Procedural errors and omissions require the remanding the decision terminating plaintiff employees for further consideration

Procedural errors and omissions require the remanding the decision terminating plaintiff employees for further consideration

Four former employees of the City challenged the City’s terminating their employment.

Supreme Court referred the issues of the employees' "employment status at the time of their termination and . ... whether any of them were required to exhaust any administrative remedies under the Civil Service Law prior to commencing this Article 78 proceeding" to a Judicial Hearing Officer (JHO).

The JHO issued a determination holding that “none of the employees had a right to a post-termination [sic] hearing under the Civil Service Law.” Accordingly, said the JHO, none of the employees had any duty to exhaust administrative remedies. The JHO also found that none of the employees was a policymaking employee and, thus, that they could not be fired merely for political reasons and further ruled that all four had been dismissed from their positions with the City for political reasons.

The City filed "objections" to the JHO's determination. 

Specifically, the City objected to the JHO's determination that none of the employees was a policymaking employee. Additionally, the City asserted that the JHO went beyond the scope of the order of reference by determining that the employees were fired for political reasons.

The Appellate Division remitted the employees' petition to Supreme Court, explaining:

1. The challenged determinations, relating to the termination of the employees' employment, were not "made as a result of a hearing."

2. The administrative record was not sufficient for it to decide the entire proceeding on the merits in the interest of judicial economy.

3. Any motion for reconsideration of the substantive issues decided by the JHO must be directed to the JHO for resolution.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06953.htm

Reimbursing a school board member's legal expenses incurred in litigation

Reimbursing a school board member's legal expenses incurred in litigation  

Decisions of the Commissioner of Education, Decision No. 16,422

The Commissioner of Education, after denying the application of the school board seeking to remove one of its members for allegedly “disclosing confidential information to a third party,” considered one additional administrative matter. The board member that the board sought to have removed from the board asked the Commissioner to grant her a certificate of good faith pursuant to Education Law §3811(1). Such a certificate  would required the school district to reimburse her the “reasonable legal expenses” she incurred in the proceeding.

§3811(1), in pertinent part, provides for the reimbursement of reasonable legal expenses incurred by a board member when “the trustees or board of education of any school district … have been or shall be instructed by a resolution adopted at a district meeting to defend any action brought against them, or to bring or defend an action or proceeding touching any district property or claim of the district … as well as all costs and damages adjudged against them…."

The Commissioner rejected the board member’s request, explaining that Education Law §3811(1) does not provide for the reimbursement of legal expenses incurred by a board member in defending “a criminal prosecution or an action or proceeding” brought against a board member by a school district, including proceedings before the Commissioner of Education.

Accordingly, said the Commissioner, the board member was not entitled to a certificate of good faith because the application seeking the removal of the board member was brought by the school district of which the board member was an officer 

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

http://www.counsel.nysed.gov/Decisions/volume52/d16422.html

Found guilty of charges of AWOL, incompetent performance and being disrespectful to the superior, employee terminated

Found guilty of charges of AWOL, incompetent performance and being disrespectful to the superior, employee terminated

The Department of Environmental Protection charged that a sewage treatment worker was incompetent due to excessive absence and AWOL.  The employee was also charged with being disrespectful to a supervisor. 

Supervising Administrative Law Judge Joan R. Salzman found that the uncontested proof that employee was absent on 287 of 391 work days during an 18-month period, an absence rate of 73%, established the incompetence charge.  Judge Salzman also found that agency proved the AWOL and disrespect charges.  

Noting respondent’s “abysmal attendance record (exacerbated by his use of profanity to his supervisor),” Judge Salzman found the AWOLs and the incompetence due to excessive absence to be independent bases for termination, and recommended termination of the individual’s employment. Her recommendation was adopted by the appointing authority.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1420.pdf

In hybrid Article 78/42 USC 1983, a timely 42 USC 1983 action will survive notwithstanding the fact that the Article 78 action was untimely

In hybrid Article 78/42 USC 1983, a timely 42 USC 1983 action will survive notwithstanding the fact that the Article 78 action was untimely

The Appellate Division reversed the Supreme Court’s denial of a petition filed by a tenured educator alleging that the New York City Department of Education (DOE) improperly terminated her in violation of her rights to procedural due process under both the State and Federal Constitutions.

The teacher had filed an Article 78 petition, which must be filed within four [4] months of the act or omission complained of to be timely and, in addition, raised essentially the same claims in her complaint under 42 USC §1983, which has a three-year statute of limitations. Supreme Court had ruled that the teacher’s Article 78 petition was untimely and dismissed the action notwithstanding the fact that her 42 USC §1983 had been timely filed within her Article 78 petition.

The Appellate Division disagreed with Supreme Court’s action, noting that the teacher had filed a “hybrid article 78 proceeding/42 USC §1983 action.” The Appellate Division explained that as federal and state courts possess concurrent jurisdiction over 42 USC §1983 actions, to hold that the teacher could not bring her 42 USC §1983 claims solely because she asserted them in the same action in which she seeks Article 78 relief due to the latter's much shorter statute of limitations would impermissibly conflict with 42 USC §1983's broad remedial purpose and result in different outcomes based solely on whether the federal claims are brought in state or federal court.

The court concluded that the teacher’s petition properly raised claims under 42 USC §1983 and thus her petition could be maintained as a hybrid action, citing Bistrisky v NYS Department of Correctional Services, 23 AD3d 866

Holding that the teacher’s action should be reinstated, the matter was remanded to Supreme Court.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06851.htm

Arbitration award sustained as it was rational and did not violate public policy

Arbitration award sustained as it was rational and did not violate public policy

Addressing the employer’s challenge to an arbitration award, the Appellate Division determined that the arbitrator “properly found” there was no "emergency" within the meaning of the collective bargaining agreement [CBA] that justified bypassing the contract's terms regarding assignment of personnel. 

Further, said the court, the award merely enforced the terms of the parties' CBA, which already addressed the public policy issues that the employer raised in this appeal.

The award in this case, said the court, was not "totally" irrational, nor did it violate public policy. 

The Appellate Division explained that the arbitrator did not exceed her powers in making the award as the contract language relied upon by the employer “does not address the situation at issue in this matter.”

In addition, the court noted that the employer “itself requested relief that was not specified in the relevant contract language, and therefore cannot now be heard to say that the award exceeded the scope of the arbitrator's authority.”

Accordingly, the Appellate Division denied the employer's petition to vacate the arbitration award.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06764.htm

Membership in the employee organization subjects the individual to the terms and conditions set out in the relevant collective bargaining agreement

Membership in the employee organization subjects the individual to the terms and conditions set out in the relevant collective bargaining agreement

The Appellate Division, 4th Department, in a succinct decision, said that “by accepting employment as a school instructor and entering into a collective bargaining agreement as a result of his membership in the union representing him, the [school instructor] waived any right to be credited for seniority in the tenure area of teacher.”*

The court cited Dietz v Board of Educ. of Rochester City School Dist., ___ AD3d ___ [Sept. 28, 2012] and Wiener v Board of Educ. of E. Ramapo Cent. School Dist., 90 AD2d 832, appeal dismissed 58 NY2d 1115), in support of its ruling.

In Dietz the court noted that “… the collective bargaining agreement (CBA) between the District and the union representing petitioner provided that layoffs of ‘school instructors’ would be affected within the four separate categories of school instructors identified in the CBA rather than within tenure areas; that separate seniority lists for purposes of layoffs are maintained for school instructors; and that, ‘[i]n the event that positions are abolished, school instructors shall not have rights to displace teachers in regular school programs having less seniority, nor shall teachers have rights to displace school instructors having less seniority.’"

* See Szumigala v Hicksville Union Free School District, 148 AD2d 621. In Szumigala  the Appellate Division, citing Cheektowaga v Nyquest, 38 NY2d 137, ruled that a seniority clause in a Taylor Law agreement violated §2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority with the District for the purposes of layoff. Further, in City of Plattsburgh v Local 788, 108 AD2d 1045, a decision involving the layoff of employees in the competitive class of the Classified Service, the court held that seniority for the purposes of layoff cannot be diminished or impaired by the terms of collective bargaining agreement, explaining  §80 of the Civil Service Law [and, presumably, §80-a of such law] "reflects a legislative imperative" that the City was powerless to bargain away.


The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06726.htm

Filing an appeal to the Commissioner of Education as a class action.

Filing an appeal to the Commissioner of Education as a class action.
Decisions of the Commissioner of Education, Decision No. 16,417

Some 90 paraprofessional employee of the school district filed an appeal to the Commissioner of Education challenging a decision of the board of education classifying them as “teacher aides” rather than “teaching assistants,” which appeal was characterized as a “class action.”

Addressing the school district’s object to the filing of the appeal as a “class action,” the Commissioner observed that “An appeal may only be maintained on behalf of a class where the class is so numerous that joinder of all members is impracticable and where all questions of fact and law are common to all members of the class, citing 8 NYCRR §275.2.” In so doing, said the Commissioner, the petitioner is required to [1] set out the number of individuals he or she seeks to represent and [2] must show that all questions of law and fact would be common to all members of the purported class.

The petitioners had filed the appeal “on behalf of themselves and approximately 90 paraprofessionals” designated by the school district as serving in teacher aide* positions, but who allegedly were performing the duties of a teaching assistant.** 

The Commissioner, however, ruled that while the petitioners had identified each of these individuals in the exhibits to their petition, “they fail to demonstrate that all the potential class members have the same interests or claims.” Considering “the surveys submitted on behalf of these individuals,” the Commissioner said that the surveys indicated that the individuals had “differing job duties, and allege varying amounts of instructional duties.” The Commissioner also noted that the surveys also showed that not all of these individuals held a teaching assistant certificate.

The Commissioner decided that the petitioners: had not clearly demonstrated that all questions of law and fact would be common to all members of the class.Further, the Commissioner noted that the petitioners subsequently identified additional individuals as purported class members and requested, in the alternative, that they be added as petitioners, which request, he said, precluded a finding that the class members are too numerous.

The Commissioner denied the petitioners’ request for “class certification” but granted its motion that the individuals so subsequently identified be included in the appeal as “added petitioners” pursuant to 8 NYCRR §275.1.

After discussing a number of significant personnel issues that could affect the status of the petitioners in their respective positions and issues related to the collective bargaining agreement between the parties, the Commissioner remanded the matter to the school district to make its determination as to whether each of the petitioners was appropriately designated as a teacher aide or should be designated as a teaching assistant. The school district's determination was to be based on an assessment of the nature and extent of the duties performed by each petitioner, consistent with the criteria set out in the Commissioner’s decision.

In effect the district is to perform a “desk audit” of the duties of each individual to determine if he or she was performing the duties of a teacher aide or a teaching assistant.

For those individuals serving in a teacher aide position performing the duties of that title and those individuals serving in a teaching assistant position performing the duties of that title, and assuming that they are qualified to serve in that capacity, no further action would be required.

As to those individuals that the school district determines are serving in a teacher aide position but are  performing the duties of a teaching assistant, assuming, but not deciding, that each such individual is qualified for appointment to that title, the Commissioner directed that “any petitioner ... who spends a substantial portion of time engaged in carrying out such duties, [is to] be appointed to a teaching assistant position and provided with all seniority, tenure and retirement rights.”

The decision is silent with respect to those individuals the school district determines are serving in a teaching assistant position but are actually performing the duties of a teacher aide. Presumably such persons are to be appointed to the title of teacher aide, subject to the approval of the civil service commission having jurisdiction.

* Teacher aide positions are in the classified service in the civil service of the State and the incumbents of such positions are subject to the State’s Civil Service Law and the rules and regulations promulgated thereunder. Such positions are typically positions placed in the noncompetitive class of the classified service.

** Teaching assistant positions are among those certified by the Commissioner of Education to the New York State Civil Service Commission pursuant to Civil Service Law §35(g) as being in the teaching and supervisory staff of a school district and such positions are in the unclassified service of the civil service of the State.

The decisions is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16417.html

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of October 1 - 7, 2012 [Click on the caption to access the full report]

MTA Financial Outlook Slowly Improving But Risks Remain

The financial condition of the Metropolitan Transportation Authority has strengthened over the past two years, but the Authority faces continued challenges according to a reportreleased Wednesday by New York State Comptroller Thomas P. DiNapoli.


DiNapoli: LIPA Customers Pay More For Less

Long Island Power Authority ratepayers paid an average of $463 more per year for electricity in 2011 than they did in 2001, according to a reportreleased Wednesday by State Comptroller Thomas P. DiNapoli. The report is the latest in a series by DiNapoli on public authorities.


DiNapoli Releases Bond Calendar For Fourth Quarter

New York State Comptroller Thomas P. DiNapoli Tuesday announced a tentative schedule for the planned public sale of obligations for the state, its major public authorities, the City of New York, and the city’s major public authorities during the fourth quarter of 2012.


Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the following audits:

1. Town of Carmel;
2. Town of Lysander; and,
3. Town of New Paltz.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed and audit of the Hartford Central School District.

Vacating a finding of being guilty of two of five disciplinary charges requires remanding the matter for reconsideration of the disciplinary penalty to be imposed

Vacating a finding of being guilty of two of five disciplinary charges requires remanding the matter for reconsideration of the appropriate penalty to be imposed

The appointing authority adopted the findings and recommendation of a hearing officer that the employee was guilty of five charges of misconduct and terminated the individual’s employment.

Supreme Court dismissed the former employee’s petition challenging the appointing authority’s action.

The Appellate Division disagreed with this result, explaining that upon its review of the record it found that  the hearing officer's finding the individual guilty of two of the five charges had to be annulled and those two charges dismissed. In the opinion of the court, there was a lack of substantial evidence to support a finding that the employee was guilty of these two charges.

As the appointing authority had imposed a penalty based on the hearing officer’s finding that the individual was guilty of all five charges, the court said that the penalty imposed had to be vacated and the matter remit to the appointing authority to permit it to consider the appropriate penalty to be imposed upon the individual based on the individual having been found guilty of the three surviving charges

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06608.htm

Compilation of adjudicated New York State IDEA impartial hearing decisions published

Compilation of adjudicated New York State IDEA impartial hearing decisions published

Professor Perry Zirkel, University Professor of Education and Law, Lehigh University, has published an annotated list of rulings involving Individuals with Disabilities Education Act (IDEA) and §504 of the Americans with Disabilities Act (ADA) handed down by 2nd Circuit United States Court of Appeals and New York State courts.

Professor Zirkel notes that with the exception of the District of Columbia, New York State is the leading jurisdiction in terms of adjudicated impartial hearings under IDEA.

The case entries are organized in approximate chronological order within common special education categories under IDEA, starting with eligibility, free appropriate public education (FAPE) and least restrictive environment (LRE), and ending with decisions under Section 504. Included are chapters addressing appropriate education, mainstreaming, discipline issues and attorney’s fees.

The compilation is posted on the Internet at http://www.p12.nysed.gov/specialed/dueprocess/NYand2dCirCaseLaw-PZ.pdf and may be downloaded without charge. 

Policy and Guidelines Prohibiting Discrimination and Harassment of Students

Policy and Guidelines Prohibiting Discrimination and Harassment of Students

On September 14, 2012 the Commissioner of Education issued an Emergency Rule entitled “Policy and Guidelines Prohibiting Discrimination and Harassment of Students” [I.D. No. EDU-07-12-00011-E] which took effect September 15, 2012.

The Rule was published in the October 3, 2012 issue of the New York State Register.

For a copy of this Emergency Rule sent via return e-mail, e-mail your request to publications@nycap.rr.comand type “Emergency Rule” in the subject line.

Collective bargaining agreement provided for layoffs of school instructors within separate categories of school instructors rather than within tenure areas

Collective bargaining agreement provided for layoffs of school instructors within separate categories of school instructors rather than within tenure areas

In this Article 78 action an individual laid off when his position was abolished by the school district contended that based on the duties he performed as a "school instructor/transition counselor", he was entitled to seniority rights within the "special subject tenure area" (tenure area) of school social worker. Accordingly, he argued, he was not the person with the least seniority within the school social worker tenure area at the time his position was abolished. Citing 8 NYCRR 30-1.8 [b] [9], he contended that the school district violated Education Law §2585(3) in terminating his employment as a result of its abolishing his position.

When Supreme Court dismissed his Article 78 petition, the individual appealed.

Sustaining Supreme Court’s ruling, the Appellate Division rejected the individual's arguments.

The court ruled that “the collective bargaining agreement (CBA) between the District and the union representing petitioner provided that layoffs of ‘school instructors’ would be affected [sic] within the four separate categories of school instructors identified in the CBA rather than within tenure areas; that separate seniority lists for purposes of layoffs are maintained for school instructors; and that, ‘[i]n the event that positions are abolished, school instructors shall not have rights to displace teachers in regular school programs having less seniority, nor shall teachers have rights to displace school instructors having less seniority.’"*

The Appellate Division ruled that “by accepting employment as a school instructor and entering into the CBA as a result of his membership in the union, the individual had waived any right to be credited for seniority in the tenure area of school social worker, [Antinore v State of New York, 49 AD2d 6].”

* In the event a board of education abolishes a position, the services of the tenured teacher having the least seniority in the school district or BOCES “within the tenure area of the position abolished shall be discontinued.” In City of Plattsburgh v Local 788, 108 AD2d 1045, the Appellate Division held that this element – seniority – for the purposes of layoff can neither be diminished nor impaired by the terms of a collective bargaining agreement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06412.htm

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

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click on http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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

School district may be held liable for the negligent hiring and retention of its employees

School district may be held liable for the negligent hiring and retention of its employees

In an action alleging that a school employee sexually abused a student, Supreme Court denied the school’s and the school district’s motions for summary judgment dismissing the complaint.

The Appellate Division affirmed the lower court’s ruling, explaining that::

1. The school and the school district failed to make a prima facie showing that they were not negligent with respect to the hiring and retention of the school district employee who allegedly sexually abused the student; and

2. The school and the school district failed “to establish, prima facie, that they discharged their duty to provide adequate supervision of the infant plaintiff.”

The Appellate Division noted that although “an employer cannot be held vicariously liable ‘for torts committed by an employee who is acting solely for personal motives unrelated to the furtherance of the employer's business,’ the employer may be held liable for the negligent hiring and retention of the employee.”

Further, said the court, “a school district has a duty to exercise the same degree of care toward its students as would a reasonably prudent parent, and will be held liable for foreseeable injuries proximately related to the absence of adequate supervision,” citing Mirand v City of New York, 84 NY2d 44

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06289.htm

Proving disciplinary charges

Proving disciplinary charges

An employee was found guilty of some of the thirty specifications of misconduct and incompetence filed against her. The hearing officer found the employee guilty of seventeen of these thirty specifications and recommended that she be dismissed from her position.

Specifications of misconduct and incompetence filed against the employee included allegations of excessive lateness, failure to properly carry out assigned duties, and actions in contradiction of established employer procedure. The hearing officer's findings and recommendations were adopted by the appointing authority and the individual was dismissed from her position. In sustaining the determination, the Appellate Division, Third Department noted that: the findings of a Hearing Examiner will be confirmed if they are supported by substantial evidence in the record even where conflicting evidence may have supported a different determination.

What constitutes "substantial evidence" is the significant issue in such cases. The decision illustrates some of the factors that courts weigh in determining whether there is substantial evidence to support the findings of the hearing officer.

The hearing officer found the employee guilty of seven of the 12 specifications concerning her alleged failure to perform assigned clerical tasks properly. The court, however, concluded that "only six of the seven specifications should be confirmed based upon the testimony proffered by petitioner's supervisor." Why? Because, explained the court, testimony that employee had typed the incorrect labels because the witness recognized the font from the individual’s typewriter was insufficient as there was testimony establishing that there were several typewriters in that office using that particular font. As the witness could not testify that she witnessed the employee preparing these folders and the employee denied that the error was hers, the court said it could not conclude that there was sufficient evidence to support this allegation.

The hearing officer also found the employee guilty of six of thirteen specifications alleging that she improperly performing her duties by exceeding her authority or violating the employer’s policy. In this instance the court held that the record supported the hearing officer's findings, noting that the employee was advised of these problems in her performance in various performance evaluation, together with the need for her to improve in these areas.

With respect to disciplinary specifications focusing on the employee's use of the workplace to conduct personal business and engage in lengthy personal telephone calls, the Appellate Division ruled that the testimony of her superiors, confirmed by a co-worker, was sufficient to prove the allegations.

The court also said that it did not find any error in the hearing officer finding the employee guilty of 36 of the 48 allegations that she had arrived late for work on specified dates. These allegations, said the court, were supported either by the employee's time sheets or by testimony from her superior or co-workers.

The Appellate Division remanded the matter to the employer for its consideration of the appropriate penalty to be imposed in view of its finding the employee not guilty of certain charges and specifications. The court also said that it noted that the employee had been given numerous oral admonitions and counseling memoranda warning her of "further disciplinary action," but held that such actions did not constitute "punishment" such that the present disciplinary proceeding could be deemed duplicative.

The decision is posted on the Internet at:

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&mt=Westlaw&n=2&origin=Search&query=%22FERGUSON+V+TRAFICANTI%2C%22&rlt=CLID_QRYRLT6335626910110&rltdb=CLID_DB219026910110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA889026910110&sv=Split&tempinfo=word&vr=2.0

Suspension without pay for 270 days disciplinary penalty

Suspension without pay for 270 days disciplinary penalty

Is suspending a employee found guilty of a number of charges of misconduct without pay for 270 days lawful? After all, the Section 75 of the Civil Service Law limits such a suspension without pay for a period not to exceed two months.

The Appellate Division, Second Department, said it was appropriate under the circum­stances and sustained a 270-day suspension without pay disciplinary penalty imposed by the appointing authority on an individual after he was found guilty of:

1. Two counts of engaging in conduct unbecoming an officer,

2. One count of using employer’s equipment other than in the course of official business,

3. Four counts of engaging in unlawful conduct,

4. Two counts of failing to treat as confidential the official business of the employer, and

5. One count of making or submitting, or causing to be submitted, a false official communication, record, or statement.

The Appellate Division said that the officer's guilt with respect to these charges was supported by substantial evidence in the record.

As to the nature of the penalty imposed, the court said that the Police Department's determination regarding appropriate internal discipline to be imposed is entitled to great deference and, "under the circumstances of this case, will not be disturbed."

Although 75 of the Civil Service Law limits the suspension without pay for a period of not to exceed two months, the Appellate Division, citing Coscette v Town of Wallkill, 281 AD2 479, ruled that the penalty of suspension without pay for 270 days was permis­sible pursuant to Civil Service Law 76(4) and Nassau County Administrative Code 8-13.0.

Section 75 provides, as alternative disciplinary penalties, suspension without pay for not to exceed two months, punishment consisting of either a reprimand; or a fine not to exceed $120; or demotion in grade and title; or dismissal. In contrast, an arbitrator setting a disciplinary penalty pursuant to a contract disciplinary procedure is usually authorized to impose an "appropriate penalty" and is not limited to those prescribed in a statute such as Section 75 of the Civil Service Law.

The decisions are posted on the Internet at:

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=2&origin=Search&query=%22296+AD2D+575%22&rlt=CLID_QRYRLT4874037579110&rltdb=CLID_DB6435037579110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA7236537579110&tempinfo=word&vr=2.0

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&mt=Westlaw&n=5&origin=Search&query=%22302+AD2D+600%22&rlt=CLID_QRYRLT2327351539110&rltdb=CLID_DB7388350539110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA4989950539110&sv=Split&tempinfo=word&vr=2.0

[Leave to appeal denied, 3 N.Y.3d 611]