Title VII does not bar the selection of an individual because of the individual’s personal relationship with the appointing authority

Title VII does not bar the selection of an individual because of the individual’s personal relationship with the appointing authority
Fella v County of Rockland, 297 A.D.2d 813

According to the court's decision, the Rockland County Director of Employee Rights and Equity Compliance concluded that Rockland County Commissioner of Hospitals Peter T. Fella had created a hostile work environment by promoting a person with whom he was then having a romantic relationship to a vacant assistant director of nursing position.*

The Director had determined that Fella violated the County's Equal Employment Opportunity Policy [EEOP] because some employees said that they felt uncomfortable at work because Fella had this "romantic relationship" with a co-employee. This, said the Director, constituted a hostile work environment and, as such, violated the EEOP.

As a result, C. Scott Vanderhoef, County Executive of the County of Rockland, suspended Fella from his position without pay for a period of 30 days.

Supreme Court vacated the County Executive's action and the Appellate Division sustained the lower court's ruling.

In its decision the Appellate Division noted that the County's EEOP defined sexual harassment as "unwelcome sexual advances, requests for sexual favors, sexual demands or conduct of a sexual nature which `had the purpose or affect [sic] of unreasonably interfering with an [affected] person's work performance or creating an intimidating, hostile or offensive work environment.'"

Citing DeCinto v Westchester County Medical Center, 807 F2d 304, the court explained that there is no sexual discrimination or harassment involved "where the conduct complained of by the employee involves an isolated act of preferential treatment of another employee due to a romantic, consensual relationship." Accordingly, said the court, the County Executive's finding that Fella created a hostile work environment in violation of the EEOP was arbitrary, capricious, and without a rational basis, and was therefore properly annulled but the Supreme Court.
NYPPL

Using tape-recorded testimony in an administrative proceeding

Using tape-recorded testimony in an administrative proceeding
Miller v Howard Safir, App. Div., 259 AD2d 337

John Miller, Jr. challenged the New York City police commissioner’s revocation of his designation as a Special Patrolman. The commissioner had determined that Miller was “unfit for the position of Special Patrolman” following an incident during which Miller assaulted an individual.

The Appellate Division noted that the police commissioner’s determination was supported by substantial evidence, including Miller’s own admission that he knocked down the individual’s door and assaulted her.

However, Miller complained that the determination was based on a tape recording by the individual rather than her giving her personally testifying in the presence of the hearing officer.

The Appellate Division ruled that the tape-recorded evidence, which was sworn testimony, constituted substantial evidence, citing Abdur-Raheem v Mann, 85 NY2d 113 and Butler v Coughlin, 193 AD2d 973 in support of its ruling.
NYPPL

Term appointments of employees in the Classified Service

Term appointments of employees in the Classified Service
Wheeler v Washington Co., 259 AD2d 902

Term appointments are rare in the classified service. The Wheeler case involves such a type of appointment and considers the rights of an incumbent upon the expiration of his or her term of office.

Section 100 of the Highway Law provides that a county Superintendent of Highways is appointed for a four-year term and “may be removed from office for malfeasance or misfeasance before expiration of the term.”*

Kenneth F. Wheeler was initially appointed to the position of Superintendent of Highways for a four-year term in 1987 and was reappointed to an additional four-year term, beginning on January 1, 1993. In 1991, his job title was changed to Superintendent of Public Works. At the conclusion of his term on December 31, 1996, Wheeler was not reappointed but remained as Superintendent until a successor was appointed by the Board of Supervisors on February 3, 1997.

Claiming that his termination was unlawful, Wheeler sued.

According to the decision, Wheeler’s most recent term of office as Superintendent of Public Works commenced on January 1, 1993 and expired on December 31, 1996. The issue, as the Appellate Division saw it, was “whether the rights afforded a permanent, competitive employee under Civil Service Law Section 75 extended to [Wheeler] after the expiration of his term of office.”

Wheeler contended that his position was wrongfully reclassified in 1996 from competitive to “unclassified” or noncompetitive status and that his position did not meet the requirements for “unclassified” status. Relying on his alleged permanent, competitive status in the classified service, Wheeler argued that Section 75 barred his termination except for misconduct or incompetence.

The court said that contrary to Wheeler’s contention, he was not terminated or removed from office but rather, his four-year term pursuant to Highway Law Section 100 merely expired. Since he was not reappointed and his successor had not yet been chosen, the position became vacant at the expiration of his term on December 31, 1996.

However, until his successor took office in February 1996, Wheeler was a holdover and an at-will employee as provided by Section 5 of the Public Officers Law. Therefore, the court concluded, Section 75 was inapplicable and thus Wheeler was not entitled to a review of the County’s decision not to reappoint him after completion of his then current term of office.

As to the question of whether Wheeler’s position was wrongfully reclassified from the competitive class to another jurisdictional classification, the Appellate Division said that the change in jurisdictional classification was irrelevant since Wheeler was not removed from his position prior to the expiration of his term of office.

The decision implies that a person holding a term appointment authorized by law, unless reappointed, is to be deemed terminated upon the expiration of his or her term “by operation of law” notwithstanding the fact that he or she may otherwise be protected against removal except for incompetence or misconduct by the provisions of Section 75 of the Civil Service Law.

* Among others in the classified service holding a “term appointment” is the personnel officer of a county, suburban town, or a city where such a position has been established. Such a personnel officer is appointed for a term of six years [Section 15.1.(b), Civil Service Law].
NYPPL