Dismissed probationer's allegations that her termination constituted retaliation for exercising her First Amendment rights rejected

Dismissed probationer's allegations that her termination constituted retaliation for exercising her First Amendment rights rejected

Kiehle v. County of Cortland, USCA, 2^nd Circuit, Docket #11-3097-cv [Summary Order*]

Kristina Kiehle appealed a federal district court's judgment granting summary judgment to the County of Cortland and three employees of the Cortland County Department of Social Services ("DSS") alleging that she had been terminated from her position as a probationary case worker in retaliation for testifying at a New York State Family Court ("Family Court") hearing.

The Circuit Court of Appeals, after a de novo review, sustained the district court’s granting the County’s motion for summary judgment.

According to the decision, Kiehle had voluntarily testified at a Family Court hearing in which a mother sought to re-obtain custody of her daughter. After introducing herself as a DSS caseworker, Kiehle stated that her conclusions were based on information that she had obtained in the course of her public employment and that “the mother was able to adequately supervise, and was not neglectful of, her children. She then recommended that the child be returned to the mother.

The Circuit Court said that although Kiehle’s position was contrary to DSS’s position in the proceeding, she had not distinguished her personal views from those of DSS. Accordingly it sustained the district court’s conclusion that Kiehle did not testify as a private citizen on a matter of public concern at the Family Court hearing but, rather, she testified as a government employee, i.e., as a DSS caseworker.

Citing Garcetti v Ceballos, 547 U.S. 410, the Circuit Court explained that "[W]hen public employees make statements pursuant to their official duties, the employees are not speaking as citizens for First Amendment purposes, and the Constitution does not insulate their communications from employer discipline."

The Circuit Court set out the following guidelines used by courts in cases where a public employee claims “First Amendment retaliation,” indicating that in order for the employee to prevail, he or she must demonstrate that:

(1) The speech addressed a matter of public concern,

(2) The employee suffered an adverse employment action, and

(3) There was a causal connection existed between the speech and the adverse employment action" such that "speech was a motivating factor in the determination."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6b2350f4-485a-4223-8c69-f3f5bc5e76f1/16/doc/11-3097_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6b2350f4-485a-4223-8c69-f3f5bc5e76f1/16/hilite/

* Rulings by summary order do not have precedential effect.

Employee terminated for omitting relevant information from his application for employment

Employee terminated for omitting relevant information from his application for employment
Russell v New York Citywide Admin. Servs., 55 AD3d 614

Stephen Russell sued the New York City Department of Citywide Administrative Services following its terminating his temporary employment as a bridge and tunnel officer. An investigation by the Citywide Administrative Services revealed that Russell had failed to disclose pertinent information on his employment application. The information omitted: Russell’s “prior misdemeanor criminal conviction, prior revocations and suspensions of his driver's license, and a prior termination from employment by the New York City Transit Authority.”

The Appellate Division agreed with Supreme Court that Citywide Administrative Service’s decision to terminate Russell’s temporary employment was neither arbitrary nor capricious, had a rational basis, and was not made in bad faith.

Section 50.4 (f) and (g), respectively, permit the State Civil Service Department and municipal commissions to disqualify an individual “who has intentionally made a false statement of any material fact in his [or her] application; or (g) who has practiced, or attempted to practice, any deception or fraud in his [or her] application … to be disqualified. 

The statute further provides that “No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefore [sic] and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”

The full text of the decision is posted on the Internet at
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07670.htm

Tours of active military duty considered for the purpose of mitigating disciplinary penalty imposed on employee

Tours of active military duty considered for the purpose of mitigating disciplinary penalty imposed on employee
Gomez v Kelly, 55 AD3d 305

New York City Police Commissioner Raymond W. Kelly found Manuel Gomez guilty of five charges of misconduct and as the penalty placed Gomez on a one-year disciplinary probation and imposed a forfeiture of 30 days of vacation credit.

The charges filed against Gomez: violation of his commanding officer's order to terminate his involvement with the District Attorney's office in a criminal investigation; failure to take possession of drugs during a police department integrity test; failure to voucher his helmet, mace and shield before leaving for active military duty; retrieved his service handgun before the official date of his discharge from active military duty; and failure to report a domestic incident to the department.

Gomez appealed and the Appellate Division, after sustaining the Commissioner’s determination finding Gomez guilty of the charges filed against him, ruled the penalty imposed by the Commissioner was “excessive in light of the mitigating circumstances, i.e., [Gomez's] several tours of active military duty, including a year in Afghanistan for which was decorated, and the substantial pay lost in connection with his military service,” citing Pell v Board of Education, 34 NY2d 222.

The court remanded the case to the Commissioner for the purpose of his setting a lesser penalty.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07181.htm

Substantial evidence supports disciplinary hearing officer’s findings

Substantial evidence supports disciplinary hearing officer’s findings

Mercado v Kelly, 54 AD3d 654

A police officer appealed his termination from his position as a New York City police officer after he was found guilty of certain charges following a disciplinary hearing.

The Appellate Division, in a unanimous decision, said that “Substantial evidence supports the findings, including that [the officer] possessed a stolen license plate and made false and misleading statements about whether he knew the plate was stolen.

Accordingly, the court dismissed the officer’s appeal as “There is no basis for disturbing the hearing officer's assessment of petitioner's credibility regarding the inconsistencies between his plea allocution in the criminal case against him and his statements to the Internal Affairs Bureau investigators.”

As to the penalty imposed by the Police Commissioner, dismissal, the Appellate Division said that “The penalty of dismissal does not shock our sense of fairness, particularly where the evidence gives rise to the inference that petitioner obtained the stolen license plate by virtue of his official position and intended to use the plate for fraudulent purposes, citing Kelly Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07175.htm

“Tebowing” and other activities by students leading to disciplinary suspensions

“Tebowing” and other activities by students leading to disciplinary suspensions

Source: On Board, a publication of the New York State School Boards Association

“Tebowing” that resulted in hallway congestion and other unusual reasons for initiating student disciplinary actions leading to suspensions are described in an article published in the July 2, 2012 edition of the New York State School Boards Association’s publication On Board.

Among other incidents leading to suspensions: Growing long hair for charity [in violation of the school’s dress code] and “Chivalry” [holding an exterior door open for an adult known to the student in violation of security procedures].

The article is posted on the Internet at:

http://www.nyssba.org/index.php?src=news&submenu=news_media&srctype=detail&category=On%20Board%20Online%20July%202%202012&refno=2213

An administrative decision made in violation of lawful procedure, affected by an error of law, that is arbitrary and capricious or that is an abuse of discretion is fatally defective

An administrative decision made in violation of lawful procedure, affected by an error of law, that is arbitrary and capricious or that is an abuse of discretion is fatally defective

Malverne Volunteer Fire Dept. v New York State Off. of Fire Prevention & Control, 2012 NY Slip Op 05174, Appellate Division, Second Department

The New York State Fallen Firefighters Memorial Appeals Committee denied a request to include former Malverne Volunteer Fire Department firefighter Paul Ryan Brady's name on the New York State Fallen Firefighters' Memorial Wall. Malverne appealed, contending that the Committee’s decision was not made after a quasi-judicial hearing it claimed was required by the Committee’s procedures.

Although Supreme Court dismissed Malverne’s petition, the Appellate Division “reversed, on the law” and remanded the matter to Supreme Court “to direct the New York State Fallen Firefighters Memorial Appeals Committee to include Paul Ryan Brady's name on the New York State Fallen Firefighters' Memorial Wall.”

The Appellate Division explained that in this instance it must consider whether the Committee’s determination was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion.

The test applied in such cases: “did the action taken by the agency have a rational basis." Citing Matter of Wooley v New York State Dept. of Correctional Servs., 15 NY3d 275, the Appellate Division said that a court will overturn such action only "where it is taken without sound basis in reason' or regard to the facts'" or where it is "arbitrary and capricious."

In this instance, said the court, the determination of the Committee that the death of firefighter Brady was not a "line of duty death" within the selection criteria for inclusion on the New York State Fallen Firefighters Memorial Wall was arbitrary and capricious and did not have a rational basis in the record.

Indeed, said the court, “The record demonstrates that, under the applicable selection criteria, Paul Ryan Brady died while engaged in an action that was required, authorized or recognized by law, rule, regulation, [or] condition of employment.’"

Accordingly, the Appellate Division ruled that Supreme Court should have [1] granted Malverne’s petition, [2] annulled the Committee’s determination and [3] directed the appeals committee to include Brady's name on the New York State Fallen Firefighters' Memorial Wall

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05174.htm

Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”

Statute of limitations no bar to bring disciplinary charges when the allegations claim “continuous incompetency”

Canna v Town of Amherst, 55 AD3d 1269

Town of Amherst Superintendent of the Wastewater Treatment Facility Anthony R. was terminated from his employment following a hearing conducted pursuant to Civil Service Law §75 (1) based on charges alleging incompetence in the supervision of the operation of the facility.

Canna appealed, contending, among other things, that the Section 75 hearing officer “was biased against him;” that the Town Board’s resolution to terminate his employment was not supported by the required number of valid votes; that the charges were barred by the 18-month statute of limitations set out in Section 75(4) of the Civil Service Law; and that the penalty imposed, dismissal, was “shocking to one’s sense of fairness.”

The Appellate Division rejected Canna’s claim the hearing officer was biased, holding that Canna failed to present "a factual demonstration to support the allegation of bias and proof that the outcome [of the hearing officers findings and recommendation] flowed from it."

As to the validity of the Board’s vote, the court rejected Canna’s claim that the Board’s vote was tainted by the statements by one Town Board member to the effect that it would be difficult for Canna to resume his position as superintendent of the Facility after all that had transpired. Further, said the Appellate Division, “The record establishes that he further stated that, although [that member of the Board] did not believe that [Canna] was ‘single handedly’ responsible for all of the problems at the Facility, he believed that the evidence establish that [Canna] was incompetent, and incompetence is a valid basis for termination.”

Addressing the other aspects of Canna’s appeal, the Appellate Division said that the disciplinary proceeding against Canna was not time-barred based on the 18-month limitations period set forth in Civil Service Law §75(4) because his “alleged incompetency was continuous” and that the penalty imposed upon him, dismissal, was not so disproportionate to the offense as to be shocking to one's sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

The full text of the decision is posted on the Internet at

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07300.htm

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The Discipline Book, - a concise guide to disciplinary actions involving public employees in New York State. This more than 1500 page e-book is now available from the Public Employment Law Press. Click on http://thedisciplinebook.blogspot.com/for additional information concerning this electronic reference manual.

=======================

Rebutting the statutory presumption that an “on-the-job” injury or death was job-related shifts burden of showing job-relatedness to the claimant

Rebutting the statutory presumption that an “on-the-job” injury or death was job-related shifts burden of showing job-relatedness to the claimant
Petrocelli v Sewanhaka Cent. School Dist., 54 AD3d 1143

Section 21 of the Workers’ Compensation Law sets out “a presumptions of compensability when an unwitnessed or unexplained death occurs during the course of one's employment.” The presumptions “in the absence of substantial evidence to the contrary are:

1. That the claim comes within the provision of this chapter;

2. That sufficient notice thereof was given;

3. That the injury was not occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another;

4. That the injury did not result solely from the intoxication of the injured employee while on duty.

5. That the contents of medical and surgical reports introduced in evidence by claimants for compensation shall constitute prima facie evidence of fact as to the matter contained therein.

However, these are rebuttable presumptions and if there is substantial evidence to the contrary, the claimant has the burden of establishing that the injury or death is causally related to employment.

Denise Petrocelli’s husband died while coaching a high school basketball game. Mrs. Petrocelli filed a claim for workers' compensation death benefits.

The death certificate listed as Mrs. Petrocelli’s husband’s cause of death as “a spontaneous rupture of the splenic artery with hemoperitoneum, due to portal hypertension complicating cirrhosis of the liver and chemotherapy for treatment of a primitive neuroectodermal tumor of the right adrenal gland.” A Workers' Compensation Administrative Law Judge ruled that the Workers' Compensation Law §21 presumption of compensability had been rebutted by the statements of the cause of death set out in the death certificate. Mrs. Petrocelli was directed to produce evidence of causally related death. Once this was done, the employer would have an opportunity to produce a consultant's report on the same issue.

The Workers' Compensation Board affirmed the ALJ’s finding and Mrs. Petrocelli appealed.

The Appellate Division sustained the Board’s determination, ruling that “irrefutable proof excluding all . . . conclusions other than that offered by the employer that the accidental injury was not work related” is not required to rebut a Workers’ Compensation Law Section 21 presumption.

In this instance, said the court, evidence contained in the death certificate indicates that Mrs. Petrocelli’s husband’s death was directly caused by factors not related to his work. Accordingly, the court declined to disturb the Board's finding that the Section 21 presumption was overcome, requiring Mrs. Petrocelli to come forward with proof of a causally related death.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07058.htm

Workers’ compensation benefits discontinued upon individual’s retirement based on a finding that he had “removed himself from the labor market”

Workers’ compensation benefits discontinued upon individual’s retirement based on a finding that he had “removed himself from the labor market”

Richardson v Schenectady City School Dist., 2012 NY Slip Op 05230, Appellate Division, Third Department

Dana Richardson objected to a Workers' Compensation determination that he had voluntarily removed himself from the labor market and denied his claim for workers' compensation benefits.

Richardson, a health teacher for the Schenectady City School District, sustained a variety of compensable injuries, including injuries to his head and back, while breaking up a fight between students in February 2006. In December 2008, he submitted a letter to the school district advising it that he would be retiring effective June 2009.

After the effective date of Richardson’s retirement, the school district and its workers' compensation carrier moved to suspend benefits based upon Richardson's “voluntary withdrawal from the labor market”. Ultimately, Workers' Compensation ruled that Richardson had, indeed, withdrew from the labor market and as a result was no longer entitled to awards upon his retirement in 2009.

The Appellate Division affirmed Workers' Compensation’s decision, explaining that “Whether [Richardson’s] retirement constituted a voluntary withdrawal from the labor market presented a factual issue for the Board, and its determination will not be disturbed if supported by substantial evidence.” In this instance Workers' Compensation relied on the report of a physician who performed an independent medical examination and opined that, while Richardson suffered from a moderate to marked disability, he was capable of working in a modified duty capacity.

Another element that was considered: Richardson’s letter informing the school district indicated that “he was taking advantage of a very favorable retirement incentive.” Richardson did not indicated that his physical disabilities played a role in his decision to retire and, in addition, he testified that he never discussed retirement with his doctors, did not advise the employer that he was retiring due to his disabilities and never asked for an accommodation to return to work within his restrictions.

Although there was “evidence that may have supported a different result,” the Appellate Division said that the determination was supported by substantial evidence and thus would not be disturbed.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05230.htm

Treating groups in the collective bargaining unit differently does not always constitute to a violation of the union’s duty of fair representation

Treating groups in the collective bargaining unit differently does not always constitute to a violation of the union’s duty of fair representation

Calkins v Police Benevolent Assn. of N.Y. State Troopers, Inc., 55 AD3d 1328

Thomas E. Calkins and five other retired State Troopers were among some 72 retirees rehired as "Special Troopers" on a temporary basis in 2001. They commenced this lawsuit in an effort to recover wage and benefit increases negotiated by the Police Benevolent Association of New York State Troopers [PBA] pursuant to a collective bargaining agreement (CBA) between it and the State of New York

Calkins charged the PBA violated its duty of fair representation as the exclusive bargaining agent for the Special Troopers as a result of the PBA excluding the Special Troopers from expanded duty pay and increases in longevity pay in an effort to obtain a substantial increase in longevity pay for the other State Troopers in the unit represented by the PBA. The Special Troopers’ exclusion was reflected in Memorandum of Agreement signed by the PBA and the State and subsequently ratified by PBA’s membership.

Supreme Court granted the PBA’s motion for summary judgment dismissing the Calkins' action and Calkins appealed.

The Appellate Division commence its review of the appeal by noting that in order “To establish that a bargaining agent breached its duty of fair representation, a plaintiff must show that the bargaining agent's conduct was arbitrary, discriminatory, or in bad faith,” citing Civil Service Bar Assn., Local 237 v City of New York, 64 NY2d 188. To do so, said the court, the complaining party must provide substantial evidence of fraud, deceitful action, or dishonest conduct, or evidence of discrimination that is intentional, severe, and unrelated to legitimate objectives of the collective bargaining representative.

Here, however, the fact that the PBA treated the Special Troopers differently from other State Troopers represented by it in its negotiations for a new collective bargaining agreement does not amount to a violation of the duty of fair representation. The court found that the PBA “met its initial burden on the motion by establishing that it undertook ‘a good-faith balancing of the divergent interests of its membership and [chose] to forgo benefits which may be gained for one class of employees in exchange for benefits to other employees.’"

Further, said the Appellate Division, the record demonstrates that the PBA did not misrepresent its negotiating position. A "Contract Update" memorandum sent to its members expressly stated that the Special Troopers were excluded from "all new monetary aspects of the contract."

As the record before it did not demonstrate that the PBA’s conduct was arbitrary, discriminatory or in bad faith, the Appellate Division sustained the lower court’s granting the PBA’s motion for summary judgment.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07368.htm

Simple majority vote required for most personnel actions taken by a Board

Simple majority vote required for most personnel actions taken by a Board

Inquiry from a NYPPL reader

From time to time a reader will submit a question concerning a personnel matter that may be of general interest to the readers of New York Public Personnel Law. In this instance the reader submitted an inquiry regarding the termination and reinstatement of police officers or firefighters by a Town or Village Board. The question: "Does a Town Board or a Village Board need a 'super majority' to either terminate or reinstate a police officer or firefighter?"

In your editor's opinion, unless there is a law, rule, regulation or a provision in a collective bargaining agreement providing otherwise, generally all that is required to appoint, suspend, terminate or reinstate an individual to a position is a simple majority of a board when a board is the “appointing authority.”

For example, Education Law Section 2573(1)(a) permits the termination of a probationary teacher "at any time during [the individual's] probationary period, on the recommendation of the superintendent of schools, by a majority vote of the board of education" while Education Law Section 2509(2) states that a majority vote of a school board for tenure is required to grant a probationary teacher tenure.

With respect to the granting of tenure by a board of education, the Commissioner of Education rejected the theory that a majority voting against tenure was required to deny a teacher tenure in the district [Decisions of the Commissioner of Education Decision No. 14,337]. In other words, unless there is an affirmative vote by a majority of the members of the school board to grant the individual tenure, he or she cannot claim tenure except in those relatively rare situations where the individual attains tenure by acquiescence or estoppel by operation of law.

As to a “super-majority” vote requirement, in some instances this is provided for by statute.

In Headriver, LLC v. Town Bd. of Town of Riverhead, 2 N.Y.3d 766, the Court of Appeals pointed out that where a planning commission recommends that the application for a special use permit be denied, General Municipal Law §239-m requires a “super-majority” vote by the town board in order to overturn the commission’s recommendation.

In Headriver, following a public hearing, the Board voted 3-2 to grant the special use permit. As the statutory super-majority requirement [i.e., a 4-1 vote], the commission's recommendation had not been overturned by the Board as the statute required “a vote of a majority plus one of all the members thereof.”

In another case, the court ruled that the Brookhaven Town Board violated its own procedures when it considered a resolution less than 90 days after earlier rejecting it. The Board’s procedure mandated that "A Resolution, Local Law or Ordinance that receives less than a majority of votes shall not be reintroduced for ninety days (90) or unless this rule is waived by a super-majority vote of the Town Board." [East End Property Co. No. 1 LLC v. Town Bd. of Town of Brookhaven, 15 Misc.3d 1138(A)].

Additionally, General Construction Law §41 requires a majority of the entire board to take any official action. Relying on this provision, the Commissioner of Education ruled that a school board may not adopt a policy requiring affirmative votes by more than a majority of the whole number of the board to take official action because neither the Education Law nor the General Construction Law authorizes a board to adopt requirements in excess of those already provided by statute (Miller, 17 Ed Dept Rep 275).

In contrast, Education Law §3016(2) requires a two-thirds vote of the board to appoint a relative of a board member to a teaching position, rather than the simple majority to appoint a non-relative, thus requiring a "super-majority" to appoint a board member's relative to a teaching position.

As earlier noted, a “super-majority” may be “a majority of all voting members of a body, plus one;" a specified number such as a two-third or three-quarter vote; or in rare cases, a unanimous vote by the body.

On a related issue, "Determining if a quorum required to conduct official business is present," see Formal Opinions of the Attorney General 2008-F1.

Destruction or loss of evidence

Destruction or loss of evidence

Dep't of Correction v. Archibald, OATH Index Nos. 2214/08, 2215/08 & 2216/08

OATH Administrative Law Judge John Spooner rejected a correction officer's motion to dismiss disciplinary charges filed againsthim based upon the spoliation of certain logbooks sought as evidence. Explaining that under New York law, sanctions for spoliation of evidence are appropriate where a litigant intentionally or negligently disposes of crucial evidence before the adversary has an opportunity to inspect them, the ALJ concluded that the officer failed to establish how the logbooks disappeared or how their disappearance would prejudice his defense.

 

Courts will defer to an administrative decision made by an agency pursuant to its authority if it acted rationally within its area of expertise

Courts will defer to an administrative decision made by an agency pursuant to its authority if it acted rationally within its area of expertise

Roberts v Gavin, 2012 NY Slip Op 05239, Appellate Division, First Department

Lillian Roberts, Executive Director of District Council 37, AFSCME, AFL-CIO [DC 37], petitioned Supreme Court seeking an order annulling the Personnel Review Board of the New York City Health and Hospitals Corporation [PRB] determination the Health and Hospitals Corporation [HHC] decision to restructure its layoff units in response to a recent financial crisis.

Supreme Court dismissed DC 37’s petition; the Appellate Division affirmed the lower court’s ruling.

HHC, which initially had a single corporation-wide layoff unit that included all of its facilities throughout New York City, subsequently created smaller layoff units based on individual hospitals and health care facilities within HHC. In 2009, in response to financial pressures faced by the City, HHC again restructured its layoff units by creating eighteen additional, smaller, layoff units within the existing hospital and medical centers that had previously been designated as the layoff units. HHC then announced plans to either close or reduce staff at the clinics and programs designated as the new layoff unit, which would affect about 87 HHC employees.

After noting that Supreme Court “should not have dismissed the proceeding as time-barred,” the Appellate Division considered the merits of DC 37’s petition.

DC 37’s contended that PRB’s action was arbitrary and capricious. 

The Appellate Division said that an administrative body’s act or omission is arbitrary if it "is without sound basis in reason and is generally taken without regard to the facts," citing Pell v Board of Educ. of Union Free School Dist., 34 NY2d 222. In contrast, said the court, “Where a rational basis exists for an agency's action, a court may not substitute its judgment for that of the agency, and the agency's determination, acting pursuant to legal authority and within its area of expertise, is entitled to deference.”

The Appellate Division said that DC 37 failed to show that PRB's upholding HHC's creation of additional layoff units was arbitrary or capricious, or affected by an error of law, pointing out that HHC acted consistent with its past practice of designating hospital programs as layoff units.

Citing the relevant HHC Rules, which, in pertinent part, sets out HHC’s the authority to amend its own rules and regulations and which, in particular, provides that HHC "may by rule designate an individual facility or division of any facility of [HHC] as separate units for layoff or demotion under this rule," the court concluded that the HHC Rules explicitly grant HHC the discretion to designate programs and clinics of HHC facilities as layoff units. 

At the hearing, HHC explained that the closing of the clinic and hospital-based programs was necessary to provide continuity of patient care in light of the budget deficit crisis facing the City. And in its decision, PRB found that HHC's actions were predicated on budgetary deficits that required closure and/or consolidation of programs and clinics in order to minimize the impact on patient care. PRB's decision was consistent with its previous precedent that "a presumption of regularity exists in the establishment of separate layoff units, until it is demonstrated that the layoffs were not done in accordance with a rational plan" (PRB Decision No. 682 [May 27, 1992] [emphasis in original]).

Noting that "A public employer may abolish civil service positions for the purpose of economy or efficiency," the court rejected DC 37’s claim that the creation of the new layoff units violated the seniority and displacement rights of certain employees, commenting  “although some longtime employees may lose their jobs, and newer employees may not,” in the absence of any nonconclusory showing of bad faith, it declined to disturb HHC's determination establishing the additional layoff unit.

Recognizing that there may have been a different way for HHC to structure its layoff plan, the Appellate Division said that it could not say that the agency acted in an arbitrary or capricious manner as "a court's opinion that a particular outcome is not fair or is not in the interests of justice is not sufficient to overcome the deference to be afforded an agency acting rationally within its area of expertise" and declined to substitute its judgment as to how HHC “should implement personnel decisions when determining how best to provide health care to the people of New York City” as to do so “would be an unwarranted intrusion into the managerial prerogative of HHC, which acted within its rule-making authority.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05239.htm

Disqualifying an individual who has intentionally made a false statement of any material fact in his or her application for public employment

Disqualifying an individual who has intentionally made a false statement of any material fact in his or her application for public employment

United States v. Xavier Alvarez, USSC, Docket #11-310

Civil Service Law §50.4, in pertinent part, provides that “The state civil service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible …

“(f) who has intentionally made a false statement of any material fact in his [or her] application; or

“(g) who has practiced, or attempted to practice, any deception or fraud in his [or her] application, in his examination, or in securing his [or her] eligibility or appointment….”

Are these provisions still valid in view of the Supreme Court's ruling in United States v Alverez concerning false speech that is protected by the First Amendment?

In a word, yes! 

In holding the Stolen Valor Act, 18 U.S.C. §704(b) “facially invalid under the Free Speech Clause of the First Amendment,” Justice Kennedy, writing for the majority, explained: “Permitting the government to decree [Alvarez's false claim that he had been awarded the Congressional Medal of Honor] to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse govern­ment authority to compile a list of subjects about which false statements are punishable. *

That governmental power, said the majority, "has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. [See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003)]. Were this law to be sus­tained, there could be an endless list of subjects the Na­tional Government or the States could single out."

In contrast, Justice Kennedy pointed out that “Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment,” citing Virginia Bd. of Pharmacy, 425 U. S., at 771** [emphasis supplied].

Thus it seems clear that the State Civil Service Department or a municipal civil service commission may lawfully disqualify an individual for public employment pursuant to Civil Service Law §50.4(f) and, or, §50.4(g), consistent with the due process provisions available to the applicant or employee.***.

* Justice Kennedy noted that “The statements [made by Alvarez] do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.”

** In Virginia the Supreme Court held that “fraudulent speech generally falls outside the protections of the First Amendment.”

*** §50.4 provides that “ No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.

The Alvarez decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf

A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty

A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty

Smeraldo v Rater, 55 AD3d 1298

Timothy J. Smeraldo brought an Article 78 proceeding challenging the penalty of termination of his employment with the Jamestown Police Department after he was found guilty of conduct that was disrespectful of a superior officer. Smeraldo contended that the penalty of termination is so disproportionate to the offense as to be shocking to one's sense of fairness. In addition, Smeraldo alleged that the Hearing Officer improperly relied upon facts that were not in evidence.

The Appellate Division rejected Smeraldo’s claim that penalty imposed was “shocking to one’s sense of fairness. The court said that it is well established that courts must uphold the disciplinary penalty imposed by an appointing authority unless, as a law, it is an abuse of discretion, citing Kelly v Safir, 96 NY2d 32.

The Appellate Division said that "A police force is a quasi-military organization demanding strict discipline" and "great leeway” must be accorded to “determinations concerning the appropriate punishment, for it is the [Chief of Police] . . . who is accountable to the public for the integrity of the Department."

In this instance the Hearing Officer found that Smeraldo had made a remark in front of several other officers that was disrespectful of a superior officer. Further, said the court, “the record establishes that [Smeraldo] has a prior disciplinary record, including a 30-day suspension and a demotion in rank that occurred less than one year prior to the present offense. In addition, the decision reports that Smeraldo that settlement agreement with the Department for the charge resulting in that suspension and demotion, Smeraldo expressly stated that "he will endeavor not to violate any other Department policy in the future" and that there was evidence at the hearing that he had previously been counseled on the issue of making inappropriate comments, including comments that demonstrated insubordination.

Noting that the settlement agreement was received as evidence in the course of the disciplinary hearing, the Appellate Division concluded that there was no basis for Smeraldo’s claim that the Hearing Officer improperly relied upon facts not in evidence.

The full text of the decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07336.htm

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