Employees disciplined for insubordination after failing to report co-worker's misbehavior

Employees disciplined for insubordination after failing to report co-worker's misbehavior

Hoey v PERB, 284 AD2d 633

Teacher aides employed by the Cayuga-Onondaga Board of Cooperative Educational Services [BOCES] were given specific instructions to report any concerns about classroom matters -- they were immediately to bring them to the attention of the supervisor of special education or the school principal.

According to the decision, the aides becoming aware that a teacher had engaged in bizarre and inappropriate behavior of a sexual nature with one of the students. About a month later, they reported the teacher's suspected conduct to one of their union representatives rather than BOCES's management. Two days later the union representative told BOCES of the aides' report.

Cheryle Hoey and a number of other aides were terminated after being found guilty of insubordination -- failing to comply with directives given to them directing them to report "concerns involving classroom matters." Hoey and the others challenged their dismissal, contending that they had been disciplined because of their engaging in protected union activities and filed improper practice charges with PERB.

PERB rejected the complaint and held that BOCES had not engaged in any improper practice in firing the aides. The Appellate Division sustained PERB's determination. The court ruled that the evidence amply supported PERB's findings that the aides had not been terminated for engaging in a protected activity but, rather, for failing to follow a supervisor's directive and jeopardizing the safety of a child under their supervision by failing to timely report suspected child abuse.

Although PERB agreed that the aides had engaged in a protected activity when they consulted with representatives of their union, it further determined that BOCES was not improperly motivated but, rather, had legitimate business and educational reasons for terminating Hoey and the other aides.

Freedom of Information requests

Freedom of Information requests

Chittenden v Novack, NYS Supreme Court, Westchester County, [Not selected for publication in the Official Reports]

In Chittenden, the court considered a number of issues concerning a union president's request for certain records under the Freedom of Information Law [FOIL]. Responding to a number of issues presented by the union's demand for information and records pursuant to FOIL, the court said:

1. A grievance procedure under the collective bargaining agreement was not the proper procedure for appealing the denial of FOIL requests.

2. A FOIL request for the names of all members of the police department who have been on chronic sick leave, with six questions regarding each member, is not a specific request for records.

3. Records disclosing the medical history of employees or applicants are exempt as an unwarranted invasion of personal privacy under the Public Officer's Law Section 89(2)(b)(i).

4. Attendance records or time sheets for employees that are redacted as to the medical reason for the absence are not an unwarranted invasion of personal privacy.

5. Records containing statistical data, such as the amount of sick time or vacation time accumulated or used, dates or times of an employee's attendance or absence, notations that sick leave or vacation time was charged, are relevant to public accountability and subject to disclosure.

6. Public inspections of portions of employment records or applications, which reveal an existing medical condition and/or treatment for disabilities is exempt from disclosure as “medical histories.”

7. A records access officer is not required to answer questions or analyze information on behalf of individuals or organizations making the request.

8. The agency must supply appropriate records upon its receipt of a proper request, provided such records exist, but is under no obligation to furnish records, which do not exist.

9. Intra-agency materials not subject to disclosure under FOIL. According to the ruling, “opinions, advice, evaluations, deliberation, proposals, policy formulation, conclusions or recommendations are exempt from public access” under FOIL, as are a government agency deliberative functions.

NYC Department of Sanitation employee acquitted of disciplinary charges

NYC Department of Sanitation employee acquitted of disciplinary charges

Dep’t of Sanitation v. Gonzalez (in PDF), OATH Index No. 1915/11

An OATH Administrative Law Judge found that the New York City Department of Sanitation failed to prove that a sanitation worker solicited money from an apartment building superintendent in order to remove broken furniture.

Judge John B. Spooner found that several factors, including the passage of time, an investigator’s failure to preserve a clear contemporaneous account from the complainant, and the complainant’s apparent confusion about another incident with a different worker two days later, undermined the Department’s proof and warranted dismissal of the charges.