The United States Circuit Court of Appeals for the District of Columbia holds public policy compels the rejection of former President Trump's claim of immunity in a criminal case

On August 1, 2023, former President Donald J. Trump was charged in a four-count criminal Indictment stemming from his actions challenging the 2020 election results and interfering with the sequence of procedures set forth in the Constitution of the United States providing for the transfer of power from one President to the next.

The former President moved to dismiss the Indictment and a federal district court denied his motion. Former President Trump appealed the lower court's ruling.

The United States Court of Appeals for the District of Columbia Circuit affirmed the  federal district court's denial of the former President's motion to dismiss the Indictment.

In the words of the Circuit Court of Appeals, for the purpose of this criminal case  "former President Trump has become citizen Trump, with all of the defenses of any other criminal defendant. But any executive immunity that may have protected him while he served as President no longer protects him against this prosecution."

Click HERE to access the United States Court of Appeal for the District of Columbia Circuit's decision in United States of America v Donald J. Trump posted on the Internet.

Terminating a probationary employee without notice and hearing

Plaintiff, a correction officer serving as a probationary appointee, appealed Supreme Court's ruling denying his petition challenging his termination from his employment prior to the completion of his maximum period of probation. The Appellate Division affirmed the lower court's decision. 

Plaintiff had commenced this proceeding pursuant to CPLR Article 78 to review the appointing authority's decision to terminate Plaintiff's probationary employment. His petition, alleged, among other things, that the determination was arbitrary and capricious.

The Appellate Division, citing, Matter of Trager v Suffolk County, 185 AD3d 697, explained "An employee's probationary appointment may be terminated ... for any reason or no reason at all, so long as the termination was not in bad faith or for an improper or impermissible reason".* Further, the decision notes that "In demonstrating that administrative actions were made in bad faith ... the petitioner bears a heavy burden of proof, for which conclusory allegations and speculative assertions will not suffice".

Citing Matter of Trager v Suffolk County, 185 AD3d at 698, the decision notes that an appointing authority's discretion to terminate probationary employees is especially broad "in appointment of law enforcement officers, to whom high standards may be applied."

Noting that Plaintiff did not allege that his dismissal from his position was made in bad faith, the court said the record indicated that there was "a rational basis for the determination terminating the [Plaintiff's] probationary employment and that the [appointing authority's] determination was not arbitrary and capricious."

* In York v McGuire, 63 NY2d 760, the Court of Appeals set out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

Click HERE to access the Appellate Division's decision posted on the Internet.

 

Determining if a demand to arbitrate an alleged violation of a term or condition set out in a collective bargaining agreement is viable

Teamsters Local 445 [Union] filed a demand for arbitration of a grievance against the Village alleging that the Village breached the parties' collective bargaining agreement [CBA] by deducting a certain amount from each paycheck of an individual in the relevant collective bargaining unit for health insurance costs.

The Supreme Court granted the Village's petition to permanently stay arbitration on the ground that the claim sought to be arbitrated was barred by the four-month statute of limitations applicable to CPLR Article 78 proceedings. The Appellate Division held that the "principal issues raised on this appeal are (1) whether the underlying claim is in the nature seeking review of an administrative determination or in the nature of breach of contract, and (2) if the latter, whether the claim is predicated on a single breach or a series of breaches that occurred with each paycheck.

The court determined that the nature of the claim is breach of contract and that the claim is predicated on a series of independent alleged breaches. The Appellate Division opined that as "the statute of limitations began anew as to each breach," it found that the claim to be arbitrated was not wholly time-barred and modified the Supreme Court's order to "permanently stay so much of the grievance as was not time-barred and granting the Union's cross-motion to the extent of compelling arbitration of so much of the grievance as was not time-barred."

As to the issue concerning whether a grievance is arbitrable, the Appellate Division, explained that the court must follow a two-part test* in making that determination:  

1. The court considers "whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance". If no prohibition against arbitrating exists; then

2. The court examines the CBA "to determine if the parties have agreed to arbitrate the dispute at issue.

Finding no constitutional, statutory, or public policy provision prohibiting the arbitration of the dispute at issue in this matter, the Appellate Division said with respect to determining whether the parties agreed to arbitrate the dispute, "the merits of the grievance are not the courts' concern. Even an apparent weakness of the claimed grievance is not a factor in the court's threshold determination. It is the arbitrator who weighs the merits of the claim."

In making that determination, "A court ... should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA. If there is none, the issue, as a matter of law, is not arbitrable.

In the event the there is such a "reasonable relationship", the court should rule the matter arbitrable, and the arbitrator will then make "a more exacting interpretation of the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them".

The Appellate Division noted that "The plain terms of the CBA define a grievance to include a claimed violation of the CBA and provide that the Union may seek arbitration so long as it complied with the other steps of the grievance process". Such compliance was not in dispute in the instant appeal.

Here, however, the Village contended "that the matter is not arbitrable because the Union improperly amended the grievance in its demand for arbitration." The Appellate Division, however, said "the precise scope of the substantive provisions of the CBA, and whether the subject matter of the dispute fits within them," is for the arbitrator to determine, citing  Matter of Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d at 143. Accordingly, the Appellate Division held that Supreme Court properly concluded that the subject demand for arbitration should not be stayed on the ground that a valid agreement to arbitrate was not made.

* See Matter of City of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273.

Click HERE to access the Appellate Division's decision posted on the Internet.

New York State Comptroller Thomas P. DiNapoli reports that a former town clerk pled guilty to stealing almost $4,000 from the Town of Lincoln

On February 2, 2024, New York State Comptroller Thomas P. DiNapoli, Chenango County District Attorney Michael Ferrarese, and the New York State Police announced the plea and sentence of Amy Becker, former Clerk for the Town of Lincoln, for stealing nearly $4,000 from the Town. The plea was the result of a joint investigation between Comptroller DiNapoli’s Office, the Chenango County District Attorney’s Office, and the New York State Police. As part of the plea agreement she paid full restitution in the amount of $3,869.

“Ms. Becker abused her position by taking funds paid to her town and making them her own,” DiNapoli said. “Those in public service have a responsibility to act in taxpayers’ interests, not line their own pockets. I thank District Attorney Ferrarese and the New York State Police for their partnership in making sure she will be held accountable.”

New York State Police Acting Superintendent Steven G. James said, “Ms. Becker abused her position in a place of trust to concoct a devious scheme and steal funds from the town. The New York State Police will not tolerate those who misuse their position as a public servant to profit at the expense of taxpayers. I commend our State Police investigators for their outstanding work and thank the Comptroller’s Office and the Chenango County District Attorney’s Office for their partnership in solving this case.”

Becker, 54, pled guilty to petit larceny. She served as the town clerk of Lincoln from 2018 to 2022. During that time, she accepted payments for the town, including fees for marriage licenses, death certificates, and the dog pound, and was responsible for recording and depositing all funds.

During an audit of the town, DiNapoli’s office found a cash shortage. An ensuing investigation found that Becker failed to report $3,869 in cash deposits and, instead, embezzled the money for her personal use.

Becker pleaded guilty before Judge Stephanie Palmer in the Town of Lenox Court. She was ordered to, and paid, full restitution in the amount of $3,869 and received a one year conditional discharge.

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Since taking office in 2007, DiNapoli has committed to fighting public corruption and encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud involving taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint online at investigations@osc.ny.gov, or by mailing a complaint to: Office of the State Comptroller, Division of Investigations, 8th Floor, 110 State St., Albany, NY 12236.