Unemployment Insurance Appeals Board must make an independent determination as to whether the employee was dismissed for misconduct within the meaning of the Labor Law.

Unemployment Insurance Appeals Board must make an independent determination as to whether the employee was dismissed for misconduct within the meaning of the Labor Law.

Ranni v. Ross, 84 A.D.2d 858

The arbitrator found the employee guilty of misconduct, gross insubordination and failure to properly perform his duties. The penalty of dismissal was imposed.

Later the former employee claim for unemployment benefits was denied on the basis of the arbitrator’s disciplinary determination.

The Appellate Division ruled that “an employer may be completely justified in discharging an employee, yet the grounds for the firing may not constitute misconduct within the meaning of Section 593.3 of the Labor Law.”

As the Unemployment Insurance Appeals Board relied exclusively on the arbitrator’s findings regarding the dismissal, the Court said that “there is no substantial evidence in the record (before the Board) to support the Board’s denial of the claim” and sent the matter back to the Board for further consideration.

N.B. Section 593.3 does not define “misconduct” but merely refers to it in connection with the calculation of periods of time in connection with disqualification for benefits.) One judge, in a dissent, argued that the employee should not be given the opportunity to relitigate the disciplinary action within the context of an unemployment insurance claim.

Governor Cuomo and Legislative Leaders appoint members to The Joint Commission on Public Ethics

Governor Cuomo and Legislative Leaders appoint members to The Joint Commission on Public Ethics

Source: Press Office, Office of the Governor

Governor Andrew M. Cuomo and legislative leaders today announced their appointments to the new Joint Commission on Public Ethics (JCOPE).

JCOPE is an independent enforcement unit with broad oversight of New York State government. The Commission has powers to investigate violations of law and financial disclosure requirements for all elected officials and their employees in both the executive and legislative branches. JCOPE also has expanded powers to oversee lobbyists due to newly expanded disclosure rules and a broader definition of lobbying.

JCOPE was created as part of Governor Cuomo's ethics reform package designed to address major inadequacies in the State's ethics system and to restore public trust in government. The Public Integrity Reform Act of 2011 [Chapter 399 of the Law of 2011] contains some of the most comprehensive ethics enhancements in modern history, including reforms that create transparency, require strict disclosure, and increase penalties for ethics violations.

In addition, Part C of the Act provides for "Pension Forfeiture" under certain circumstances. It amends the Retirement and Social Security Law by adding a new Article 3-B to establish a procedure whereby certain public officials who commit crimes related to their public offices may have their pensions reduced or forfeited under certain circumstances. This new article applies prospectively to officials who enter any of the applicable retirement systems. In addition, the Act amends the criminal procedure law to require that criminal defendants whose pensions may ultimately be reduced or forfeited shall be notified of that possibility by the court prior to any trial or plea entered in their criminal case.

The text of Chapter 399 is posted on the Internet at:

http://open.nysenate.gov/legislation/bill/S5679-2011

The bipartisan Commission consists of six members appointed by the Governor, at least three of whom must be enrolled members of the major political party that is not that of the Governor. It also consists of eight members appointed by the legislative leaders. The Senate Majority Leader and the Speaker of the Assembly each appoint three members and the minority leaders of both houses each appoint one member. The Governor appoints the chair from among the Commission members.

Governor Cuomo's appointments are:

Janet DiFiore, Chair. Elected in 2005 and reelected in 2009, District Attorney DiFiore is the chief law enforcement officer of Westchester County. She also serves as the president of the District Attorney's Association of the State of New York. Prior to her current position, she served as a Judge of the Westchester County Court and as a Justice of the New York State Supreme Court. District Attorney DiFiore was also appointed by former-Chief Judge Judith Kaye to serve as the Supervising Judge for the Criminal Courts in the 9th Judicial District and was appointed by Chief Judge Jonathan Lippman to serve as Co-Chair of the New York State Justice Task Force. District Attorney DiFiore received her J.D. from St. John's University School of Law and her B.A. from C.W. Post College, Long Island University.

Vincent A. DeIorio. Mr. DeIorio is the Chair of the New York State Energy Research and Development Authority (NYSERDA) Board of Directors. He is an attorney with private practices in Purchase and New York City. Mr. DeIorio has previously served on the New York State Court of Claims. Mr. DeIorio is a graduate of the Utica College of Syracuse University and the University at Buffalo Law School. Mr. DeIorio will resign from NYSERDA in order to serve on JCOPE.

Mitra Hormozi. Ms. Hormozi has served as the Chairperson of the New York State Commission on Public Integrity since her appointment earlier this year. Ms. Hormozi is a partner at Kirkland & Ellis LLP. She previously served as the Special Deputy Chief of Staff in the New York Attorney General's Office, where she supervised high-profile initiatives involving public integrity. Prior to that, she spent more than six years as an Assistant United States Attorney for the Eastern District of New York, where she was the Chief of the Organized Crime and Racketeering Section and received numerous top law enforcement awards. Ms. Hormozi is a graduate of the University of Michigan and the New York University School of Law. Ms. Hormozi will join JCOPE on January 5, 2012, one year after she left the Attorney General's Office.

Daniel J. Horwitz. Mr. Horwitz is currently a partner at Lanker & Carragher, LLP. He previously served as a New York County Assistant District Attorney in the Frauds Bureau. Prior to his legal career, Mr. Horwitz served as Legislative Director to Congressman Thomas J. Downey. Mr. Horwitz received his J.D. cum laude from the American University Washington College of Law and his B.A. from Columbia University.

Gary J. Lavine. Mr. Lavine is associated as counsel with Green & Seifter, Attorneys, PLLC. Mr. Lavine served in the U.S. Department of Energy as Deputy General Counsel for Environment & Nuclear Programs during the administration of President George W. Bush. He also served as senior vice president and chief legal officer of Niagara Mohawk Holding Inc. Mr. Lavine has served in a number of staff positions with the New York State Legislature, including legislative counsel to the Minority Leader of the Assembly. He received degrees in both business administration and law from Syracuse University.

Seymour Knox IV. Mr. Knox is the CEO of Knox International, LLC, a New York based private equity firm. For twenty years, Mr. Knox served as Vice President of Corporate Relations for the Buffalo Sabres. Mr. Knox is a graduate of Lake Forest College.

Senate Majority Leader Skelos' appointments are:

Mary Lou Rath. Ms. Rath represented the 61st district in Western New York from 1993 until her retirement in 2008. She was the first woman to serve in a leadership position in the Senate Majority and had numerous legislative accomplishments throughout her tenure, especially in the areas of health care and Medicaid reform. She has received many awards and honors in recognition of her distinguished public service in the Senate and as a member of the Erie County Legislature.

Judge Joseph Covello. Judge Covello has more than 30 years of experience in law and justice. Justice Covello stepped down from the New York State Appellate Division in 2011 to return to private practice. He spent 16 years on the bench, authoring many notable opinions. Before his appointment to the Appellate Division, he served as a trial judge in the Supreme Court, Nassau County. Prior to that, he served on the Appellate Term for the Ninth and Tenth Judicial Districts, and as a trial judge in District Court, Nassau County. He spent 16 years in private practice before becoming a judge. Justice Covello is a veteran of the United States Army, and is a graduate of the State University of New York at Buffalo and Hofstra University of Law.

George H. Weissman. Mr. Weissman served as the Managing General Counsel of the New York State Dormitory Authority for nearly a decade and as Assistant Counsel in the Office of the State Comptroller. His previous positions also included working as Program Associate for the state Senate, and Counsel with the New York State Legislative Commission on Critical Transportation Choices. He was formerly Of Counsel with Marsh, Wasserman and Associates, LLP. He received his J.D. from Albany Law School of Union University and a B.A. in Political Science at SUNY Cortland.

Assembly Speaker Silver's appointments are:

Pat Bulgaro. Mr. Bulgaro has more than twenty-five years of state government experience, serving at the highest levels of several state agencies, including the Department of Taxation and Finance and the Division of the Budget, where he served as director under former Governor Mario Cuomo. He also served as President and Executive Director of the Center for the Disabled and on the New York State Temporary Commission on Lobbying as an appointee of Speaker Silver. During his distinguished career in public service, Mr. Bulgaro was awarded the Governor Charles Evans Hughes Award for "outstanding career achievement."

Marvin Jacob. Mr. Jacob, a retired attorney, was a partner in the Business and Finance & Restructuring Department of Weil, Gotshal & Manges, where he handled matters before the bankruptcy courts and federal district and appellate courts. He has corporate bankruptcy litigation experience, serving such institutional clients as General Electric Capital Corporation and Credit Suisse First Boston. Mr. Jacob has also served as the Associate Regional Administrator, New York Regional Office, U.S. Securities and Exchange Commission. In 2010, the Speaker appointed Mr. Jacob to the task force that oversaw the implementation of the Public Authorities Reform Act of 2009.

Ellen Yaroshefsky. Ms. Yaroshefsky is currently a law professor at the Benjamin N. Cardozo School of Law, co-executive director of the Jacob Burns Ethics Center in the Practice of Law, and a former adjunct professor at Fordham Law School. She is an experienced attorney specializing in defense and civil rights litigation, and is a member of several attorney ethics review organizations, including the American Bar Association's Ethics, Gideon and Professionalism Committee, the New York State Bar Association's Committee on Standards of Attorney Conduct, and the National Association of Criminal Defense Lawyers Ethics Advisory Committee.

Senate Democratic Leader John L. Sampson's appointment is:

Ravi Batra. Mr. Batra is an attorney with a private practice. He has served as a professor of business law at Pace University. Mr. Batra has also served as the Chair of the Judicial Independence Committee of the New York State Trial Lawyers Association. He received his J.D. from Fordham University and his bachelor of business administration degree cum laude from Pace University.

Assembly Minority Leader Brian M. Kolb's appointment is:

David A. Renzi. Mr. Renzi is a partner in the law firm of Brown, Dierdorf and Renzi. He has been with this Watertown firm since 2002. The firm is recognized for their expertise in the areas of real estate, business formation, estate planning, and municipal practice. Previously, Mr. Renzi served as the Public Defender for Jefferson County and successfully prosecuted thousands of criminal cases. Mr. Renzi is a graduate of Syracuse University School of Law.

Action for alleged defamation follows disclosure of document pursuant to a FOIL request

Action for alleged defamation follows disclosure of document pursuant to a FOIL request

Gosden v Elmira City School District, 2011 NY Slip Op 08874, Appellate Division, Third Department

One of the lessons of the Gosden case is that although a settlement agreement that provided that the parties would keep its terms “confidential” may be subject to disclosure pursuant to a Freedom of Information [FOIL] request, its subsequent disclosure pursuant to FOIL does not excuse a party breaching other terms and conditions unrelated to such disclosure set out in the agreement.

Robert Gosden, earlier employed as an administrator by the Elmira City School District entered into an agreement with the school district to settle alleged overpayment it had made to him prior to his retirement from service with the district. The settlement agreement stipulated that [1] Gosden disputed “that any overpayment had occurred" and [2] that the settlement agreement would remain “confidential.”

A local newspaper subsequently obtained a copy of the agreement under the Freedom of Information Law (Public Officers Law Article 6) and published articles about it and a Comptroller's Audit report of the school district dated October 2008.

Gosden and his company, Manus Management Consultant Services, Inc., then contracted with the local Board of Cooperative Educational Services to supply certain services to area school districts, including providing financial responsibility training to Board members.

Two Elmira City School District board members, however, were “reported as being insulted and angry that Gosden would be paid to train them about financial responsibility and they were quoted as saying, among other things, that Gosden had admitted to wrongdoing regarding his annual leave payout.”  Soon thereafter the BOCES canceled a contract with Manus Management.

Manus and his company then sued the school district, alleging that it had breached their contract. Supreme Court agreed, awarding Manus and his company the $8,000 that Gosden had paid to settle the potential claims against him “plus an amount to be determined at an inquest based on lost business” suffered by Manus and his company.

The first issue considered by the Appellate Division concerned the alleged breach of contract cause of action.

The court said while the settlement agreement had set out a confidentiality provision, the parties also recognized in the agreement that it might be disclosed for a lawful purpose and they specifically set forth a clause that "permitted comments by the parties in the case of such disclosure." The agreement stipulated that "[a]ll other inquiries about this Settlement Agreement or the matter to which it pertains will be responded to by the [p]arties by stating that the matter has been 'settled to the satisfaction of the parties.'"

The terms of the agreement did, in fact, become public pursuant to a Freedom of Information Law request and the parties did not claim that this disclosure was improper. 

However two board members had been board members when the settlement was negotiated and remained board members at the time of their comments. According to the Appellate Division, their comments, which were reported in a local newspaper in November 2008 and reiterated at a Board meeting, went beyond the scope of the comments to which the parties had agreed. This, said the Appellate Division, constituted a breach of the terms of the agreement by school district.

The full decision, which address other and related issues, is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08874.htm

Failure to follow prescribed treatment ruled misconduct

Failure to follow prescribed treatment ruled misconduct

DeCherro v. Ross, 83 A.D.2d 709

Supervisors frequently are told be an employee that he or she cannot work because of illness. Sometimes this results in the employee being terminated from his or her position.

In DeCherro the Appellate Division upheld a finding by the Unemployment Insurance Appeals Board that the employee “while...suffering from an illness, has made no reasonable effort to pursue a course of treatment...conduct contrary to the best interests of the employer.”

Although there was no doubt that DeCherro was suffering from an illness, his claim for unemployment benefits was denied “because he lost his employment due to misconduct.”

The court explained DeCherro did not show that his illness would interfere with following simple directions or that his work assignments would render him unable to follow routine treatment recommendations.

Employee found guilty of misconduct based on hearsay evidence presented at the disciplinary hearing

Employee found guilty of misconduct based on hearsay evidence presented at the disciplinary hearing

Matter of Matter of Paul v Israel, 2011 NY Slip Op 08947, Appellate Division, Second Department

Josephine Paul challenged the Westchester Medical Center’s decision to terminate her following a Civil Service Law §75 disciplinary hearing in which she was found guilty of misconduct, contending that the hearing officer’s determination was not supported by substantial evidence and was based on hearsay testimony.

The Appellate Division confirmed the appointing officer’s decision and dismissed her petition challenging the penalty imposed “on the merits.”

Finding that there was substantial evidence in the record to support the determination of the Westchester Medical Center that Paul was guilty of misconduct, the court ruled that her argument that the administrative determination is not supported by substantial evidence because the evidence presented was hearsay was without merit.

As to the penalty imposed, termination, the Appellate Division said that dismissal “was not so disproportionate to the offense committed as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” citing Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222.

Frequently the use of hearsay evidence in a disciplinary hearing is claimed to justify the vacating of an adverse disciplinary decision. In Roldan v Bartton, 203 A.D.2d 368, Roldan argued that the hearing officer had improperly admitted "certain hearsay evidence" in the course of the hearing. The court said that Roldan's contention was "unpersuasive," holding that "it is well settled that hearsay is admissible in administrative hearings and may form the basis of an adverse determination," citing Gray v Adduci, 73 NY2d 741.

The Paul decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08947.htm

Employee must answer questions concerning work if granted “use immunity”

Employee must answer questions concerning work if granted “use immunity”

Tanico v. McGuire, 80 AD2d 297

Two police officers refused to answer questions concerning their performance of official duties following their suspension without pay for alleged official misconduct.

They were subsequently served with disciplinary charges alleged misconduct and later again refused to answer “questions specifically directed and narrowly related to official duties.”

Instead the officers filed an Article 78 petition seeking a court order prohibiting such questioning.

The Appellate Division ruled that “a public employee, if granted ‘use immunity’ may be narrowly and specifically questioned about his official duties and dismissed...if he refuses to answer questions properly put to him.”

Although “use immunity” would prevent the answers being used against the individual in a criminal prosecution, the court indicated “since disciplinary proceedings are not criminal actions, the employee’s statements may be used against him in those proceedings (and) an employee who refuses to answer may be discharged on that basis.”

New York City Police Department Rules authorize interrogation of police officers who are either the subject of or witnesses in an official investigation. It appears that an employee can be compelled to testify against himself in a disciplinary proceeding as “use immunity” would be provided under the 5th Amendment in any subsequent criminal prosecution.

Combining demands may be injurious to your bargaining position

Combining demands may be injurious to your bargaining position

Town of Niagara, Case U-5115

When an item subject to mandatory negotiations was combined with a non-mandatory item, PERB held the entire proposal constituted what it described as a “unitary demand” which became a non-mandatory subject of negotiations because one of its parts was non-mandatory.

PERB, however, rejected the Town’s argument that a demand to continue a number of existing contract provisions (consisting of both mandatory and non-mandatory subjects of negotiations) be considered non-mandatory because some parts were non-mandatory. Here PERB ruled that there was no basis to conclude the several provisions constituted a “unitary demand”.

This suggests that had the Union presented certain of the existing provisions as a “package” demand,” the “package” would not be converted into a non-mandatory subject of negotiations despite the fact that the “package” consisted of both mandatory and non-mandatory subjects of collective bargaining and the employer could not refuse to negotiate the proposal.

Presumably the same rule would apply if the employer were to “package” its demands.

Selected Appellate Division rulings

Selected Appellate Division rulings

     * Dismissal because of repeated lateness or being absent from work without an appropriate excuse is not disproportionate to the offense (Smack v. Dutchess County, 80 AD2d 874.

     * The reassignment of the work of the incumbent of an abolished position among five other (retained) employees, none being assigned more than 50% of the duties of the abolished position, is lawful (Currier v. Tompkins-SenecaTioga BOCES, 80 AD2d 979)

     * Shortcomings as an administrator and unsatisfactory performance as a supervisor are not stigmatic so as to require a name clearing hearing for persons not subject to Section 75 of the Civil Service Law. (Carter v. Roswell Park Memorial Institute 80 AD2d 960)

     * Although the appointing authority was obliged to consider the findings of the Hearing Officer in a Section 75 disciplinary action, it was entitled to overrule them in arriving at the ultimate decision. (Wood v. Maine-Endwell CSD, 80 AD2d 970)

Abolishing positions in the public service

Abolishing positions in the public service
Matter of Matter of DiSanza v Town Bd. of Town of Cortlandt, 2011 NY Slip Op 08941, Appellate Division, Second Department

The Town Cortlandt abolished the position of Environmental Analyst, resulting in the layoff of Richard DiSanza. DiSanza sued, seeking a court order directing his reinstatement with back salary.

The Appellate Division affirmed a Supreme Court’s decision denying DiSanza’s petition.

The court explained that a public employer may, in good faith, abolish positions in the civil service for the purpose of economy or efficiency. In the event the decision is challenged, the challenger has the burden of proving that the employer did not act in good faith in abolishing the position.

As to the mechanics involved, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee otherwise entitled to the benefits set out in Sections 80 and 80-a of the Civil Service Law [Layoff], or any similar law, from his or her position (1976 Opinions of the Attorney General 7).

Further, in CSEA and Burnt Hills-Ballston Lake CSD, 25 PERB 3066, PERB, in response to CSEA's allegation that the school district had unilaterally abolished a position in violation of its duty to bargain, ruled that "notwithstanding the obvious impact a position abolition can have, and did have in this case, upon an employee's employment relationship, [it remains] convinced that a position abolition for economic reasons is primarily mission related and, therefore, a nonmandatory subject of negotiations."

The Cortland decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08941.htm

Disciplinary action should proceed regardless of layoff of the accused

Disciplinary action should proceed regardless of layoff of the accused

Rubtchinsky v. Moriah Central School District, 82 A.D.2d 960

A teacher was suspended with pay pending the outcome of a disciplinary hearing on charges of incompetency and misconduct. He was then advised that a position in his department was to be abolished and as he was the teacher with the least seniority, his services would be discontinued.

The Education Law §3020-a disciplinary hearing, however, was never held.

Rubtchinsky sued and Supreme Court held that the teacher had to be given “the economic benefits of his position before (the District) can proceed with a hearing under Section 3020-a.”

The Appellate Division reversed the lower court’s ruling, indicating that Rubtchinsky could get back salary upon reinstatement only if his claim that he was improperly excessed is upheld, and that it knew of no reason to abort the disciplinary hearing.

As Section 2510.3 of the Education Law gives the teacher reinstatement rights for six years, it seems prudent that the discipline action should go forward regardless of the layoff, even if the individual is, in fact, the teacher with the least seniority.

Responsibility, in contrast to authority, may not be delegated

Responsibility, in contrast to authority, may not be delegated

Dougherty v. Hennessy, 82 A.D.2d

In a number of disciplinary cases involving supervisors, a defense that the work was given to a subordinate who failed to perform the task(s) is often raised by the supervisor.

In Dougherty the Appellate Division gave little weight to this type of defense, noting that Dougherty, a supervisor, “consistently attempted to absolve himself from blame by contending that he had delegated the tasks to his assistant or another ....This delegation, of course, did not relieve him of the obligation or the responsibility to see that the assignment was properly performed”.

The Court then affirmed Dougherty’s dismissal from his position.

When is “final” administrative or quasi-judicial determination “final”

When is “final” administrative or quasi-judicial determination “final”

Seidner v. Town of Colonie, 79 AD2d 751

Administrative and quasi-judicial decisions such as those resulting from disciplinary action, commission decisions and similar proceedings may be reviewed by the courts once the decision is “final”. It is sometimes necessary to determine if the decision is ripe for appeal as well as the timeliness of the appeal.

In Seidner, the Appellate Division indicated that an administrative determination is considered “non-final” where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner’s application.

Seidner’s appeal was held untimely because it was filed late. 

While the matter could be reconsidered by action of the (Zoning Appeals) Board, “there was not statutory authority for a re-hearing upon the petitioner’s application (See Section 267.6, Town Law).

The discretionary power to rehear or reopen matters that is vested in nearly all administrative agencies, is not sufficient to render an otherwise final order “non-final.”

The Appellate Division then commented that the courts have consistently held that the filing, and subsequent denial, of an application to reconsider an administrative board’s determination does not extend the period of limitations within which to seek (judicial) review of the determination.

Evidence obtained using a global positioning device [GPS] permitted in administrative disciplinary hearing

Evidence obtained using a global positioning device [GPS] permitted in administrative disciplinary hearing

Matter of Matter of Cunningham v New York State Dept. of Labor, 2011 NY Slip Op 08529, Appellate Division, Third Department

Michael A. Cunningham, an employee of the New York State Department of Labor, was served with disciplinary charges alleging that he had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle. The disciplinary hearing officer found Cunningham guilty of certain charges and recommend that Cunningham be dismissed from his position. The Commissioner of Labor accepted the hearing officer's findings and recommended penalty and terminated Cunningham from service.

In the course of an investigation which resulted in the disciplinary charges being filed against Cunningham, the State’s Office of the Inspector General used a global positioning system (GPS) device placed on Cunningham’s vehicle and the resulting information was used in the course of Cunningham’s disciplinary hearing as evidence to prove charges that he had reported false information and submitted false vouchers related to his travel using his personal vehicle.*

Cunningham, contending that the GPS devices placed on his car without a warrant constituted an illegal search and seizure under the NY Constitution, appealed and argued that all such information should have been excluded from evidence at the administrative hearing.

One of the significant issues before the Appellate Division was Cunningham’s challenging the GPS evidence used in the disciplinary action. Essentially the Appellate Division had to determine if the admission of evidence obtained through the use of the GPS to prove certain of the disciplinary charges was unduly prejudicial to Cunningham.

The Appellate Division noted that in a case decided after OIG had concluded its investigation of Cunningham, a majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause" (People v Weaver, 12 NY3d 433 [2009]).

Concluding that although the GPS evidence gathered in the course of the OIG investigation would have likely been excluded from a criminal trial under Weaver, the Appellate Division said that the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law, citing McCormick, Evidence §173 [6th ed] [supp], in which it was observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”.

The court said that the test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”

Similarly, said the court, when the search was “conducted by an entity other than the administrative body” seeking to use the evidence in a disciplinary proceeding, the rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth."

As in this instance the investigation was refer to the OIG. Under such facts, said the court, “the reasonableness test appears applicable.”

The court concluded that in order to establish a pattern of serious misconduct such as repeatedly submitting false time records in contrast to a mere isolated incident, it was necessary to obtain pertinent and credible information over a period of time. Here the Appellate Division ruled that “obtaining such information for one month using a GPS device was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonworking-related ventures during work hours.”

Under the circumstances the Appellate Division said that neither OIG nor Department of Labor had acted unreasonably.

* See, also, Matter of Halpin v Klein, 62 AD3d 403. In Halpin the employee was found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The Halpin decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03593.htm


Another decision that addresses this issue is United States v Skinner, [USCA, 6th Circuit] posted on the Internet at::
http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf

The Cunningham decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08529.htm

Civil service department determines testing format

Civil service department determines testing format

Esposito v. Civil Service Department, 55 N.Y.2d 835

When provisional employees were unable to persuade the Department of Civil Service to use an “unassembled examination” which is based on the candidates training and experience instead of the written multiple-choice type to test eventually held, the employees sued.

The provisional employees contended that “the only appropriate and effective method of evaluating merit and fitness for their position (Rehabilitation Counselor and Trainees) was the unassembled test.

The court stated that it is not whether the employee’s method of testing is preferable but whether the Civil Service Department’s method is irrational and dismissed their petition.

Decisions issued by PERB

Decisions issued by PERB

Reduction of services

A public employer that reduces services has the burden of showing that such reduction was made in good faith for a proper purpose. Such a showing will support workload and salary reductions proportionate to the reduction in service. Reductions in workload and salary without proportionate reductions in services are subject to negotiations under the Taylor Law (Schulerville Central School District, Case U-4212).

Protected rights

Permanently changing the work hours of employee who was union president and limiting his “leave for union business” to four hours during each tour held violation of employee’s protected rights; contract authorized up to 16 hours of such leave per week, subject to employer approval. Matter of City of Mount Vernon, Case U-4688.

Subcontracting unit work

Unilaterally subcontracting for school lunch program that resulted in termination of food service employees was in violation of the School District’s duty to bargain the impact of such a decision. Although the employer was ordered to offer employees reinstatement, back salary was denied because the district had made a good faith offer of alternative employment without loss of salary or benefits at the time of the subcontracting. (Matter of Hilton Central School District, Case U-4887)

Negotiate in good faith

Union violated its duty to negotiate in good faith when it refused to sign the contract reflecting all the agreements reached and ratified by the members of the Union with the County following conclusion of negotiations and was directed to execute the Agreement (Matter of Onondaga County, Case U-4807).