Jurisdiction of village school crossing guards

Jurisdiction of village school crossing guards

Informal Opinion of the Attorney General 2013-3

The Attorney General’s Assistant Solicitor General in Charge of Opinions, Kathryn Sheingold, advised the Village of Alden’s village attorney, Chris G. Trapp, Esq., that, consistent with General Municipal Law §208-a, a village school crossing guard may control traffic at an intersection within the village that does not abut school property if his or her exercise of such traffic control is to aid in protecting school children going to and from school.

The opinion is posted on the Internet at:

http://www.ag.ny.gov/sites/default/files/opinion/2013-3_pw.pdf

Employee’s prior disciplinary record considered in recommending an appropriate penalty after being found guilty of certain disciplinary charges

Employee’s prior disciplinary record considered in recommending an appropriate penalty after being found guilty of certain disciplinary charges

OATH Index No. 559/13

An OATH Administrative Law Judge found a housekeeping aide guilty of [1] laying down on a clean stretcher in a patient area to make a phone call during work hours and [2] failing to complete his assigned cleaning duties.

However ALJ Faye Lewis dismissed charges that Aide abandoned his post, was discourteous, and did not comply with a directive to clean certain areas in a medical unit.

Taking into consideration employee’s prior disciplinary record, which included 30-day suspensions, ALJ Lewis recommended a 45-day suspension.

The case usually cited as authority for considering the employee's personnel record in recommending a disciplinary penalty is Bigelow v Trustees of the Village of Gouverneur, 63 NY2d 470. Further, the employee’s consent is not required in order for the hearing officer or arbitrator to consider the employee’s personnel record in determining an appropriate penalty. 

However, in the event the employee's personnel records will be considered in determining the disciplinary penalty, he or she must be advised of that fact and given an opportunity to explain or rebut anything in that record.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/13_Cases/13-559.pdf

Removal of a public officer from his or her position by operation of law

Removal of a public officer from his or her position by operation of law

Greene v McGuire, 683 F.2d 32

§30 of the Public Officers Law provides for the automatic removal of an individual from his or her public office under certain conditions.

A federal district court held that a police officer who was removed from his position following his being convicted of a felony in accordance with Public Officer Law §30.1(e) was entitled to an administrative hearing on the question of reinstatement following the reversal of the conviction

The 2nd Circuit Court of Appeals reversed, indicating that as the state law automatically results in dismissal upon conviction, refusal to provide an administrative hearing following the reversal of the former police officer’s conviction did not deprive the former employee of a property right or liberty interest protected by the 14th Amendment.

However, it should be noted that §30.1(e) provides in the event a public officer* is convicted of a “felony, or a crime involving a violation of his [or her] oath of office …. a non-elected official may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy.”

The statute further provides that “After receipt of such application, the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted.

“The record of the hearing shall include the final judgment of the court which reversed or vacated such conviction and may also include the entire employment history of the applicant and any other submissions which may form the basis of the grant or denial of reinstatement notwithstanding the reversal or vacating of such conviction.

“Notwithstanding any law to the contrary, after review of such record, the appointing authority may, in its discretion, reappoint such non-elected official to his former office, or a similar office if his former office is no longer available. In the event of such reinstatement, the appointing authority may, in its discretion, award salary or compensation in full or in part for the period from the date such office became vacant to the date of reinstatement or any part thereof;”

A similar principle** was applied in a case where although a principal was initially recommended for tenure, the new superintendent recommended his termination on the grounds that a change in leadership was required.

While there was still 120 days left to the principal’s probationary period, his contract of employment expired and he was terminated by the School Board.

It was held that the principal was not entitled to a termination hearing pursuant to §3020-a of the Education Law, nor did the earlier recommendation for tenure have any effect on the contract provision (See §1709, Education Law).

* A police officer is a public officer. Although all public officers are public employees, not all public employees are public officers.

** See Knight v. Wyandanch Union Free School District, affd. 56 NY2 628

An employee’s disability will not excuse his or her misconduct

An employee’s disability will not excuse his or her misconduct

2013 NY Slip Op 04703, Appellate Division, First Department

The employee [Employee] was served with disciplinary charges alleging misconduct. His defense: his conduct was involuntary because it was the result of illnesses, Tourette's Syndrome and an obsessive-compulsive disorder, from which he suffers, and thus does not constitute misconduct.

A Judicial Hearing Officer (JHO) found Employee guilty and that his misconduct was only partially attributable to these disorders. Based on the JHO’s findings, the appointing authority dismissed Employee from his position.

The Appellate Division, finding that “substantial evidence supports [the agency’s] determination that [Employee] engaged in the misconduct alleged, dismissed Employee’s appeal. The court said that Employee’s argument that his conduct “was involuntary because it was the result of illnesses …  and therefore does not constitute misconduct is unavailing.”

Noting that the JHO found that Employee's conduct was only partially attributable to the disorders he claimed to suffer, the Appellate Division said that “the law does not immunize disabled employees from discipline or discharge for incidents of misconduct in the workplace,” citing Hazen v Hill Bettz and Nash, 92 AD3d 162, leave to appeal denied, 19 NY3d 812.

As to the penalty imposed, dismissal from his position, the Appellate Division, citing Pell v Board of Education, 34 NY2d 222, held that under the circumstances, the penalty of termination is not "so disproportionate as to be shocking to one's sense of fairness."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04703.htm

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

A Reasonable Disciplinary Penalty Under the Circumstances - A 600+ page guide to penalties imposed on public employees in New York State found guilty of selected acts of misconduct. For more information, click onhttp://nypplarchives.blogspot.com/

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