3d 451, an employee who has been subject to discriminatory discharge is required to mitigate his damages.
In Greenway v Buffalo Hilton Hotel, 143 F.3d 47, the Second Circuit explained that this duty means that the discharged employee ‘must use reasonable diligence in finding other suitable employment,’ which need not be comparable to [his] previous positions.
Since the employer charged with discrimination is required to prove any failure on the part of the employee to mitigate damages, McCall retained Dr. Charles L. Sodikoff as an expert on the issue of mitigation and asked him to prepare a report as to his findings.
Sodikoff’s report set out his opinion concerning the length of time it should have taken Rongiger to find a comparably paying job or to build a profitable consulting practice, and the reasonableness of Rongiger’s job search.
Sodikoff concluded that Rongiger should have obtained comparable work within six to ten months of his termination and that he should have built a consulting practice sufficient to replace his compensation in 1994 within two years of his termination. Rongiger challenged the admission of Sodikoff’s report.
After noting that such expert testimony was relevant, Justice Sweet discussed the methods used by Sodikoff in preparing his report and his conclusion. Based on his evaluation of the procedures used by Sodikoff Justice Sweet granted part of Rongiger’s motion to exclude expert testimony.
In contrast, there is no duty on the part of individual who has been terminated after being found guilty following disciplinary action taken pursuant to Section 75 of the Civil Service Law to mitigate his or her damages.
Civil Service Law Sections 76 and 77, which, respectively, deal with reinstatement by a Civil Service Commission or a court following a successful appeal of as Section 75 dismissal and the annulment of the termination, provide that an employee who is reinstated is to receive the salary or compensation he or she would have been entitled by law to have received in his or her position for the period of removal including any prior period of suspension without pay, less the amount of any unemployment insurance benefits he may have received during such period.*
Thus mitigation is not a factor as even if the individual obtains employment after being discharged, any monies earned thereby would not be considered in determining the amount of compensation to be paid as back salary upon reinstatement -- only unemployment insurance benefits are to be considered in determining the back salary due upon reinstatement.
* This is an unpublished opinion. A court may not prohibit or restrict the citation of federal judicial opinions, orders, judgments, or other written dispositions that have been (i) designated as "unpublished," "not for publication," "non-precedential," "not precedent," or the like; and (ii) issued on or after January 1, 2007.
** Sections 76 and 77 of the Civil Service Law originally provided for an adjustment in consideration of earnings received from other sources, thereby implying a duty to mitigate damages. Chapter 710 of the Law of 1984 deleted the phrase compensation which he may have earned in any other employment or occupation.... from the law.
Overturning disability retirement decisions
Overturning disability retirement decisions
Guidal v Trustees of the NYC Fire Department Article 1-B Fund, 275 AD2d 458
The Guidal decision by the Appellate Division demonstrates the difficult test that a claimant faces in attempting to have a court overturn a decision by the trustees of a pension fund denying his or her application for accidental disability retirement benefits.
William Guidal, a New York City firefighter, applied for accidental disability retirement benefits. The Trustees, by a tie vote, disapproved his application for accidental retirement benefits but approved him for ordinary disability retirement benefits.
Guidal’s appeal was rejected by the Appellate Division. The court observed that:
Where the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund ... denies an application for accidental disability benefits as a consequence of a tie vote, the Board’s determination can be set aside on judicial review only if it can be concluded as a matter of law that the petitioner’s disability was the natural and proximate result of a service-related injury.
The test applied in such cases by the courts: the courts may intervene only where it finds that circumstances allow but one inference with respect to the cause of the disability. In such situations the court may determine the conclusion to be drawn from the inference under the circumstances. In other words, it may decide whether or not the Trustee’s inference and conclusion was correct.
In contrast, where there is a difference of expert medical opinion as to the cause of the disability, the Trustees’ determination must be sustained if supported by substantial evidence.
Accordingly, if there is any credible evidence that the disability was not caused by service-related injuries supporting the Trustee’s determination, that determination must stand.*
In Guidal’s situation, said the court, Guidal failed to establish, as a matter of law, a causal connection between his line-of-duty accidents and his disabling condition since the medical evidence permitted more than one inference to be drawn as to the cause of his disabling condition.
Applying the single inference test, the Appellate Division held that there was no basis to disturb the Trustee’s decision.
* The State Comptroller is the sole trustee of the New York State Employees’ Retirement System. Presumably the same analysis would be applied in cases where his determination concerning approving an application for accidental or duty-related disability benefits is at issue.
Guidal v Trustees of the NYC Fire Department Article 1-B Fund, 275 AD2d 458
The Guidal decision by the Appellate Division demonstrates the difficult test that a claimant faces in attempting to have a court overturn a decision by the trustees of a pension fund denying his or her application for accidental disability retirement benefits.
William Guidal, a New York City firefighter, applied for accidental disability retirement benefits. The Trustees, by a tie vote, disapproved his application for accidental retirement benefits but approved him for ordinary disability retirement benefits.
Guidal’s appeal was rejected by the Appellate Division. The court observed that:
Where the Board of Trustees of the New York City Fire Department, Article 1-B Pension Fund ... denies an application for accidental disability benefits as a consequence of a tie vote, the Board’s determination can be set aside on judicial review only if it can be concluded as a matter of law that the petitioner’s disability was the natural and proximate result of a service-related injury.
The test applied in such cases by the courts: the courts may intervene only where it finds that circumstances allow but one inference with respect to the cause of the disability. In such situations the court may determine the conclusion to be drawn from the inference under the circumstances. In other words, it may decide whether or not the Trustee’s inference and conclusion was correct.
In contrast, where there is a difference of expert medical opinion as to the cause of the disability, the Trustees’ determination must be sustained if supported by substantial evidence.
Accordingly, if there is any credible evidence that the disability was not caused by service-related injuries supporting the Trustee’s determination, that determination must stand.*
In Guidal’s situation, said the court, Guidal failed to establish, as a matter of law, a causal connection between his line-of-duty accidents and his disabling condition since the medical evidence permitted more than one inference to be drawn as to the cause of his disabling condition.
Applying the single inference test, the Appellate Division held that there was no basis to disturb the Trustee’s decision.
* The State Comptroller is the sole trustee of the New York State Employees’ Retirement System. Presumably the same analysis would be applied in cases where his determination concerning approving an application for accidental or duty-related disability benefits is at issue.
Past practice - paying for health insurance premiums
Past practice - paying for health insurance premiums
Matter of Ulster County Local 856, 33 PERB 4584
Local 856 filed an improper practice charge with PERB contending that the Town of Shawangunk violated Section 209-a.1(d) of the Civil Service Law when it unilaterally changed the long-standing practice of paying health insurance premiums for unit members after their retirement.
Notwithstanding the Local’s allegation, PERB Administrative Law Judge Gordon R. Mayo found that only two employees who would have been included within the existing negotiating unit had retired -- one in 1978 and the other in 1980 -- were provided with fully paid health insurance by the Town upon their retirement.
Both employees, however, retired prior Local 856 being recognized as the collective bargaining agent for the unit in 1984. Also noted was the fact that no unit member has retired since 1984. In contrast, when a Town employee who was not in the negotiating unit retired in 1992, the town board adopted a resolution allowing this retiree to purchase health insurance on the Town’s policy at his own expense.
Essentially the Local argued that a past practice existed while the Town disagreed. In support of its position it contended that in 1997 it suggested to a CSEA Labor Relations specialist that the topic should be discussed during the next round of collective bargaining by the parties.
Based on this record, Mayo ruled that “[b]ecause of the equivocal nature of the evidence contained within the stipulation of facts, I cannot find that a past practice ever existed within the Town regarding retiree health insurance.”
Matter of Ulster County Local 856, 33 PERB 4584
Local 856 filed an improper practice charge with PERB contending that the Town of Shawangunk violated Section 209-a.1(d) of the Civil Service Law when it unilaterally changed the long-standing practice of paying health insurance premiums for unit members after their retirement.
Notwithstanding the Local’s allegation, PERB Administrative Law Judge Gordon R. Mayo found that only two employees who would have been included within the existing negotiating unit had retired -- one in 1978 and the other in 1980 -- were provided with fully paid health insurance by the Town upon their retirement.
Both employees, however, retired prior Local 856 being recognized as the collective bargaining agent for the unit in 1984. Also noted was the fact that no unit member has retired since 1984. In contrast, when a Town employee who was not in the negotiating unit retired in 1992, the town board adopted a resolution allowing this retiree to purchase health insurance on the Town’s policy at his own expense.
Essentially the Local argued that a past practice existed while the Town disagreed. In support of its position it contended that in 1997 it suggested to a CSEA Labor Relations specialist that the topic should be discussed during the next round of collective bargaining by the parties.
Based on this record, Mayo ruled that “[b]ecause of the equivocal nature of the evidence contained within the stipulation of facts, I cannot find that a past practice ever existed within the Town regarding retiree health insurance.”
Dec 24, 2010
Governor Paterson issues pardons to the benefit of 24 individuals subject to deportation as a result of a criminal conviction in the past
Governor Paterson issues pardons to the benefit of 24 individuals subject to deportation as a result of a criminal conviction in the past
Source: Office of the Governor
On December 24, 2010,Governor David A. Paterson today announced that he has issued pardons to the 24 individuals listed below otherwise subject to deportation as a result of prior criminal convictions. The Governor said:
"Over the course of my Administration's review of more than 1,100 pardon applications it became abundantly clear that the Federal government's immigration laws are often excessively harsh and in need of modernization," Governor Paterson said. "The individuals pardoned today committed past offenses but paid their debt to society. They now make positive contributions to our State and nation, and I believe they should be protected from inflexible and misguided immigration statutes."
In May 2010, Governor Paterson created a special Immigration Pardon Panel, comprised of members of the his staff and his counsel's office, to collect information and provide recommendations on pardons for deserving individuals to assist them in avoiding deportation.
The initiative was designed to address and counter aspects of the immigration laws that may result in inflexible and unjust decisions to remove legal immigrants from the United States, often tearing them away from their children and spouses. In many of these cases, the individual's efforts toward rehabilitation, their years of living a law-abiding life in the community and their positive contributions to society have not been considered by Immigration and Customs Enforcement (ICE) in the decision to deport.
One harshness of the Federal law results from retroactive changes made in the mid-1990s, whereby crimes that did not previously carry the consequence of deportation were made deportable. In many other cases, individuals previously had pled guilty without being aware that their plea might subject them to mandatory deportation. As a result, many individuals who were convicted many years ago are now facing deportation, often after they apply for citizenship or seek to renew their permanent resident status. Additionally, individuals may face deportation to a country they left as a child, where they now have no relatives, may not speak the language and have no place to live or means to support themselves.
"That our Federal government does not credit rehabilitation, nor account for human suffering is antithetical to the ideals this country represents. With these pardons, I have selected cases that exemplify the values of New York State and any civilized society: atonement, forgiveness, compassion, and the need to achieve justice, and not simply strict adherence to unjust statutes. I will not turn my back on New Yorkers who enrich our lives and care for those who suffer," Governor Paterson concluded.
The individuals who received pardons from the Governor include:
• Tressan Allen, in 2002, was convicted of Attempted Criminal Possession of Marijuana in the Fourth Degree, a class B misdemeanor. She is married to an active duty U.S. Army Specialist who is currently stationed in Germany and will be deployed for his second tour of duty in Afghanistan in February.
• Luz Marina Camacho was convicted of drug sale and possession crimes in 1983. She was sentenced to 15 years to life in prison, but Governor Mario Cuomo commuted her sentence in 1991. Since her release, U.S. Immigration and Customs Enforcement has permitted her to remain in the United States under a "deferred action," which will expire in February 2011.
• Ian Carter pled guilty to Attempted Criminal Sale of Stolen Property in the Third Degree in 1994 and was sentenced to five years on probation. He has demonstrated his rehabilitation by receiving an Associates and a Bachelors Degree, maintaining gainful employment and serving his community by participating in charitable activities. A pardon will remove the basis for his deportation.
• Edouard Colas was brought to the United States from Haiti as a lawful permanent resident at age 10. He was convicted in 1997 of Attempted Burglary in the Third Degree and sentenced to five years on probation. He has maintained gainful employment and is married to a United States citizen with whom he has two young sons. The pardon will remove the basis for his deportation.
• Lucila Cruz has been a lawful permanent resident of the United States since 1992. She was convicted of Attempted Grand Larceny in the Third Degree in 1996, and was sentenced to a conditional discharge. Many supporters, including her employer, have commended her for the care she provides to her severely disabled son. The pardon should remove all grounds for her deportation.
• Vijay Dandapani was pardoned for a 1993 conviction of first-degree grand larceny, for which he served a one-to three year sentence. He cooperated with the prosecution, including providing essential testimony at the trial of his accomplices. A pardon will prevent his deportation, allowing him to remain in the United States with his wife, who is a citizen, and two children.
• Neil Drew has been a lawful permanent resident of the United States since he was 10 years old. He was convicted of third-degree grand larceny in 1998, for which he served a one-to-three year sentence and made restitution. He has earned a Bachelors Degree from the School of Visual Arts in New York City and has been gainfully employed as a graphic designer. His two brothers serve in the U.S. military. The pardon should fully resolve his immigration problems.
• Carol Hamilton, now a Reverend was convicted of two class A misdemeanors of Criminal Possession of Marijuana in the Fourth Degree in 1995 and 1986, for which he was sentenced to a conditional discharge and a fine, respectively. He has now earned a Bachelors and a Masters Degree and works as an ordained minister, counseling youth, ex-offenders and people living with HIV/AIDS. A pardon should assist him in fighting his deportation, allowing him to remain in the United States with his wife and three young children.
• Olusegun Ola Johnson, a lawful permanent resident since 1991, was convicted of three counts of second-degree forgery and one count of third-degree grand larceny in 1990, for which he was sentenced to five years of probation. He has had no further contacts with the criminal justice system, and is now an ordained deacon, who is married to a citizen and is the father of four children.
• Walter Mills, now 60-years-old, was convicted of attempted possession of a firearm in 1973 and was sentenced to a conditional discharge. In the 37 years since this conviction, he has had no other contact with the criminal justice system. He now works full time and cares for his 82-year-old mother. The pardon will be considered a favorable discretionary factor if he is ever placed in deportation proceedings.
• Pedro Montesquieu was convicted in 2000 of attempted Criminal Sale of a Controlled Substance in the Third degree and was sentenced to five years on probation. Montesquieu runs his own business, and is the father of three young children, two of whom suffer from severe and life-threatening illnesses. The pardon should enable Montesquieu to re-open his immigration proceedings and would make him eligible to seek cancellation of removal but because he was convicted of a controlled substance offense, it will not guarantee that he will be permitted to remain in the United States.
Governor Paterson, commenting on this particular case, said: "At a later date, we may have a clearer idea of the impact that a pardon will have for persons with controlled substance convictions who are fighting deportation, but I am granting this pardon for humanitarian reasons because of the sorrowful multiple tragedies that may beset this family."
• Francisco Moya de Leon, who has been a lawful permanent resident of the United States since 1988, was convicted in 1994, of fourth-degree criminal possession of a controlled substance for which he served five years on probation. He is married to a citizen, and his son serves as a police officer in New York City. Moya de Leon is now facing removal as an inadmissible alien because he left the country three times after he was convicted, despite the fact that he has been a lawful permanent resident for 22 years and was re-admitted to the United States after each trip outside the country. Governor Paterson granted the pardon to assist Moya de Leon in overcoming the unfairness of the U.S. Customs and Immigration Services decision.
• Frances Novoa, who is now 63 years old, is being threatened with removal for attempted petit larceny convictions from 1984 and 1974, for which she was sentenced to a conditional discharge. Novoa is gainfully employed, and provides stability to one of her daughters and three of her grandchildren, who would suffer a serious disruption of their lives and extreme emotional harm if she were to be deported.
• Angela Parker was brought to the United States at age four. When her father was killed when Parker was 11 years old she was kicked out of her home and, along with her 16-year-old sister, forced to live on the streets and endure years of abuse and violence. During these tumultuous years, she was convicted, in 1989, of two counts of third-degree criminal sale of a controlled substance and one count of first-degree assault and was sentenced to 1½ to 4½ years in State prison. For the last 17 years, she has raised her oldest son, who served in the U.S. Army, and is now desperate to remain in the United States so that she may help her two younger children have a better life than she had.
• Juan P. Ramirez, who was then the owner of a bodega, was convicted in 2003 of two misdemeanors. Since these convictions, he has been gainfully employed, supporting his wife and children. He has been an active member of his community who has devoted himself to helping others. The pardon should remove all grounds of deportability and allow him to have his green card restored.
• Laurenton Rhodon has been a lawful permanent resident of the United States for twenty years, but now faces removal as a result of a 1995 conviction for Attempted Criminal Possession of a Controlled Substance in the Third Degree, for which he was sentenced to five years probation. Rhodon has sole custody of his 12-year-old daughter. The pardon will make him eligible to seek cancellation of removal, but because he was convicted of a controlled substance offense, there is no guarantee that he will be permitted to remain in the United States.
• Fredy C. Rojas, a veteran of the U.S. Army and after having served our country for 8 years, is deportable as a result of a single misdemeanor drug possession conviction in 1995. Since that time, he has completed drug treatment and, together with his wife, who is a citizen, he is raising his 7-year-old daughter and working as a truck driver.
• Jose Sanchez was granted lawful permanent resident status in 1998, even though he disclosed to immigration officials that he had been convicted in 1989 of fifth-degree criminal possession of a controlled substance and sentenced to five years on probation. Eleven years later, after Sanchez has built a stable life in New York, Immigration and Customs Enforcement is seeking to deport him for that same conviction.
• Melbourne Sinclair has been a lawful permanent resident of the United States since 1986. He was convicted in 1990 of the misdemeanor offense of fourth-degree criminal sale of marijuana and sentenced to a fine. As many permanent residents do, he applied for naturalization, unaware that he was ineligible as a result of his conviction, and he now faces the likelihood of being placed in deportation proceedings. If removed, he would be torn from his wife, who is a citizen, and sons, who would likely be unable to continue their college attendance without their father's support and assistance. If he is placed in proceedings, the pardon will make Sinclair eligible seek cancellation of removal, but will not guarantee that he will be permitted to remain in the United States.
• Eligio Valerio has resided in the United States since 1982, but was recently the subject of immigration proceedings based on a 1986 conviction for fifth-degree criminal sale of a controlled substance and a 1988 conviction for fourth-degree criminal possession of a weapon. In the 22 years since his conviction, Valerio has been gainfully employed, has raised a family and has had no further contact with the criminal justice system. The pardon will make him eligible for cancellation of removal.
Included in the group pardoned by Governor Paterson are four individuals who, due to retroactive changes to the immigration laws, would have been subject to deportation.
These individuals were all convicted of offenses that did not initially carry the penalty of deportation, though that was changed due to subsequent legislation. Those pardoned include:
• Salvador Gonzalez was convicted of first-degree assault in 1975, for which he served a one to three year sentence in State prison. He has had no involvement with the criminal justice system in the 35-years since his conviction, and is now a small-business owner who takes care of his elderly parents and his young son. Gonzalez has been hampered in his efforts to prevent his removal, because retroactively-effective changes in the immigration laws in the 1990s made him ineligible for cancellation of removal – a form of relief that was available to him at the time of his conviction.
• Engels R. Guzman, a lawful permanent resident of the United States since age 15, was convicted of second-degree robbery in 1990, when he was 16 years old. After his release from prison, he worked in the family supermarket business, married and is the father of four young children. He too has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.
• Jose Palma has been a lawful permanent resident of the United States since 1971, but faces deportation as a result of a first-degree reckless endangerment conviction from 1978, for which he served 60 days in jail and five years on probation. He has lived an exemplary life during the 30 years since he was released from parole supervision, having become a business owner and raising his three children with his wife of over 30 years. Like Gonzalez and Guzman, he has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.
• Randy Valentin De La Cruz has been a lawful permanent resident since the age of 13, but now faces removal to an unfamiliar country as a result of a 1984 conviction for first-degree assault, for which he was sentenced to 1½ to 4½ years in prison. In the 26 years since this conviction, De La Cruz and his wife have raised their two children, one of whom has served in the U.S. Navy for the last 11 years. Like other pardon recipients, retroactive changes in the immigration laws have made De La Cruz ineligible for cancellation of removal. The pardon should eliminate all grounds for deportability.
Source: Office of the Governor
On December 24, 2010,Governor David A. Paterson today announced that he has issued pardons to the 24 individuals listed below otherwise subject to deportation as a result of prior criminal convictions. The Governor said:
"Over the course of my Administration's review of more than 1,100 pardon applications it became abundantly clear that the Federal government's immigration laws are often excessively harsh and in need of modernization," Governor Paterson said. "The individuals pardoned today committed past offenses but paid their debt to society. They now make positive contributions to our State and nation, and I believe they should be protected from inflexible and misguided immigration statutes."
In May 2010, Governor Paterson created a special Immigration Pardon Panel, comprised of members of the his staff and his counsel's office, to collect information and provide recommendations on pardons for deserving individuals to assist them in avoiding deportation.
The initiative was designed to address and counter aspects of the immigration laws that may result in inflexible and unjust decisions to remove legal immigrants from the United States, often tearing them away from their children and spouses. In many of these cases, the individual's efforts toward rehabilitation, their years of living a law-abiding life in the community and their positive contributions to society have not been considered by Immigration and Customs Enforcement (ICE) in the decision to deport.
One harshness of the Federal law results from retroactive changes made in the mid-1990s, whereby crimes that did not previously carry the consequence of deportation were made deportable. In many other cases, individuals previously had pled guilty without being aware that their plea might subject them to mandatory deportation. As a result, many individuals who were convicted many years ago are now facing deportation, often after they apply for citizenship or seek to renew their permanent resident status. Additionally, individuals may face deportation to a country they left as a child, where they now have no relatives, may not speak the language and have no place to live or means to support themselves.
"That our Federal government does not credit rehabilitation, nor account for human suffering is antithetical to the ideals this country represents. With these pardons, I have selected cases that exemplify the values of New York State and any civilized society: atonement, forgiveness, compassion, and the need to achieve justice, and not simply strict adherence to unjust statutes. I will not turn my back on New Yorkers who enrich our lives and care for those who suffer," Governor Paterson concluded.
The individuals who received pardons from the Governor include:
• Tressan Allen, in 2002, was convicted of Attempted Criminal Possession of Marijuana in the Fourth Degree, a class B misdemeanor. She is married to an active duty U.S. Army Specialist who is currently stationed in Germany and will be deployed for his second tour of duty in Afghanistan in February.
• Luz Marina Camacho was convicted of drug sale and possession crimes in 1983. She was sentenced to 15 years to life in prison, but Governor Mario Cuomo commuted her sentence in 1991. Since her release, U.S. Immigration and Customs Enforcement has permitted her to remain in the United States under a "deferred action," which will expire in February 2011.
• Ian Carter pled guilty to Attempted Criminal Sale of Stolen Property in the Third Degree in 1994 and was sentenced to five years on probation. He has demonstrated his rehabilitation by receiving an Associates and a Bachelors Degree, maintaining gainful employment and serving his community by participating in charitable activities. A pardon will remove the basis for his deportation.
• Edouard Colas was brought to the United States from Haiti as a lawful permanent resident at age 10. He was convicted in 1997 of Attempted Burglary in the Third Degree and sentenced to five years on probation. He has maintained gainful employment and is married to a United States citizen with whom he has two young sons. The pardon will remove the basis for his deportation.
• Lucila Cruz has been a lawful permanent resident of the United States since 1992. She was convicted of Attempted Grand Larceny in the Third Degree in 1996, and was sentenced to a conditional discharge. Many supporters, including her employer, have commended her for the care she provides to her severely disabled son. The pardon should remove all grounds for her deportation.
• Vijay Dandapani was pardoned for a 1993 conviction of first-degree grand larceny, for which he served a one-to three year sentence. He cooperated with the prosecution, including providing essential testimony at the trial of his accomplices. A pardon will prevent his deportation, allowing him to remain in the United States with his wife, who is a citizen, and two children.
• Neil Drew has been a lawful permanent resident of the United States since he was 10 years old. He was convicted of third-degree grand larceny in 1998, for which he served a one-to-three year sentence and made restitution. He has earned a Bachelors Degree from the School of Visual Arts in New York City and has been gainfully employed as a graphic designer. His two brothers serve in the U.S. military. The pardon should fully resolve his immigration problems.
• Carol Hamilton, now a Reverend was convicted of two class A misdemeanors of Criminal Possession of Marijuana in the Fourth Degree in 1995 and 1986, for which he was sentenced to a conditional discharge and a fine, respectively. He has now earned a Bachelors and a Masters Degree and works as an ordained minister, counseling youth, ex-offenders and people living with HIV/AIDS. A pardon should assist him in fighting his deportation, allowing him to remain in the United States with his wife and three young children.
• Olusegun Ola Johnson, a lawful permanent resident since 1991, was convicted of three counts of second-degree forgery and one count of third-degree grand larceny in 1990, for which he was sentenced to five years of probation. He has had no further contacts with the criminal justice system, and is now an ordained deacon, who is married to a citizen and is the father of four children.
• Walter Mills, now 60-years-old, was convicted of attempted possession of a firearm in 1973 and was sentenced to a conditional discharge. In the 37 years since this conviction, he has had no other contact with the criminal justice system. He now works full time and cares for his 82-year-old mother. The pardon will be considered a favorable discretionary factor if he is ever placed in deportation proceedings.
• Pedro Montesquieu was convicted in 2000 of attempted Criminal Sale of a Controlled Substance in the Third degree and was sentenced to five years on probation. Montesquieu runs his own business, and is the father of three young children, two of whom suffer from severe and life-threatening illnesses. The pardon should enable Montesquieu to re-open his immigration proceedings and would make him eligible to seek cancellation of removal but because he was convicted of a controlled substance offense, it will not guarantee that he will be permitted to remain in the United States.
Governor Paterson, commenting on this particular case, said: "At a later date, we may have a clearer idea of the impact that a pardon will have for persons with controlled substance convictions who are fighting deportation, but I am granting this pardon for humanitarian reasons because of the sorrowful multiple tragedies that may beset this family."
• Francisco Moya de Leon, who has been a lawful permanent resident of the United States since 1988, was convicted in 1994, of fourth-degree criminal possession of a controlled substance for which he served five years on probation. He is married to a citizen, and his son serves as a police officer in New York City. Moya de Leon is now facing removal as an inadmissible alien because he left the country three times after he was convicted, despite the fact that he has been a lawful permanent resident for 22 years and was re-admitted to the United States after each trip outside the country. Governor Paterson granted the pardon to assist Moya de Leon in overcoming the unfairness of the U.S. Customs and Immigration Services decision.
• Frances Novoa, who is now 63 years old, is being threatened with removal for attempted petit larceny convictions from 1984 and 1974, for which she was sentenced to a conditional discharge. Novoa is gainfully employed, and provides stability to one of her daughters and three of her grandchildren, who would suffer a serious disruption of their lives and extreme emotional harm if she were to be deported.
• Angela Parker was brought to the United States at age four. When her father was killed when Parker was 11 years old she was kicked out of her home and, along with her 16-year-old sister, forced to live on the streets and endure years of abuse and violence. During these tumultuous years, she was convicted, in 1989, of two counts of third-degree criminal sale of a controlled substance and one count of first-degree assault and was sentenced to 1½ to 4½ years in State prison. For the last 17 years, she has raised her oldest son, who served in the U.S. Army, and is now desperate to remain in the United States so that she may help her two younger children have a better life than she had.
• Juan P. Ramirez, who was then the owner of a bodega, was convicted in 2003 of two misdemeanors. Since these convictions, he has been gainfully employed, supporting his wife and children. He has been an active member of his community who has devoted himself to helping others. The pardon should remove all grounds of deportability and allow him to have his green card restored.
• Laurenton Rhodon has been a lawful permanent resident of the United States for twenty years, but now faces removal as a result of a 1995 conviction for Attempted Criminal Possession of a Controlled Substance in the Third Degree, for which he was sentenced to five years probation. Rhodon has sole custody of his 12-year-old daughter. The pardon will make him eligible to seek cancellation of removal, but because he was convicted of a controlled substance offense, there is no guarantee that he will be permitted to remain in the United States.
• Fredy C. Rojas, a veteran of the U.S. Army and after having served our country for 8 years, is deportable as a result of a single misdemeanor drug possession conviction in 1995. Since that time, he has completed drug treatment and, together with his wife, who is a citizen, he is raising his 7-year-old daughter and working as a truck driver.
• Jose Sanchez was granted lawful permanent resident status in 1998, even though he disclosed to immigration officials that he had been convicted in 1989 of fifth-degree criminal possession of a controlled substance and sentenced to five years on probation. Eleven years later, after Sanchez has built a stable life in New York, Immigration and Customs Enforcement is seeking to deport him for that same conviction.
• Melbourne Sinclair has been a lawful permanent resident of the United States since 1986. He was convicted in 1990 of the misdemeanor offense of fourth-degree criminal sale of marijuana and sentenced to a fine. As many permanent residents do, he applied for naturalization, unaware that he was ineligible as a result of his conviction, and he now faces the likelihood of being placed in deportation proceedings. If removed, he would be torn from his wife, who is a citizen, and sons, who would likely be unable to continue their college attendance without their father's support and assistance. If he is placed in proceedings, the pardon will make Sinclair eligible seek cancellation of removal, but will not guarantee that he will be permitted to remain in the United States.
• Eligio Valerio has resided in the United States since 1982, but was recently the subject of immigration proceedings based on a 1986 conviction for fifth-degree criminal sale of a controlled substance and a 1988 conviction for fourth-degree criminal possession of a weapon. In the 22 years since his conviction, Valerio has been gainfully employed, has raised a family and has had no further contact with the criminal justice system. The pardon will make him eligible for cancellation of removal.
Included in the group pardoned by Governor Paterson are four individuals who, due to retroactive changes to the immigration laws, would have been subject to deportation.
These individuals were all convicted of offenses that did not initially carry the penalty of deportation, though that was changed due to subsequent legislation. Those pardoned include:
• Salvador Gonzalez was convicted of first-degree assault in 1975, for which he served a one to three year sentence in State prison. He has had no involvement with the criminal justice system in the 35-years since his conviction, and is now a small-business owner who takes care of his elderly parents and his young son. Gonzalez has been hampered in his efforts to prevent his removal, because retroactively-effective changes in the immigration laws in the 1990s made him ineligible for cancellation of removal – a form of relief that was available to him at the time of his conviction.
• Engels R. Guzman, a lawful permanent resident of the United States since age 15, was convicted of second-degree robbery in 1990, when he was 16 years old. After his release from prison, he worked in the family supermarket business, married and is the father of four young children. He too has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.
• Jose Palma has been a lawful permanent resident of the United States since 1971, but faces deportation as a result of a first-degree reckless endangerment conviction from 1978, for which he served 60 days in jail and five years on probation. He has lived an exemplary life during the 30 years since he was released from parole supervision, having become a business owner and raising his three children with his wife of over 30 years. Like Gonzalez and Guzman, he has been hampered by retroactive changes in the immigration law that now made him ineligible for cancellation of removal.
• Randy Valentin De La Cruz has been a lawful permanent resident since the age of 13, but now faces removal to an unfamiliar country as a result of a 1984 conviction for first-degree assault, for which he was sentenced to 1½ to 4½ years in prison. In the 26 years since this conviction, De La Cruz and his wife have raised their two children, one of whom has served in the U.S. Navy for the last 11 years. Like other pardon recipients, retroactive changes in the immigration laws have made De La Cruz ineligible for cancellation of removal. The pardon should eliminate all grounds for deportability.
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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.
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