Proving disciplinary charges

Proving disciplinary charges

Ferguson v Traficanti, 295 A.D.2d 786

Desiree Ferguson was found guilty of some of the thirty specifications of misconduct and incompetence filed against her. The hearing officer found Ferguson guilty of seventeen of these thirty specifications and recommended that she be dismissed from her position of Senior Office Assistant with the Schenectady City Court.

Among the specifications of misconduct and incompetence filed against her: excessive lateness, failure to carry out assigned duties properly, and actions in contradiction of established court procedure. The hearing officer's findings and recommendations were adopted by the appointing authority and Ferguson was dismissed from her position.

In sustaining the determination, the Appellate Division, Third Department noted that:

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 demonstrates some of the factors that courts weigh in determining whether there is substantial evidence to support the finding of the hearing officer.

The hearing officer found Ferguson guilty of seven of the 12 specifications concerning her alleged failure to perform assigned clerical tasks properly. The court said 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 Ferguson had typed the incorrect labels because the witness "recognized the font from [Ferguson's] typewriter was insufficient since testimony also established that there were several typewriters in that office using that particular font."

As the witness could not testify that she witnessed Ferguson preparing these folders and Ferguson 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 Ferguson guilty of six of thirteen specifications alleging that she improperly performing her duties by exceeding her authority or violating court policy. In this instance the court held that the record supported the hearing officer's findings, noting that Ferguson 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 Ferguson'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 Ferguson 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 Ferguson's time sheets or by testimony from her superior or co-workers.

The Appellate Division declined to review the penalty imposed, as the more appropriate course is to remit the matter to the appointing authority for its reconsideration.

The court also said that it noted that Ferguson was given numerous oral admonitions and counseling memoranda warning her of further disciplinary action, such did not constitute "punishment" such that the present disciplinary proceeding could be deemed duplicative.

Teacher the target of sexual harassment complaints

Teacher the target of sexual harassment complaints

Matter of Devany, Comm. of Education, Decision 14,747

Many public employers have adopted policies dealing with sexual harassment. The Devany case describes some administrative procedures that might be experienced in processing sexual harassment complaints under such an employer's policy. Here a parent challenged the content of classroom instruction by a teacher in accordance with administrative procedures established by the Massapequa Union Free School District Board of Education.

Eugene P. Devany alleging that his daughter Sara had suffered sexual harassment when the teacher encouraged to her students "to write and speak foul and vulgar terms and descriptions of illegal sexual activities" in the course of conducting a class in sex education.

School administrators investigated Devany's complaint, including interviewing the teacher, a teaching assistant who was present in the classroom when the discussion took place, various administrators and Devany. The superintendent concluded that the district's sexual harassment policy had not been violated. Devany appealed to the school board as provided by the policy.

After considering the results of the administrative investigation of Devany's allegations and "a thorough legal analysis of the district's sexual harassment policy and the applicable law," the school board concluded that the teacher's conduct did not constitute sexual harassment. In the words of the school board:

Although we disagree with the judgment exercised by the teacher - we find that no sexual harassment occurred - the acts in question, had an instructional purpose, were discussed in clinical terms, and this method of instruction was authorized by [the teacher's] supervisors.

The Board's decision also directed officials to "review the instructional techniques, and curriculum and make recommendations for such corrective measures as are necessary."

Devany appealed the Board's determination to the Commissioner of Education.[1]

The Commissioner dismissed Devany's appeal on technical grounds: Devany had neglected to "join a necessary party" -- the teacher herself. However, said the Commissioner, even if he had not dismissed Devany's appeal on procedural grounds, he would have dismissed it on the merits. Why? Because, said the Commissioner, subdivisions 13 and 33 of Section 1709 of the Education Law gives a board of education broad powers concerning the superintendence, management, and control of a school district.

Accordingly, the Commissioner said that he would not substitute his judgment for that of a board of education unless it is demonstrated that the board acted arbitrarily, capriciously, abused its discretion or failed to comply with applicable laws.

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[1] Devany had also filed two complaints directly with the State Education Department's Teacher Discipline Unit, presumably seeking to have the teacher's license to teach suspended. The first such complaint concerned the underlying classroom incident; the second complained about the district's handling of the sexual harassment investigation and requested an investigation of the principal and the assistant superintendent. The Commissioner declined to consolidate these two complaints with Delaney's appeal, commenting that "an appeal before the Commissioner is not the proper forum to seek the suspension of a teacher's teaching certificate."

Training accidents

Training accidents

Brady v City of New Rochelle, App. Div., 2nd Dept., 296 AD2d 365

A police officer is injured while participating in a training program. May he or she sue the employer for negligence? In Brady the Appellate Division said the injured officer could not sue the employer for negligence.

Matthew Brady, a New Rochelle police officer, sued the City for "common-law negligence" after he was injured in a motorcycle accident during a police motorcycle training course.

The Appellate Division, Second Department, affirmed a lower court ruling dismissing Brady's action on the grounds that "Brady was performing his official duties as a police officer at the time of the accident." In other words, participating in training activities is "on-the-job" performance of duties.

Citing the decisions in Melendez v City of New York, 271 AD2d 416, and Flynn v City of New York, 258 AD2d 129, the court ruled that Brady's common-law negligence cause of action was barred by General Obligations Law Section 11-106.

Another reason given by the Appellate Division for blocking Brady's law suit: his "common-law negligence cause of action is barred on the ground that he received salary and medical benefits pursuant to General Municipal Law Section 207-c" as a result of his being injured in the course of his employment.