Early intervention counseling

Early intervention counseling

Tatum v Horn, 37 AD3d 285

Wayne Tatum appealed his dismissal from his position as a New York City correction office after being found guilty of a number of allegations of misconduct.

The Appellate Division ruled that the New York City Department of Correction presented ample evidence at Tatum’s disciplinary hearing proving allegations that he had violated numerous departmental rules.

Tatum had been charged with being AWOL on multiple occasions, failing to sign-out of the correctional facility to which he was assigned, failing to contact his superiors when required, and insubordination by failing to obey a supervisor’s order. 

In response to Tatum’s argument that the Department had not sent him to an “early intervention counseling program”, the court said that “Correction was not obliged to send him to its early intervention counseling program, a program that is discretionary, not mandatory.” In addition, the Appellate Division commented that “the value of such counseling would have been questionable in light of [Tatum’s] long disciplinary history."

In a similar case, Carroll v Perkle, 296 AD2d 755,  Leave to appeal denied 98 NY2d 764, one of the issues considered by the court concerned “intervention counseling programs.” 

The Appellate Division ruled that Carroll had been denied administrative due process because the Education Law Section 3020-a Hearing Panel failed to consider “mitigating circumstances” in determining the penalty. 

The Appellate Division said that the Hearing Panel failed to honor Carroll’s request that the Board of Education’s “lack of effort to correct his behavior,” be considered by the panel in determining the appropriate penalty to be imposed. §3020-a(4) of the Education Law provides that “At the request of the employee, in determining what, if any, penalty or other action shall be imposed, the hearing officer shall consider the extent to which the employing board made efforts towards correcting the behavior of the employee which resulted in charges being brought under this section through means including, but not limited to, remediation, peer intervention or an employee assistance plan.”

The decision is posted on the Internet at: 

http://nypublicpersonnellawarchives.blogspot.com/

.

State Comptroller report concluded that the use of local development corporations out of control Source: Office of the State Comptroller

State Comptroller report concluded that the use of local development corporations out of control
Source: Office of the State Comptroller

Citing an on-going pattern of abuse, State Comptroller Thomas P. DiNapoli today proposed a package of reform proposals that would limit local governments’ use of local development corporations (LDCs) and other private entities such as limited liability companies (LLCs).

The suggested reforms would also give the State Comptroller direct audit authority over LDCs, LLCs and similar entities controlled by local governments.

LDCs were originally intended to allow New York's counties, cities, towns, and villages to utilize these entities for economic development purposes and to promote employment opportunities.  Because many activities undertaken by LDCs are exempt from taxation, they are used to construct or rehabilitate industrial or manufacturing plants or to    encourage such businesses to relocate or remain in a particular region.

However, said the Comptroller, current law includes loopholes that allow LDCs to be used for purposes beyond the original intention.

DiNapoli cited several instances in which the use of LDCs and LLCs unnecessarily drove up taxpayer costs, including the use of an LLC by the city of Rochester to purchase a ferry that ended up costing taxpayers nearly $20 million.

The Comptroller’s report, Municipal Use of Local Development Corporations and Other Private Entities is posted on the Internet at:
http://www.osc.state.ny.us/localgov/pubs/research/ldcreport.pdf

Other items from the Comptroller's press office available on the Internet include:

DiNapoli: 101 School Districts Request Surplus Certifications to Use Funds to Make Up State Aid Cuts

State Comptroller Thomas P. DiNapoli’s office today certified the amounts of excess Employee Benefits Accrued Liability Reserve funds (EBALR) held by 95 school districts across the state that can be used by the districts in the 2011-12 school year to make up for $190.6 million in state aid cuts. DiNapoli’s review found the districts’ excess EBALR funds total $148.2 million.


DiNapoli's Office Releases School Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: the Auburn Enlarged City School District; the Malone Central School District; the Schalmont Central School District; and, the Waterloo Central School District.


DiNapoli's Office Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: Village of Akron; the Town of Malta; the Village of Endicott; the Town of Trenton; the Smithtown Special Library District; the Village of Lancaster; the Village of Irvington; the Village of Centre Island; the Bellona Fire District; and an audit on Saving Money on Nursing Home Drug Purchases for various counties.


DiNapoli's Office Releases State Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: the Beacon City School District; Department of Health, Medicaid Payments for Diabetic Testing Supplies (Follow-Up) (2010-F-42) and, Department of Health, Inappropriate Payments for Vision Care Services Claimed by Dr. Horowitz (Follow-Up) (2010-F-47).
.

.

Unfair labor practices - protected activities

Unfair labor practices - protected activities

CSEA Local 1000 v PERB, 267 AD2d 935

CSEA appealed a determination by the New York State Public Employment Relations Board [PERB] that the Holbrook Fire District did not commit an improper employer practice when it disciplined one of its employees, Jason Feinberg.

The district had filed eight charges against Feinberg, a firehouse attendant, alleging misconduct and, or, incompetence pursuant to Section 75 of the Civil Service Law.

Feinberg was alleged to have “permitted unauthorized personnel in his work area, participated in inappropriate activities during work hours, failed to timely complete certain work assignments and follow standard operating procedures in performing certain work-related activities.”

CSEA filed an improper employer practice charge against the district pursuant to Civil Service Law Section 209-a with PERB on behalf of Feinberg. CSEA contended that the district had filed disciplinary charges against Feinberg “in retaliation for his efforts at organizing a union.”

While CSEA’s charges were pending before PERB, the disciplinary hearing officer issued a report and recommendation finding Feinberg guilty of six of the charges. The penalty recommended by the hearing officer: Feinberg should be terminated from his employment. The District accepted the hearing officer’s findings and recommendations and dismissed Feinberg.

CSEA and the district stipulated that rather than holding a separate hearing, the record of the proceedings conducted in connection with the disciplinary charges would be used by PERB’s Administrative Law Judge (ALJ) in resolving the improper practice charge. Finding that other employees who had engaged in similar misconduct had not been disciplined by the district, the ALJ ruled that the district “had committed an improper practice by discharging Feinberg in retaliation for protected union activities.” PERB reversed its ALJ’s ruling.

PERB said that “the ALJ should have deferred to the findings of the hearing officer that the charges against Feinberg were brought by the District for proper business reasons and not to retaliate against him for his organizing activities”.

The Appellate Division initiated its review of CSEA’s appeal from PERB’s ruling by noting that “the relevant inquiry in a proceeding pursuant to Civil Service Law Section 75 is very different than that in an improper practice proceeding under Civil Service Law Section 209-a.” The court, citing City of Albany v Public Employment Relations Board, 43 NY2d 954, said:

1. In considering an appeal involving Section 75, the focus is upon whether there was cause for the employee’s dismissal.

2. In considering an appeal involving Section 209-a, the focus it is whether the employer‘s action was motivated by anti-union animus and “it is irrelevant ... whether or not cause for the employer’s action in terminating [the employee] actually existed.”

The Appellate Division said that PERB relied upon its policy of deference and the disciplinary hearing officer’s determination when it reversed ALJ’s determination.

However, said the court, its review of the decision in the Section 75 proceeding indicates that the disciplinary hearing officer “did not fully consider the dispositive issue in the improper practice proceeding, i.e., whether Feinberg’s firing was improperly motivated.” Accordingly, the Appellate Division said that “PERB’s deference to the [Section 75] Hearing Officer’s findings as the sole basis in resolving the improper practice charge was inappropriate.”

The Appellate Division annulled PERB’s determination and remanded the case to PERB “for an independent review of the ALJ’s decision of [CSEA’s] improper practice charge in light of all the evidence contained in the record of the Civil Service Section 75 proceeding.”

Extending the probationary period of an individual

Extending the probationary period of an individual

Appeal of Anne M. Christiano, Decisions of the Commissioner of Education, Commissioner’s decision No. 16,217

A “Juul Agreement” between an educator and his or her appointing authority extends the educator’s probationary period rather than terminate the educator at the end of his or her probationary period for not completing his or her probationary period satisfactorily. This is typically done in an effort to provide the educator with an opportunity to improve his or her performance and thereby become eligible for tenure in the position. Such an agreement, when “open, knowing and voluntary,” waives the educator’s right to claim tenure by estoppel.* At the end of the extended probationary period the school district may grant or deny tenure [see Juul v. Board of Educ. of Hempstead UFSD, 76 AD2d 837, affirmed, 55 N.Y.2d 648].**

Anne M. Christiano, then serving as a probationary principal, and the Johnstown City School District had entered into a Juul Agreement. At the end of the extended period of Christiano’s probation the superintendent recommended Christiano for tenure.  The school board, however, voted to reject the superintendent’s recommendation and denied Christiano tenure with the district.

Christiano, alleging that the board acted in bad faith and was arbitrary and capricious in denying her tenure, appealed to the Commissioner, asking that he overturn the school board’s tenure determination and that he remove those members of the board “who voted against granting her tenure.”

After addressing a number of procedural issues, the Commissioner said that with respect to the merits of Christiano’s claim regarding the denial of tenure, Education Law §3012(1)(b) provides that the service of a principal “may be discontinued at any time during the probationary period on the recommendation of the superintendent of schools, by a majority vote of the board of education.”  Further, said the Commissioner, “… a board of education has the unfettered right to terminate a probationary principal’s employment for any reason, unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.”

In any event, in an appeal to the Commissioner the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which petitioner seeks relief. In this instance the Commissioner ruled that while there were positive comments in the record about her administrative abilities, Christiano had not alleged or established that she was terminated for a constitutionally impermissible reason or in violation of a statutory proscription.

Accordingly, the Commissioner found that Christiano has failed to meet her burden of proof.

As to Christiano’s petition to remove certain members of the school board, the Commissioner said that she had failed to establish facts sufficient to warrant removal of the individually named board members pursuant to Education Law §306.  The Commissioner pointed out that “A member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.”

Finding that Christiano had failed to establish that the individual members of the school board named in her appeal “intentionally acted with a wrongful purpose to disregard a lawful duty or violate a legal requirement,” the Commissioner ruled that she had failed to establish any ground for their removal under Education Law §306.

* A probationary employee may attain tenure by estoppel [sometimes referred to as “tenure by acquiescence”] when the appointing authority accepts the continued services of the individual, but fails to take the action required by law to either grant or deny the individual tenure prior to the expiration of the employee’s probationary term, [see McManus v Hempstead Union Free School District, 87 NY2d 183]. Continuation on the payroll for a brief period after the expiration of a probationary period for administrative convenience, such as to coincide with the end of a payroll period, does not automatically result in the individual attaining tenure by estoppel [Mendez v Valenti, 101 AD2d 612].

** A procedure is available to the appointing authority with respect to probationers in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, provides:. 4 NYCRR 4.5(b) (5)(ii), in pertinent part, permits an appointing authority to offer a probationer deemed not to have satisfactorily completed his or her probationary period an opportunity to serve a second probationary term “in which case the appointment may be made permanent at any time after completion of 12 weeks of service, or the employment [may be] terminated at any time after the completion of 8 weeks of service and on or before the completion of 26 weeks of service.” A similar rule has been adopted by many local civil service commissions.

The Commissioner’s decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume50/d16217.htm

.

Petitioner alleging disparate treatment in violation of his or her Title VII civil rights has the initial burden of setting out a prima facie case of unlawful discrimination

Petitioner alleging disparate treatment in violation of his or her Title VII civil rights has the initial burden of setting out a prima facie case of unlawful discrimination

Wharff v State Univ. of New York, USCA, Second Circuit, 09-4534-cv

Wilfred Wharff alleged that SUNY refused to promote him from Lab Technologist to Assistant Supervisor because of his gender.

The Circuit Court said that Wharff’s disparate treatment claim pursuant to Title VII [42 USC § 2000e et seq.] was to be analyzed under the tripartite burden shifting framework laid out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, whereby Wharff has the initial burden of establishing a prima facie case of unlawful discrimination.

Citing Malave v. Potter, 320 F.3d 321, the Circuit Court said that “To make out a prima facie case of disparate impact, a plaintiff must ‘(1) identify a policy or practice, (2) demonstrate that a disparity exists, and (3) establish a causal relationship between the two.’

If he is able to do so, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason" for its actions.”

Finding that Wharff offered no evidence that SUNY applied its promotion procedures unfairly, that the collective bargaining agreement's sanctioning of the alternate hiring process was negotiated as a pretext for sex discrimination, or that the selection of alternatives was intentionally manipulated to accomplish such discrimination, the Court dismissed his appeal.

Further, said the court, “Even assuming that this establishes a prima facie case of discrimination, SUNY has offered a legitimate, nondiscriminatory reason for its promotion decisions that Wharff has failed to rebut.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/8255044e-0961-4619-a312-4a2d3aa9000d/1/doc/
. 

Denying employee sick leave bank benefits results in charges of unlawful discrimination

Denying employee sick leave bank benefits results in charges of unlawful discrimination

Cheektowaga CSD v Graziadei, 267 AD2d 985, motion for leave to appeal denied, 95 NY2d 756

A sick leave bank was created by the Cheektowaga Central School District as required by the collective bargaining agreement between district and the Teachers’ Association. Under the terms of the agreement, sick leave bank time was available only to employees incapacitated by severe sickness or injury.

Kathryn A. O. Graziadei, a guidance counselor, had used up all of her sick leave credits after being absent for four weeks and two days following the birth of her child.

Graziadei requested approval to draw three days of sick leave from the sick leave bank. Her request was disapproved by the district because it found that Graziadei did not demonstrate that she was incapacitated by a severe sickness or injury.

Graziadei filed a complaint with the New York State Division of Human Rights alleging that the district had unlawfully discriminated against her because of her gender and a pregnancy-related disability. The district appealed the Division’s ruling that it had unlawfully discriminated against Graziadei.

In reviewing the district’s appeal, the Appellate Division found that Graziadei was entitled to take advantage of the sick leave bank to the same extent as employees who are incapacitated by a medical condition other than pregnancy and recovery from childbirth.

According to the decision, Graziadei failed to present any proof that she was incapacitated by severe sickness or injury, or that her request for leave bank time was treated in a manner less liberal than those applications from employees with conditions unrelated to pregnancy and recovery from childbirth. This omission proved fatal to the Division’s determination.

The Appellate Division annulled the Division’s determination that the district had unlawfully discriminated against Graziadei on the basis of sex and a pregnancy-related disability, holding that the Division’s decision was not supported by substantial evidence.

.

Penalties imposed on police officers founds guilty of charges alleging wrongful arrest

Penalties imposed on police officers founds guilty of charges alleging wrongful arrest

Police Department v Popovic, NYC Office of Admin. Trials and Hearings, OATH Index No. 544/00

Administrative disciplinary charges may be filed against a police officer alleging that he or she made an arrest in bad faith. The Popovic decision lists some of the penalties recommended by New York City’s Office of Administrative Trials and Hearings where a police officer is found guilty of such charges.

Penalties for bad faith or retaliatory arrests range from 10 to 30 days, depending upon the degree of infringement of the civilian’s rights. Some examples follow:

1. Loss of 25 vacation days for bad faith arrest in retaliation for complainant’s vulgar retorts to the officers’ provocative behavior;

2. 30 days’ suspension and disciplinary probation for bad faith arrest and strip-search of a civilian;

3. Loss of 10 vacation days for bad faith arrest in retaliation for past incident of arrogance to officers and displaying a falsified license;

4. Loss of 15 vacation days for bad faith arrest following argument about a police report;

5. Loss of 13 vacation days for bad faith arrest after civilian attempted to record the police officer’s badge number.
.

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member

A school board member seeking the removal of another member must demonstrate willful misconduct or neglect of duty of the part of the member

Matter of Powell and Elliott, Decisions of the Commissioner of Education, Decision 16,216

Willa Powell, a member of the Board of Education of the Rochester City School District asked the Commissioner to remove another member of the board, Cynthia Elliott, alleging that Elliott had “willful and substantive disclosure of confidential information” acquired in the course of her official duties to a newspaper.

The Commissioner denied Powell’s application.

The Commissioner explained that a member of the board of education or a school officer may be removed from office pursuant to Education Law §306 when it is proven to the satisfaction of the Commissioner that the board member or school officer has engaged in a willful violation or neglect of duty under the Education Law or has willfully disobeyed a decision, order, rule or regulation of the Board of Regents or Commissioner of Education.

To be considered willful, the actions of the individual must have been intentional and with a wrongful purpose.

Here, said the Commissioner, Powell had not met her burden of proving that Elliott had engaged in behavior constituting a willful violation or neglect of duty requiring her removal from office to his satisfaction. As to the evidence advanced by Powell, the Commissioner ruled that the fact that the draft report released to the media “contains a code linked back to the copy intended for [Elliott], does not in itself prove that [Elliott] released it, much less that she intentionally released it.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume50/d16216.htm

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”

The party alleging that an individual has changed his domicile has the burden of proving such a change of the individual’s “permanent place of abode”
Matter of Gigliotti v Bianco, 2011 NY Slip Op 02206, Appellate Division, Fourth Department

The City of Niagara Falls School District terminated the employment of Vincent F. Gigliotti on the grounds that he failed to comply with the District's residency policy, which requires District employees to be domiciliaries of the City of Niagara Falls. Supreme Court properly granted the petition.

It is well established that "domicile means living in [a] locality with intent to make it a fixed and permanent home." As the Court of Appeals said in Matter of Newcomb, 192 NY 238, "For a change to a new domicile to be effected, there must be a union of residence in fact and an absolute and fixed intention to abandon the former and make the new locality a fixed and permanent home."

An individual may have but one domicile at time, i.e., his or her permanent place of abode, which continues until he or she has acquired a new one and any party alleging a change in an individual’s domicile “has the burden to prove the change by clear and convincing evidence."

In contrast, an individual may have multiple places of residence simultaneously, i.e., two or more residences in the same or at different geographical locations in which he or she may, from time to time, live, but only one such residence is his or her domicile.

According to the decision, the Gigliotti, a lifelong resident of Niagara Falls, divorced and while he was temporarily laid off from his position, remarried. Gigliotti and his wife, who owned a home in Ransomville New York, agreed that Gigliotti would continue to live in Niagara Falls with his ailing mother while his spouse would continue to live in her home in Ransomville.

The evidence considered by the Appellate Division in determining Gigliotti’s domicile included Gigliotti’s listing his Niagara Falls address on his federal income tax return forms, his New York State driver's license, his marriage certificate, and his bank and credit statements. In addition, the court noted that Gigliotti’s personal belonging remained at his residence in Niagara Falls, “although he keeps a set of golf clubs and some clothing at his wife's residence in Ransomville.”

The Appellate Division, after considering the evidence, determined that the District’s conclusion that Gigliotti had changed his domicile from Niagara Falls to Ransomville was arbitrary and capricious.

Significantly, the court commented that although the District did not conduct a hearing before terminating Gigliotti’s employment, such a hearing was not "required by statute or law," citing Colton v Berman, 21 NY2d 322 Assuming that the District had provided Gigliotti with an opportunity to show that he or she satisfied the District’s requirement regarding domicile, the problem here was that the court disagreed with the District’s conclusion that Gigliotti was not domiciled in Niagara Falls.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02206.htm
.

Protected speech vs. whistle blowing

Protected speech vs. whistle blowing

Ringle v Onondaga County, 267 AD2d 1088

The Ringle decision by the Appellate Division, Fourth Department, addresses a number of important issues concerning the limits, if any, on the right of a public employee to publicly “to blow the whistle” on his or her employer.

The court’s conclusion: a public employee’s right to “blow the whistle” on his or her employer of his or her superiors is not absolute.

David Ringle and William R. Sawyer sued Onondaga County, contending that the county had retaliated against them for “whistle blowing” in violation of (1) their Constitutional right to free speech and (2) Section 75-b of the Civil Service Law.

Both Ringle and Sawyer alleged that they were unlawfully dismissed or constructively discharged from their positions as a result of their communicating with other government agencies and the media concerning alleged inappropriate activities in the Onondaga County Laboratory (OCL) and Medical Examiner’s Office (MEO) and inappropriate conduct by their supervisor, the Onondaga County Medical Examiner.

Constitutionally protected rights

The Appellate Division first considered the Constitutional free speech and civil rights claims under 42 US 1983 advanced by Ringle and Sawyer.

After noting that “it is well established that a governmental entity may not discharge or retaliate against an employee based on that employee’s exercise of the right of free speech,” the Appellate Division pointed out that:

1. The “Pickering test” [Pickering v Board of Education, 391 US 563] is used to determine if a public employee has been unlawfully dismissed from his or her employment for “engaging in speech.” This test balances the interests of the employee, as a citizen, in commenting upon matters of public concern and the interest of the State, as an employer, in providing efficient service to the public.

2. Consideration must be given to whether the speech to which the employer objects “impairs discipline by superiors or harmony among co-workers, has a detrimental impact on close working relationships for which personal loyalty and confidence are necessary, or impedes the performance of the speaker’s duties or interferes with the regular operation of the enterprise”

3. The greater a “confidential relationship” and the “policymaking function” of the speaker, the greater the State’s interest in terminating the employee for expressions against the employer’s interests and the lesser the employee’s First Amendment rights.

According to the decision, Ringle’s and Sawyer’s comments concerning “mismanagement by the Medical Examiner and inappropriate activities in the OCL and MEO may fairly be categorized as a matter of public concern.”

The Appellate Division, however, found that both Ringle and Sawyer held positions requiring confidentiality and which involved policymaking and public contact, elements that the court determined to be mitigating factors insofar as their free speech rights were concerned.

The court concluded that given their job responsibilities, “[c]ommon sense tells us that the expressive activities of [such] highly placed supervisory, confidential, policymaking, or advisory employee[s] will be more disruptive to the operation of the workplace than similar activity by a low level employee with little authority or discretion.”

The Appellate Division held that the record established that the comments made by Ringle and Sawyer were disruptive to the operation of the workplace, created disharmony among co-workers, interfered with their working relationships with their supervisor, and affected the performance of their duties.

Given these circumstances, the court said that it concluded that terminating Ringle and Sawyer, even in retaliation for their comments to the media and other government agencies concerning the operation of the OCL and MEO, did not violate their First Amendment rights or their civil rights under 42 USC 1983.

Civil Service Law Section 75-b whistle blowing claims

In determining Ringle’s and Sawyer’s rights under Section 75-b of the Civil Service Law, different considerations were found to be controlling.

First, the Appellate Division said that lawsuits under Section 75-b sought to vindicate personal rights in contrast to efforts to vindicate a public interest.

Section 75-b prohibits a public employer from retaliating against a public employee who “blows the whistle.” Subdivision 2(a) states that a public employer shall not dismiss or take other disciplinary or other adverse personnel action involving an individual’s public employment who discloses information to a governmental body involving a threat to public health or constitutes improper governmental action.

Alleged violations of Section 75-b are typically challenged by the individual bringing an Article 78 action [Article 78, Civil Practice Law and Rules.]. In filing such a petition, said Appellate Division, the individual seeks to vindicate a private rather than a public right. What private right? The right not to be dismissed or otherwise subjected to reprisals because of his or her disclosures to other governmental agencies of the media.

This conclusion meant that both Ringle and Sawyer had fallen into a procedural trap.

The Appellate Division said that because the “Civil Service Law Section 75-b causes of action they brought sought to vindicate only the individual interests of Ringle and Sawyer, ... they were properly dismissed by the lower court because Ringle and Sawyer failed to file a notice of claim as required by Section 50-a of the General Municipal Law Section and Section 52 of the County Law.*

In addition, the court pointed out that Section 75-b does not serve as a shield against disciplinary action being taken against an employee where there is a “separate and independent basis” for discipline the individual.

Finally, the Appellate Division observed that “by commencing actions pursuant to Civil Service Law Section 75-b, Ringle and Sawyer are barred from asserting any other State law cause of action related to the alleged retaliatory discharges.”

* This ruling implies that where an individual sues a school district or BOCES claiming he or she was dismissed or subjected to punitive action in violation of Section 75-b, he or she must file a notice of claim in accordance with Section 3813(1) of the Education Law.

Reassigning a teacher to non-teaching duties

Reassigning a teacher to non-teaching duties

Taylor v Hammondsport CSD, 267 AD2d 987

May a school district assign a teacher to perform non-teaching duties against his or her will? This was the issue raised by David C. Taylor, a tenured high school science teacher.

The Hammondsport Central School District had assigned Taylor to perform nonteaching duties after he was found guilty of a number of specifications set out in disciplinary charges filed against him pursuant to Section 3020-a of the Education Law.

The hearing officer found Taylor guilty of portions of two charges filed against him. The penalty imposed: a $1,000 fine. However, the hearing officer in setting the penalty to be imposed did not provide for any remedial action.*

Taylor objected to his reassignment to non-teaching duties, contending that the assignment to such duties constitutes the imposition of an additional penalty or remedial action in violation of Education Law Section 3020-a. He challenged his reassignment, demanding that he be reinstated to his former teaching assignment and compensated for emotional distress he has endured as the result of district’s assigning him to nonteaching duties.

A State Supreme Court judge dismissed Taylor’s petition on the ground that he did not have any “clear legal right to the relief sought against [district], and therefore [an order in the nature of] mandamus* was not available to him as a remedy.”

The Appellate Division agreed with the lower court, pointing out that Section 3020-a “neither limits the authority of [the district] to assign [Taylor] to nonteaching duties nor requires [the district] to restore [Taylor] to his teaching duties following the completion of disciplinary procedures conducted pursuant to the statute.”

Addressing a procedural issue, the Appellate Division ruled that Taylor was required to give the district a notice of claim as required by Section 3813(1) of the Education Law prior to his commencing litigation.

The court said that in this instance complying with Section 3813 (1) was a statutory condition precedent to bringing an action or proceeding against the district because Taylor was attempting to vindicate his private rights. Accordingly, he was not exempt from the notice of claim requirement set out in the Education Law as might be the case were he attempting to vindicate a public interest in contrast to a personal one.

* Education Law Section 3020-a.4, in pertinent part, provides: …. In addition to or in lieu of the aforementioned penalties, the hearing officer, where he or she deems appropriate, may impose upon the employee remedial action including but not limited to leaves of absence with or without pay, continuing education and/or study, a requirement that the employee seek counseling or medical treatment or that the employee engage in any other remedial or combination of remedial actions.

** Latin for "we order." Mandamus is one of a number of ancient “writs.” In modern legal practice it describes a court order directing a governmental entity [or official] to perform an act required by law when it has neglected or refused to do.
.

Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify

Disciplinary penalty set out in a consent award agreed to in the course of disciplinary arbitration not within the power of a subsequent arbitrator to modify
In the Matter of Saderia Burke v Nassau Health Care Corporation, 2011 NY Slip Op 02887, Appellate Division, Second Department

This decision addressed two proceedings involving Saderia Burke’s arbitration award. Burke, a member of the Civil Service Employees Association, Inc.

In the course of a disciplinary proceeding Burke and the Nassau Health Care Corporation entered into a "Consent Award" that was "so-ordered" by the arbitrator. The Award provided that Burke would be terminated if she committed certain disciplinary infractions within an agreed period.

Subsequently Health Care served a “notice of termination” on Burke after she allegedly committed “certain infractions.” CSEA filed another grievance and demand for arbitration.

After this second hearing, the arbitrator found that Burke, indeed, had committed infractions that would result in termination in accordance with the Consent Award. The arbitrator, however, issued an award imposing a penalty of suspension rather than termination.

Health Care filed an Article 75 petition seeking to vacate the award while CSEA filed an Article 75 petition seeking to confirm the award.

Supreme Court denied Health Care’s petition, granting so much of the arbitration award as imposed a penalty of suspension without pay on Burke.

The Appellate Division reversed the Supreme Court’s decision, and vacated the penalty of suspension without pay awarded by the arbitrator, explaining that courts may vacate an arbitration award if the award "violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power," citing Matter of Falzone, 15 NY3d 530.

An arbitrator, said the court, may properly modify a prior arbitration award only to:

1. Correct a miscalculation or mistaken description in the prior award:

2. To correct so much of the prior award as was rendered on a matter not submitted to the arbitrator and which can be corrected without affecting the merits of the decision; or

3. To correct a prior award that is "imperfect in a matter of form."

In this instance the Appellate Division found that the arbitrator had exceeded his authority by determining an issue “not submitted to him.” Further, he ruled on an issue had been resolved via a “consent award” in a prior arbitration involving Burke, the penalty to be imposed for any other “certain” disciplinary infraction.

In view of this, ruled the Appellate Division, Supreme Court should have modified so much of the arbitrator's award as imposed a penalty of suspension without pay and reinstated the penalty of termination.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02887.htm

.

Termination of employment recommended as the penalty for failure to follow proper procedure in safeguarding the property of an agency client

Termination of employment recommended as the penalty for failure to follow proper procedure in safeguarding the property of an agency client

NYC Human Resources v Townsend, OATH Index #1325/11

A NYC Human Resources Administration client was arrested and Marvin Townsend, a supervising special officer, was assigned to process the arrest.

The client had a jacket with a Portable Sony Playstation (PSP) and wallet, in the pocket.

Townsend told the client he would not voucher the property and that she could get it from his office on the next day.

When the client retrieved the jacket, the PSP and wallet were missing. The PSP was subsequently returned to the client but the wallet was not.

ALJ Alessandra Zorgniotti found that the sergeant failed to follow vouchering procedures and attempted to cover up his actions and deceive the client. The Administrative Law Judge recommended that Townsend be terminated from his position.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1325.pdf
.

Temporary appointees not entitled to a pretermination due process hearing

Temporary appointees not entitled to a pretermination due process hearing

Sanni v NYS Office of Mental Health, USDC, EDNY, 2/15/2000

Frequently a public employee holding a temporary appointment will challenge his or her termination from the position claiming that he or she is entitled to a pretermination due process hearing. This was one of the issues considered by Federal District Court Judge Gleeson in the course of his deciding the Sanni case.

Thomas Sanni, then employed in a grade 27 project director position at Kings Park Psychiatric Center, was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. Simultaneously, he was reinstated to his permanent grade 18 position and transferred to Queens Children Psychiatric Center.

Ultimately, arbitrator Howard A. Rubenstein found Sanni guilty of 11 of the 14 charges filed against him. Among the charges for which Sanni was found guilty were the following:

1. Improperly participating in and supporting the decision to employ the minister of [Sanni’s] church to exorcise a patient possessed by spirits;

2. Transporting a patient in his car when he did not hold a valid driver’s license;

3. Claiming overtime for work he did not perform;

4. Having his personal automobile repaired by Kingsboro and billing the facility for personal items he shipped overseas via international Federal Express; and

5. Lying under oath in the course of being interviewed concerning the charges.

The department accepted Rubenstein’s findings and his recommendation that Sanni be terminated. Sanni sued, contending that the Office of Mental Health’s disciplinary action against him (1) violated his civil rights, (2) constituted retaliation for his filing a Title VII complaint against it and (3) it terminated him from the grade 27 position in violation of Section 75.

As to Sanni’s due process claims, Judge Gleeson pointed out that a public employee who has a property interest or right in his or her position is entitled to a pretermination hearing before he or she may be removed from the position. By logical extension, said the court, an employee covered by Section 75 has a property interest in his or her civil service grade since one of the penalties that may be imposed under Section 75 is demotion in grade and title.

The problem with Sanni’s argument, however, was that temporary employees in New York have no property interest in their jobs. Accordingly, Judge Gleeson, citing the Appellate Division’s ruling in Jones v Westchester County, 644 NY2d 640, granted the State’s motion to summarily dismiss this branch of Sanni’s complaint.

Sanni’s civil rights and retaliation claims based on his demotion and transfer to another department facility survived, however.

This suggests that in such situations the State may attempt to have the case dismissed on the grounds that it immune from suit in federal court for alleged violations of Title VII in view of the rulings by the Supreme Court of the United States in Kimel v Board of Regents, 528 U.S. 62 and Alden v Maine, 527 U.S. 706, cases involving employees suing their state employer in federal court for alleged violations of, respectively, the Age Discrimination in Employment Act and the Fair Labor Standards Act.

.

Civil Service Commission's refusal to extend an eligible list challenged

Civil Service Commission's refusal to extend an eligible list challenged

Matter of Kapetanos v City of New York,  37 AD3d 279

Christopher Kapetanos challenged the New York City Civil Service Commission’s decision not to extend the duration of a 2000 eligible list for the civil service position of Associate Fraud Investigator. The decision notes that Kapetanos did not plead, even in conclusory fashion, that the restriction triggering the Commission’s ability to exercise its Civil Service Law Section 56.1 discretion to extend the eligible list was attributable to a financial emergency.

Section 56.1 addresses extending eligible lists in situations involving restriction against the filling of vacancies. It provides that:

The duration of an eligible list shall be fixed at not less than one nor more than four years; provided that, except for lists promulgated for police officer positions in jurisdictions other than the city of New York, in the event that a restriction against the filling of vacancies exists in any jurisdiction, the state civil service department or municipal commission having jurisdiction shall, in the discretion of the department or commission, extend the duration of any eligible list for a period equal to the length of such restriction against the filling of vacancies.

Restriction against the filling of vacancies shall mean any policy, whether by executive order or otherwise, which, because of a financial emergency, prevents or limits the filling of vacancies in a title for which a list has been promulgated. An eligible list that has been in existence for one year or more shall terminate upon the establishment of an appropriate new list, unless otherwise prescribed by the state civil service department or municipal commission having jurisdiction.

The decision is posted on the Internet at:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/extension-of-eligible-list.html

.