Oath of office upon the appointment of a public officer or a public employee

Oath of office upon the appointment of a public officer or a public employee
A NYPPL review

When Lance Eggleston was appointed to the Village of Hamburg's Environmental Commission, he said that he wanted to postpone his filing his oath to support the Federal and State Constitutions until he had a chance to read the New York State Constitution. What, if any, impact could a delay in his filing his oath of office have on Eggleston's status on the commission?

First, some background concerning the filing of an oath of office by a public officer or a public employee.*

Individuals are typically required to execute an “oath of office” upon their initial appointment to a position in the public service. Section 62 of the Civil Service Law, for example, requires “every person employed by the state or any of its civil divisions” to execute a “Constitutional Oath of Office.”

If the individual refuses or willfully fails to file the “Section 62 oath”, his or her employment is to be terminated until the oath is taken and filed with the appropriate body.**

Similarly, Section 10 of the Public Officers Law mandates that “every officer” take and file “the oath of office required by law” before he or she may “enter upon the discharge” of any official duties.

What is the penalty if a public officer does not file a timely oath? Section 30.1 of the Public Officers Law provides that if an individual refuses or neglects to file his or her official oath within thirty days of the beginning of his or her term of office, the office becomes “vacant.”

In contrast to Civil Service Law Section 62's provision for the “reinstatement” of the terminated individual to employment once his or her oath is filed, nothing in Section 30.1 of the Public Officers Law provides for “automatic reinstatement” of the individual upon his or her filing of the required oath once the position becomes vacant “by operation of law.”

Presumably the individual must be reappointed to the position if he or she is to hold the office, at which time he or she would be required to file a new and timely Constitutional Oath of Office.

As to Eggleston's situation, it appears that Eggleston wanted delay his filing because he wanted to know what he would be swearing to uphold before he actually swore to support the State Constitution. In explaining his action, Eggleston said “[i]t's like signing a blank check.” In any event, Eggleston, as a public officer, will have thirty days to file his oath or the office to which he had been appointed will become vacant as mandated by Section 30.1.

It is noteworthy that Eggleston had recently retired from his position as a technology coordinator at the Hamburg Central Schools. Presumably he had executed the oath to support the Federal and State constitutions mandated of “any citizen of the United States [employed] to serve as teacher, instructor or professor in any school or institution in the public school system of the state ...” as required by Section 3002 of the Education Law upon his initial appointment by the school district.

The Constitutional oath of office required by the Civil Service Law, the Education Law, the Public Officers Law and similar provisions must be distinguished from so-called “loyalty oath” established pursuant to “anti-subversive activities” laws that were set out in former Section 105 of the Civil Service Law.

Section 105 [originally enacted as Section 12-a of the Civil Service Law of 1909] made individuals advocating the overthrow of government by force or unlawful means ineligible for employment in the public service of the State or any of its political subdivisions.

Section 105 was repealed following the U.S. Supreme Court's decision in the Keyishian case. In Keyishian, the high court held that State laws similar to Section 105, Sections 3021 and 3022 of the Education Law, were unconstitutional [Keyishian v Board of Regents, 87 SCt 675]. Sections 3021 and 3022 were enacted to provide for the “elimination of subversive persons from the public school system.”

* While not all public employees are public officers, all public officers are public employees.

** An individual affiliated with, or a member of, an Indian nation is permitted to file an alternate to the oath set out in Section 62.

Determining if the grievance is arbitrable

Determining if the grievance is arbitrable
Owen D. Young CSD v Morris, 278 AD2d 940

The significant issue in the Young Central School District case concerned determining if a grievance filed by an employee organization could be submitted to arbitration.

Susan Morris, President of the Van Hornesville Teachers Association, appealed a State Supreme Court's granting of the District's petition to stay submitting a grievance concerning prescription health insurance benefits to arbitration.

The Appellate Division, Fourth Department vacated the stay of arbitration issued by a State Supreme Court Judge. The court commented that “[t]here is a reasonable relationship between the matter in dispute, i.e., prescription health benefits, and the broad arbitration clause [in the collective bargaining agreement] that covers all grieved matters.”

In such cases, said the Appellate Division, arbitrators, rather than the courts, are to determine whether a particular grievance falls within the scope of the substantive provisions of the collective bargaining agreement, citing Board of Education v Watertown Education Association, 93 NY2d 132.

The Appellate Division ruled that the lower court “erred in determining as a matter of law that the matter is not arbitrable.”

Determining probation status when employee's service is interrupted by an absence
Johnston v Triborough Bridge and Tunnel Authority, App. Div., First Dept., 278 A.D.2d 34

Typically, an individual serving a “disciplinary probation” may be terminated from his or her position in accordance with the terms of his or her probationary status.

The lesson of the Johnston case: it is essential to determine if the individual is actually serving as a probationer at the time he or she is dismissed for unsatisfactory service as a probationer; probationary status may not be assumed.

In 1989, Triborough Bridge and Tunnel Authority [TBTA] police officer Edward P. Johnston settled disciplinary charges filed against him by agreeing to be placed “on probation for a period of one year.” A few months later Johnston was injured while on duty and did not return to work until October 1996.

In June 1997, following new allegations of misconduct, TBTA dismissed Johnston from his position without a pre-termination hearing. TBTA's justification for its action:

Johnston is not entitled to a pretermination hearing since the one-year probationary period agreed to in 1989 had not yet expired.

According to TBTA, Johnston's period of probation was tolled during his Johnston's extended absence from work. Essentially TBTA argued that as it had not “waived” any portion of Johnston's disciplinary probation, he was required to actually complete one year of such service.

This view is consistent with the Rules of the New York State Civil Service Commission, which applies to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, with respect to absences during a probationary period [4 NYCRR 4.5(g)].

The rules provide that an appointing authority may, in its discretion, consider certain absences “as time served in the probationary term.”

The rule further provides that “[a]ny such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term.” A number of local civil service commissions have adopted a similar rule.

Johnston protested his termination without notice and hearing but the New York City Civil Service Commission dismissed his appeal. The Commission said that it does not have “subject matter jurisdiction to consider the appeal” since Johnston's termination had been pursuant to the 1989 settlement agreement in which he waived the protections of Civil Service Law Section 75 mandating pretermination hearings for tenured employees.

The Appellate Division, First Department, disagreed with the Commission's analysis. It said the Commission apparently “assumed that the waiver contained in the 1989 agreement was still operative” -- it never actually made a finding to that Johnston was still a probationary employee.”

If, on the other hand, said the court, the probationary period had expired, the provisions of Section 75 of the Civil Service Law would control Johnston's dismissal.

Should this be the case, the lawfulness of Johnston's termination without notice and hearing would clearly be within the Commission's jurisdiction.

The Appellate Division remanded the case to the Commission to determine Johnston's probationary status and whether or not the “1989 waiver” remained effective at the time of Johnston's termination.

Discretion to discipline staff

Discretion to discipline staff
Matter of Gaul, Decisions of the Commissioner of Education #14432
Matter of Middleton, Decisions of the Commissioner of Education #14431

The Gaul and Middleton appeals both involve the challenges to the exercise of discretion involving the filing of disciplinary charges against an employee. In Gaul, the issue concerned the board's filing disciplinary charges; in Middleton, the issue involved a decision not to file such charges.

The Gaul case

Port Jefferson Union Free School District board member Kenneth Gaul, together with “presumably parents of students” in the district challenged the district's decision to file disciplinary charges pursuant to Section 3020-a of the Education Law against a school principal, Dr. Esther Fusco, and her subsequent reassignment pending resolution of the disciplinary action.

Also challenged was the abolishment of the position encumbered by the district's former director of special education, Carole Noren.

The district's superintendent, Dr. Edward J. Reilly, had recommended a reorganization plan that would involve the abolishment of Noren's position but before the board acted Noren was offered, and accepted, a retirement incentive.

Among the issues considered by the Commissioner was the question of Gaul's “standing” to appeal a personnel determination by a school board. The Commissioner observed:

1. An individual may not maintain an appeal pursuant to Section 310 of the Education Law unless he or she “has suffered personal damage or injury to his or her civil, personal or property rights.”

2. Status as a resident of a district or as a parent of a student in the district does not operate to “automatically confer ... the capacity to seek review of personnel actions by a board of education.”

Ruling that the “unsubstantiated assertion that their children have been negatively impacted by Fusco's removal is insufficient to confer standing” to challenge the board's decision, the Commissioner dismissed this aspect of the appeal.

The Commissioner also ruled that the assertion that expenditures to replace Fusco were “wasteful” in contrast to be “unlawful” did not establish “the direct personal harm” essential to conferring “standing” to appeal.

The Commissioner further found that Gaul failed to show that the board “engaged in a willful violation or neglect of duty” by its filing disciplinary charges against Fusco.

Fusco, the district conceded, had received both the Principal of the Year Award in New York State in 1997 and the National Distinguished Principal Award in 1998. However, it filed “49 specifications ranging from relatively minor offenses ... to the more serious” against her.

This, said the Commissioner, indicated that “from the breadth and length of the disciplinary charges, as well as the remoteness of some of the allegations, the [board] pursued Fusco's removal with considerable zeal” but there is insufficient evidence that “any board member willfully violated or neglected a legal duty in approving Fusco's reassignment.”

Dismissing the appeal, the Commissioner pointed out that Section 1709(33) of the Education Law grants a board of education broad authority to manage the educational affairs of the district. “Inherent in this authority” is the power to abolish administrative positions and alter an administrator's assignment.

As to Gaul's challenging the “retirement incentive” accepted by Noren, the Commissioner rejected his claim that the incentive was “an unconstitutional gift of public funds.”

This argument, said the Commissioner, is without merit, noting that in Antonpoulou v Beame, 32 NY2d 126, the Court of Appeals ruled that providing such a benefit, if statutory or contractual, is lawful. He said the retirement incentive offered Noren was authorized by Chapter 41 of the Laws of 1997.

The Middleton appeal

After Beatrice Hudgins Middleton's son was exonerated of charges that he brought a “Category I weapon” to his first grade class, Middleton asked the school district to file disciplinary charges against school officials whom she alleged had lied during the investigation of the incident or at the disciplinary hearing that followed.

The Commissioner, after dismissing Middleton's appeal for technical reasons, addressed the merits of her complaint -- the failure of the district to initiate the requested disciplinary action against its staff members.

Commenting that it is the board of education that has authority to take disciplinary action against a school district employee, the Commissioner said that “a board of education has broad discretion to determine whether disciplinary action against an employee is warranted.”

All that is required is that the board have “a reasonable basis” for its determination not to file disciplinary charges against the individual.

* These determinations were made by then Acting Commissioner Cate.