Court vacates dismissal as too harsh a penalty after considering employee's work record
Currithers v Mazzullo, 258 AD2d 460
School bus driver Steadman Currithers pled guilty to driving while his ability was impaired. He was served with disciplinary charges of misconduct and incompetence based on this conviction. Found guilty, the penalty imposed was dismissal from his position as school bus driver. Currithers appealed and won an annulment of the penalty the district had imposed.
The Appellate Division ruled that although Currithers was guilty as charged, the penalty imposed offended the Pell standard [Pell v Board of Education, 34 NY2d 222].
The court said that while the finding that Currithers was guilty of misconduct is supported by substantial evidence, under all of the circumstances of this case, “including the fact that this incident was an isolated act in an otherwise unblemished record of 15 years employment, and in light of [Currithers] unblemished driving record on and off the job prior to this incident, the penalty of dismissal is shocking to one’s sense of fairness” [the Pell standard]. It remanded the matter to the district with instructions that it “impose a new penalty other than dismissal.”
NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED IN COMPOSING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS.
Oct 25, 2010
Vindicating an employee's right conferred by law may not be resolved by filing a grievance pursuant to a collective bargaining agreement
Vindicating an employee's right conferred by law may not be resolved by filing a grievance pursuant to a collective bargaining agreement
Marino v Hauppauge UFSD, 262 AD2d 321
If a public employee claims that some action by his or her employer violated his or her statutory rights, may the employer insist that the issue be resolved by the employee filing a grievance under a Taylor Law contract grievance procedure? No said the Appellate Division in the Marino case.
Frank Marino sued his employer, the Hauppauge Union Free School District, alleging that the district had violated his rights under Section 3013 of the Education Law by reducing his annual salary by $4,148.* The district persuaded a State Supreme Court judge to dismiss Marino’s complaint, contending that Marino complaint should be resolved under the grievance procedure set out in the Taylor Law agreement then in place.
The Appellate Division overturned the lower court’s dismissal of Marino’s Article 78 action. The Appellate Division noted that the collective bargaining agreement did provide a grievance procedure to resolve “any dispute between the parties concerning the interpretation of the terms and conditions of [the] agreement”. However, said the court, Marino had not raised any issue relating to the terms and conditions of his employment as set out in the agreement. What he was attempting to do was to “vindicate rights conferred upon him by Education Law Section 3013(1).”
The courts have consistently ruled that the statutory rights of teachers whose positions are abolished pursuant to either Sections 3013 or 2510 of the Education Law may not be changed by a collective bargaining agreement.
For example, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, 539 NY2d 83, the Appellate Division, citing Cheektowaga v Nyquist, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority for the purposes of layoff.
Considering a conflict between the CAB and the Civil Service Law, in Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 N.Y.3d 465, the Court of Appeals said that where “the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator.”
The same is true with respect to Taylor Law contract provisions that adversely impact upon layoff rights vested in employees in the classified service by Sections 80 or 80-a of the Civil Service Law [see Plattsburgh v Local 788, 108 AD2d 1045].
The Appellate Division, citing a number of cases including Matter of Board of Educ. of Barker Cent. School District, 209 AD2d 945, concluded that Marino “had every right to seek redress for the alleged violation of his statutory rights” by bringing a timely Article 78 action, “even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.”
Why? Because, the court explained, “the issues presented and the remedies sought in each forum were separate and distinct,” quoting from England v Commissioner of Education, 169 AD2d 868, among other cases, in support of its ruling.
* Section 3013 deals with layoff upon the abolishment of a position by a school district or a BOCES and provides, in pertinent part, for the reinstatement of a person who has been laid off to “an office or position similar to the one which such person filled without reduction in salary or increment....”
NYPPL
Marino v Hauppauge UFSD, 262 AD2d 321
If a public employee claims that some action by his or her employer violated his or her statutory rights, may the employer insist that the issue be resolved by the employee filing a grievance under a Taylor Law contract grievance procedure? No said the Appellate Division in the Marino case.
Frank Marino sued his employer, the Hauppauge Union Free School District, alleging that the district had violated his rights under Section 3013 of the Education Law by reducing his annual salary by $4,148.* The district persuaded a State Supreme Court judge to dismiss Marino’s complaint, contending that Marino complaint should be resolved under the grievance procedure set out in the Taylor Law agreement then in place.
The Appellate Division overturned the lower court’s dismissal of Marino’s Article 78 action. The Appellate Division noted that the collective bargaining agreement did provide a grievance procedure to resolve “any dispute between the parties concerning the interpretation of the terms and conditions of [the] agreement”. However, said the court, Marino had not raised any issue relating to the terms and conditions of his employment as set out in the agreement. What he was attempting to do was to “vindicate rights conferred upon him by Education Law Section 3013(1).”
The courts have consistently ruled that the statutory rights of teachers whose positions are abolished pursuant to either Sections 3013 or 2510 of the Education Law may not be changed by a collective bargaining agreement.
For example, in Szumigala v Hicksville Union Free School District, 148 AD2d 621, 539 NY2d 83, the Appellate Division, citing Cheektowaga v Nyquist, 38 NY2d 137, held that a seniority clause in a Taylor Law agreement violated Section 2510 of the Education Law when it permitted seniority in different tenure areas to be combined for the purposes of determining seniority for the purposes of layoff.
Considering a conflict between the CAB and the Civil Service Law, in Matter of City of Long Beach v Civil Serv. Empls. Assn., Inc.—Long Beach Unit, 8 N.Y.3d 465, the Court of Appeals said that where “the terms of the CBA that afford tenure rights to provisional employees after one year of service are contrary to statute and decisional law and therefore any relief pursuant to those terms may not be granted by an arbitrator.”
The same is true with respect to Taylor Law contract provisions that adversely impact upon layoff rights vested in employees in the classified service by Sections 80 or 80-a of the Civil Service Law [see Plattsburgh v Local 788, 108 AD2d 1045].
The Appellate Division, citing a number of cases including Matter of Board of Educ. of Barker Cent. School District, 209 AD2d 945, concluded that Marino “had every right to seek redress for the alleged violation of his statutory rights” by bringing a timely Article 78 action, “even after having begun a grievance procedure which related exclusively to an alleged violation of his contract.”
Why? Because, the court explained, “the issues presented and the remedies sought in each forum were separate and distinct,” quoting from England v Commissioner of Education, 169 AD2d 868, among other cases, in support of its ruling.
* Section 3013 deals with layoff upon the abolishment of a position by a school district or a BOCES and provides, in pertinent part, for the reinstatement of a person who has been laid off to “an office or position similar to the one which such person filled without reduction in salary or increment....”
NYPPL
Termination after failing the National Teacher’s Exam upheld
Termination after failing the National Teacher’s Exam upheld
Feldman, et. al., v Bd. of Ed., City of New York, 262 AD2d 276
Because they had not passed the National Teacher’s Examination, the New York City Board of Education terminated the teaching license it had issued to Sandra Feldman and a number of other teachers employed by the board. The teachers sued, contending that the board’s action in terminating their respective teaching licenses was arbitrary and capricious.
The Appellate Division noted that there were two defects in the action; one procedural and the other substantive.
As to the procedural defect, the court ruled that Feldman’s Article 78 action was untimely. The decision points out that Section 217 of the Civil Practice Law and Rules provides that “a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner”.
According to the ruling, a determination is considered final and binding for the purposes of Section 217 when it has an impact upon the petitioner and when he or she knows he or she is aggrieved by the administrative decision.
As to the substantive issue [e.g., the merits of the complaint], the court concluded that the board action was neither arbitrary nor capricious since the several teachers “admittedly failed to achieve a passing grade on the National Teacher’s Examination within five years of the issuance of their licenses” despite the requirement that they do so.
NYPPL
Feldman, et. al., v Bd. of Ed., City of New York, 262 AD2d 276
Because they had not passed the National Teacher’s Examination, the New York City Board of Education terminated the teaching license it had issued to Sandra Feldman and a number of other teachers employed by the board. The teachers sued, contending that the board’s action in terminating their respective teaching licenses was arbitrary and capricious.
The Appellate Division noted that there were two defects in the action; one procedural and the other substantive.
As to the procedural defect, the court ruled that Feldman’s Article 78 action was untimely. The decision points out that Section 217 of the Civil Practice Law and Rules provides that “a proceeding against a body or officer must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner”.
According to the ruling, a determination is considered final and binding for the purposes of Section 217 when it has an impact upon the petitioner and when he or she knows he or she is aggrieved by the administrative decision.
As to the substantive issue [e.g., the merits of the complaint], the court concluded that the board action was neither arbitrary nor capricious since the several teachers “admittedly failed to achieve a passing grade on the National Teacher’s Examination within five years of the issuance of their licenses” despite the requirement that they do so.
NYPPL
Oct 22, 2010
Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct
Employer not be liable for damages resulting from employee’s off duty misconduct absent notice of the employee's proclivity for such misconduct
Acosta-Rodriguez v City of New York, 2010 NY Slip Op 07470, Decided on October 21, 2010, Appellate Division, First Department
An employee of the New York City Board of Education [BOE] was alleged to have sexually abused two students. When the parents of the children sued, the School Board argued that its was not liable because the abuse by its employee “was not committed in furtherance of school business and was done for [the employee’s] personal reasons.”
The Appellate Division agreed, holding that the BOE cannot be held liable under the theory of respondeat superior.*
The parents also contended that the employee was negligently hired, supervised or retained by BOE. However, said the Appellate Division, the parents “failed to raise a factual issue as to whether, at the time of the employee's hiring, BOE was on notice of facts triggering a duty to inquire further, or to contradict BOE's claim that it conducted its standard pre-employment investigation of the employee.”
As to the parents’ evidence that the BOE was on notice, either actual or constructive, of the employee's propensity for sexual abuse of minors because he “bought pizza for the students and observed them at play,” the court held that such activities “does not constitute notice of the employee's proclivity for sexual abuse.”
The Appellate Division also commented that the incident had occurred off school grounds and that there was nothing in the record indicating that BOE released the students to the employee or even knew that the three were together.
Accordingly, the court concluded that “there are no triable issues as to whether [the students’] injuries were caused by a failure of adequate supervision or a disregard on premises that should have alerted [the BOE] to a hazardous situation.
* The common-law doctrine that holds that an employer is liable for the actions of an employee when the employee's actions are within the scope of the individual's duties.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07470.htm
NYPPL
Acosta-Rodriguez v City of New York, 2010 NY Slip Op 07470, Decided on October 21, 2010, Appellate Division, First Department
An employee of the New York City Board of Education [BOE] was alleged to have sexually abused two students. When the parents of the children sued, the School Board argued that its was not liable because the abuse by its employee “was not committed in furtherance of school business and was done for [the employee’s] personal reasons.”
The Appellate Division agreed, holding that the BOE cannot be held liable under the theory of respondeat superior.*
The parents also contended that the employee was negligently hired, supervised or retained by BOE. However, said the Appellate Division, the parents “failed to raise a factual issue as to whether, at the time of the employee's hiring, BOE was on notice of facts triggering a duty to inquire further, or to contradict BOE's claim that it conducted its standard pre-employment investigation of the employee.”
As to the parents’ evidence that the BOE was on notice, either actual or constructive, of the employee's propensity for sexual abuse of minors because he “bought pizza for the students and observed them at play,” the court held that such activities “does not constitute notice of the employee's proclivity for sexual abuse.”
The Appellate Division also commented that the incident had occurred off school grounds and that there was nothing in the record indicating that BOE released the students to the employee or even knew that the three were together.
Accordingly, the court concluded that “there are no triable issues as to whether [the students’] injuries were caused by a failure of adequate supervision or a disregard on premises that should have alerted [the BOE] to a hazardous situation.
* The common-law doctrine that holds that an employer is liable for the actions of an employee when the employee's actions are within the scope of the individual's duties.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07470.htm
NYPPL
Employment application fraud leads to disqualification for employment
Employment application fraud leads to disqualification for employment
Schindlar v Village of Lloyd Harbor, 261 AD2d 626
Providing false information in his application for appointment as a police officer resulted in Dennis Schindlar’s disqualification and removal from his position with the Village of Lloyd Harbor.
The Suffolk County Department of Civil Service, after holding a hearing, revoked the Schindlar’s certification and appointment as a police officer.
The department’s hearing officer determined that Schindlar had “perpetrated a fraud in claiming residency in the Incorporated Village of Lloyd Harbor.” Schindlar had presented evidence that he resided in Lloyd Harbor, including copies of his driver’s license and voter registration cards. There was also testimony by the owner of the property on which he allegedly resided.
Section 50.4(f) of the Civil Service Law provides for the disqualification of individuals “who has intentionally made a false statement of any material fact in his [or her] application.” A pre-disqualification hearing may be provided where appropriate, it but is not mandated by Section 50.4.
The key due process element in Section 50.4 provides that “no person shall be disqualified ... unless he [or she] has been given a written statement of the reasons ... and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”
The Appellate Division noted that notwithstanding such evidence submitted by Schindlar, the hearing officer “credited the persuasive documentary evidence to the contrary.” The court said that it was well established that a reviewing court may not weigh evidence or reject the choice made by the hearing officer, especially where there is conflicting evidence and room for choice exists.
Finding that there was substantial evidence in the record to sustain a finding that Schindlar did not in fact reside in Lloyd Harbor during the period in question, the court affirmed Schindlar’s disqualification by the department.
NYPPL
Schindlar v Village of Lloyd Harbor, 261 AD2d 626
Providing false information in his application for appointment as a police officer resulted in Dennis Schindlar’s disqualification and removal from his position with the Village of Lloyd Harbor.
The Suffolk County Department of Civil Service, after holding a hearing, revoked the Schindlar’s certification and appointment as a police officer.
The department’s hearing officer determined that Schindlar had “perpetrated a fraud in claiming residency in the Incorporated Village of Lloyd Harbor.” Schindlar had presented evidence that he resided in Lloyd Harbor, including copies of his driver’s license and voter registration cards. There was also testimony by the owner of the property on which he allegedly resided.
Section 50.4(f) of the Civil Service Law provides for the disqualification of individuals “who has intentionally made a false statement of any material fact in his [or her] application.” A pre-disqualification hearing may be provided where appropriate, it but is not mandated by Section 50.4.
The key due process element in Section 50.4 provides that “no person shall be disqualified ... unless he [or she] has been given a written statement of the reasons ... and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.”
The Appellate Division noted that notwithstanding such evidence submitted by Schindlar, the hearing officer “credited the persuasive documentary evidence to the contrary.” The court said that it was well established that a reviewing court may not weigh evidence or reject the choice made by the hearing officer, especially where there is conflicting evidence and room for choice exists.
Finding that there was substantial evidence in the record to sustain a finding that Schindlar did not in fact reside in Lloyd Harbor during the period in question, the court affirmed Schindlar’s disqualification by the department.
NYPPL
Administrator' terminated after being found guilty of ignoring the Civil Service Law with respect to the appointment of personnel
Administrator' terminated after being found guilty of ignoring the Civil Service Law with respect to the promotion of personnel
Gillen v Smithtown Library, 254 AD2d 486, Affirmed, 94 NY2d 776
An administrator who ignores the mandates of the Civil Service Law when it comes to promoting staff members places himself or herself in harms way, as the Gillen case demonstrates.
Thomas G. Gillen, director of the Smithtown Library, was terminated from his position by the Smithtown Library Board of Trustees after being found guilty of illegally promoting employees in contravention of the Civil Service Law.
The Appellate Division rejected his appeal seeking to overturn the disciplinary action taken against him. As to the penalty of termination, the court said that when considered in light of all of the circumstances of this case, dismissal “was not so disproportionate to the offense as to be shocking to one’s sense of fairness,” citing the Court of Appeals ruling in Pell v Bd. of Education, 34 NY2d 222.
The ruling also noted that “a high degree of deference is to be accorded to an agency’s determination of the appropriate penalty to be imposed, citing Washington v Dolce, 208 AD2d 937.
In affirming the Appellate Division’s decision, the Court of Appeals said:
"Given [Gillen's] repeated violation of the Civil Service Law, it cannot be said that the penalty imposed is 'so disproportionate to the offense ... as to be shocking to one's sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222)....'
"That the Appellate Division in remanded the matter for the imposition of a new penalty after dismissing four of the charges does not change our decision. A reviewing court generally 'will not presume to determine the precise sanction to be imposed' (Harris v Mechanicville Cent. School Dist., 45 NY2d 279, 285).
"Thus, where, as here, several charges have been dismissed on appeal, an appellate court will often remit the matter for an appropriate penalty (id.; see also, Matter of Ahsaf v Nyquist, 37 NY2d 182, 186). Our standard of review remains the same based on the charges sustained, not on those dismissed."
NYPPL
Gillen v Smithtown Library, 254 AD2d 486, Affirmed, 94 NY2d 776
An administrator who ignores the mandates of the Civil Service Law when it comes to promoting staff members places himself or herself in harms way, as the Gillen case demonstrates.
Thomas G. Gillen, director of the Smithtown Library, was terminated from his position by the Smithtown Library Board of Trustees after being found guilty of illegally promoting employees in contravention of the Civil Service Law.
The Appellate Division rejected his appeal seeking to overturn the disciplinary action taken against him. As to the penalty of termination, the court said that when considered in light of all of the circumstances of this case, dismissal “was not so disproportionate to the offense as to be shocking to one’s sense of fairness,” citing the Court of Appeals ruling in Pell v Bd. of Education, 34 NY2d 222.
The ruling also noted that “a high degree of deference is to be accorded to an agency’s determination of the appropriate penalty to be imposed, citing Washington v Dolce, 208 AD2d 937.
In affirming the Appellate Division’s decision, the Court of Appeals said:
"Given [Gillen's] repeated violation of the Civil Service Law, it cannot be said that the penalty imposed is 'so disproportionate to the offense ... as to be shocking to one's sense of fairness (Matter of Pell v Board of Educ., 34 NY2d 222)....'
"That the Appellate Division in remanded the matter for the imposition of a new penalty after dismissing four of the charges does not change our decision. A reviewing court generally 'will not presume to determine the precise sanction to be imposed' (Harris v Mechanicville Cent. School Dist., 45 NY2d 279, 285).
"Thus, where, as here, several charges have been dismissed on appeal, an appellate court will often remit the matter for an appropriate penalty (id.; see also, Matter of Ahsaf v Nyquist, 37 NY2d 182, 186). Our standard of review remains the same based on the charges sustained, not on those dismissed."
NYPPL
Recovering missing public funds
Recovering missing public funds
Utica Mutual Insurance Co., as the Subrogee of the Town of Sand Lake v. Laura Avery, 261 AD2d 802, motion for leave to appeal denied, 93 NY2d 818
From time to time, a public employee resigns from his or her position after some money is found to be missing. The Utica Mutual decision provides some insights as to what might follow such an event.
A State audit had revealed discrepancies in the financial records of the Town of Sand Lake’s Justice Court, including missing funds in excess of $3,000. Town officials were sufficiently convinced that the clerk of its justice court, Laura Avery, was responsible for the loss that it demanded, and received, her resignation. It later was able to ascertain the precise amount that was missing -- $3,648 -- and filed a claim with its insurance company, Utica Mutual, for the loss. Utica Mutual paid the town $3,648.
Utica, as the town’s subrogee [standing in the place of], then sued Avery to recover the money it paid to the town. Instead of filing an answer, Avery moved to dismiss Utica’s action on the ground it was untimely. A State Supreme Court judge agreed and applying the six-year Statute of Limitations (CPLR 213 (a),[1]), dismissed Utica Mutual’s claim as time barred.
Utica Mutual appealed and lost. The Appellate Division said that “the sole issue on this appeal is whether Supreme Court correctly determined the date on which plaintiff’s cause of action accrued.” Utica had argued that the limitations period did not begin to run until the date on which Sand Lake received the Department of Audit and Control’s official audit since prior to that date the Town’s liability for the missing funds was not fixed.
Not so, said the Appellate Division, affirming the lower court’s ruling. It said that Utica’s cause of action accrued when all events essential to the claim were present so that Utica would be entitled to judicial relief. Presumably Utica would have won its lawsuit against Avery to recover the money it had paid to Sand Lake had it filed a timely action.
The Appellate Division suggested that even a shorter statute of limitations might apply is such situations, commenting that “arguably, the mishandling of the funds in question fits the definition of conversion” [stealing] ... for which the shorter three-year Statute of Limitations of CPLR 214 (3) would apply.” However, both parties adopt the position that, in the absence of a specific Statute of Limitations for an action to recover embezzled funds, the applicable limitations period is six years pursuant to CPLR 213 (1).
NYPPL
Utica Mutual Insurance Co., as the Subrogee of the Town of Sand Lake v. Laura Avery, 261 AD2d 802, motion for leave to appeal denied, 93 NY2d 818
From time to time, a public employee resigns from his or her position after some money is found to be missing. The Utica Mutual decision provides some insights as to what might follow such an event.
A State audit had revealed discrepancies in the financial records of the Town of Sand Lake’s Justice Court, including missing funds in excess of $3,000. Town officials were sufficiently convinced that the clerk of its justice court, Laura Avery, was responsible for the loss that it demanded, and received, her resignation. It later was able to ascertain the precise amount that was missing -- $3,648 -- and filed a claim with its insurance company, Utica Mutual, for the loss. Utica Mutual paid the town $3,648.
Utica, as the town’s subrogee [standing in the place of], then sued Avery to recover the money it paid to the town. Instead of filing an answer, Avery moved to dismiss Utica’s action on the ground it was untimely. A State Supreme Court judge agreed and applying the six-year Statute of Limitations (CPLR 213 (a),[1]), dismissed Utica Mutual’s claim as time barred.
Utica Mutual appealed and lost. The Appellate Division said that “the sole issue on this appeal is whether Supreme Court correctly determined the date on which plaintiff’s cause of action accrued.” Utica had argued that the limitations period did not begin to run until the date on which Sand Lake received the Department of Audit and Control’s official audit since prior to that date the Town’s liability for the missing funds was not fixed.
Not so, said the Appellate Division, affirming the lower court’s ruling. It said that Utica’s cause of action accrued when all events essential to the claim were present so that Utica would be entitled to judicial relief. Presumably Utica would have won its lawsuit against Avery to recover the money it had paid to Sand Lake had it filed a timely action.
The Appellate Division suggested that even a shorter statute of limitations might apply is such situations, commenting that “arguably, the mishandling of the funds in question fits the definition of conversion” [stealing] ... for which the shorter three-year Statute of Limitations of CPLR 214 (3) would apply.” However, both parties adopt the position that, in the absence of a specific Statute of Limitations for an action to recover embezzled funds, the applicable limitations period is six years pursuant to CPLR 213 (1).
NYPPL
Disciplining an employee for off-duty misconduct
Disciplining an employee for off-duty misconduct
Anderson v Safir, App. Div., 260 AD2d 179
The Commissioner of Police found that Michael Anderson and some other New York City police officers were guilty of off-duty misconduct when they “wrongfully placed civilians in fear of imminent physical injury by displaying their guns and using racial epithets.”
The Appellate Division sustained the Commissioner’s dismissing the officers, commenting that the finding of their guilt was supported by substantial evidence, including, in particular, that the officers car pool together and that one of them owned the car described with specificity to the 911 operator at the time of the incident.
Finding that there was no basis to disturb Commissioner’s findings regarding credibility concerning the complainants’ identification testimony, the court confirmed the penalty imposed -- termination.
NYPPL
Anderson v Safir, App. Div., 260 AD2d 179
The Commissioner of Police found that Michael Anderson and some other New York City police officers were guilty of off-duty misconduct when they “wrongfully placed civilians in fear of imminent physical injury by displaying their guns and using racial epithets.”
The Appellate Division sustained the Commissioner’s dismissing the officers, commenting that the finding of their guilt was supported by substantial evidence, including, in particular, that the officers car pool together and that one of them owned the car described with specificity to the 911 operator at the time of the incident.
Finding that there was no basis to disturb Commissioner’s findings regarding credibility concerning the complainants’ identification testimony, the court confirmed the penalty imposed -- termination.
NYPPL
Failing to participate in a counseling program results in disciplinary action
Failing to participate in a counseling program results in disciplinary action
Siciliano v Safir, 259 AD2d 366
New York City police officer Matthew Siciliano was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.
Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.
The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”
The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving Department’s requirements for order, authority and discipline. It ruled that the Department’s determination to dismiss Siciliano is entitled to “great leeway.”
Commenting that the penalty imposed did not shock its sense of fairness, the Appellate Division dismissed Siciliano’s appeal.
NYPPL
Siciliano v Safir, 259 AD2d 366
New York City police officer Matthew Siciliano was dismissed from his position after he refused to enter the department’s counseling program. Siciliano had been given at least four direct orders to do so within six months.
Siciliano claimed that his refusal to participate in the program (1) “was based upon his good faith reliance on his private psychiatrist’s advice that such would be harmful to his mental health,” and (2) that the Department had never explicitly warned him that he faced termination if he continued to disobey such orders.
The hearing officer concluded that Siciliano’s “proof concerning his precarious mental condition” tended to support rather than undermine his unfitness to serve. Further, the hearing officer noted, Siciliano was suspended after each time he disobeyed the order to participate in counseling, and “that should have made it clear to petitioner that continued disobedience would not be tolerated indefinitely.”
The Appellate Division said that Siciliano was found guilty of charges that “are serious, involving Department’s requirements for order, authority and discipline. It ruled that the Department’s determination to dismiss Siciliano is entitled to “great leeway.”
Commenting that the penalty imposed did not shock its sense of fairness, the Appellate Division dismissed Siciliano’s appeal.
NYPPL
Terminating an educator during his or her probationary period
Terminating an educator during his or her probationary period
Green v Bd. of Ed., 262 AD2d 411
The Green decision succinctly sets out the basic guidelines used by courts in determining if an educator was lawfully terminated if he or she was dismissed during, or at the end of, his or her probationary period without being given a statement of the reasons for the termination or an administrative hearing.
Verna Green, a New York City School District probationary teacher, was dismissed by the Board of Education during probation.
The Appellate Division, affirming a lower court’s dismissal of Green’s Article 78 action seeking reinstatement, said:
1. A probationary employee may be terminated without a statement of any reasons for the termination or per-termination hearing provided the termination (1) was not made in bad faith, (2) did not constitute a violation of statutory or decisional law, or (3) was not based on any unconstitutional or illegal reasons;
2. The former probationary employee has the burden of establishing that his or her termination was made in bad faith or for illegal reasons;
3. The former probationer’s conclusory allegations that the employer acted in bad faith do not meet this burden or warrant a hearing.
In another probationary termination case, Williams v Franklin Square Union Free School District, 261 A.D.2d 628, the Appellate Division dismissed an Article 78 action brought by Jeanne M. Williams. Williams had asked the court to order the district to “restore [her] to her position as an elementary [school] teacher.”
The court dismissed her petition, stating that there was no evidence in the record that the district’s denying Williams tenure was for a legally impermissible reason. In addition, the Appellate Division held that “there is no evidence that [Williams] acquired tenure by estoppel.”
NYPPL
Green v Bd. of Ed., 262 AD2d 411
The Green decision succinctly sets out the basic guidelines used by courts in determining if an educator was lawfully terminated if he or she was dismissed during, or at the end of, his or her probationary period without being given a statement of the reasons for the termination or an administrative hearing.
Verna Green, a New York City School District probationary teacher, was dismissed by the Board of Education during probation.
The Appellate Division, affirming a lower court’s dismissal of Green’s Article 78 action seeking reinstatement, said:
1. A probationary employee may be terminated without a statement of any reasons for the termination or per-termination hearing provided the termination (1) was not made in bad faith, (2) did not constitute a violation of statutory or decisional law, or (3) was not based on any unconstitutional or illegal reasons;
2. The former probationary employee has the burden of establishing that his or her termination was made in bad faith or for illegal reasons;
3. The former probationer’s conclusory allegations that the employer acted in bad faith do not meet this burden or warrant a hearing.
In another probationary termination case, Williams v Franklin Square Union Free School District, 261 A.D.2d 628, the Appellate Division dismissed an Article 78 action brought by Jeanne M. Williams. Williams had asked the court to order the district to “restore [her] to her position as an elementary [school] teacher.”
The court dismissed her petition, stating that there was no evidence in the record that the district’s denying Williams tenure was for a legally impermissible reason. In addition, the Appellate Division held that “there is no evidence that [Williams] acquired tenure by estoppel.”
NYPPL
Oct 21, 2010
Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun
Employee served with disciplinary charges alleging horseplay involving threats with an “imitation” handgun
Materials For the Arts (MFTA) is a program within the New York City Department of Cultural Affairs that collects donated materials and makes them available to not-for-profit arts groups.
Jesse Charland managed a warehouse where items donated to MFTA, including theatre props, are inventoried and stored.
Charland was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he had pointed a replica of a handgun at a supervisor while making threatening comments about “going postal” and needing only “one bullet.”
OATH Administrative Law Judge Kevin Casey credited the supervisor's testimony that the gun looked real and that she felt threatened.
As for Charland's claim that he was only joking, even Charland's witness acknowledged that if one was unfamiliar with Charland's sarcastic sense of humor, “you would take” it as a threat.
ALJ Casey also found that Charland disobeyed orders and was discourteous. The penalty recommended by the ALJ: termination.
Other disciplinary actions taken against public employees involved in “practical jokes” or “horseplay” include:
1. The Corning City School District charging a teacher with using physical force against a student -- pinching the student with a pair of pliers. Disciplinary Hearing Officer James R. Markowitz did not accept the teacher's efforts to excuse the episode as merely classroom "horseplay" and suspended the teacher for two weeks without pay. [NYS Department of Education Disciplinary File 3310].
2. Disciplinary action taken against a supervisor who engaged in a number of off-duty practical jokes resulted the supervisor’s demotion and being placed on a disciplinary probation for six-months [Sguanci v Commissioner of Public Works, Broome County, 158 AD2d 788].
3. A teacher being suspended without pay for one-year after playing practical joke on a supervisor using a fake spider. [Decisions of the Commissioner of Education, 10842].
The decision, Dept. of Cultural Affairs v Charland, OATH #1766/10, is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-1766.pdf
NYPPL
Materials For the Arts (MFTA) is a program within the New York City Department of Cultural Affairs that collects donated materials and makes them available to not-for-profit arts groups.
Jesse Charland managed a warehouse where items donated to MFTA, including theatre props, are inventoried and stored.
Charland was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging that he had pointed a replica of a handgun at a supervisor while making threatening comments about “going postal” and needing only “one bullet.”
OATH Administrative Law Judge Kevin Casey credited the supervisor's testimony that the gun looked real and that she felt threatened.
As for Charland's claim that he was only joking, even Charland's witness acknowledged that if one was unfamiliar with Charland's sarcastic sense of humor, “you would take” it as a threat.
ALJ Casey also found that Charland disobeyed orders and was discourteous. The penalty recommended by the ALJ: termination.
Other disciplinary actions taken against public employees involved in “practical jokes” or “horseplay” include:
1. The Corning City School District charging a teacher with using physical force against a student -- pinching the student with a pair of pliers. Disciplinary Hearing Officer James R. Markowitz did not accept the teacher's efforts to excuse the episode as merely classroom "horseplay" and suspended the teacher for two weeks without pay. [NYS Department of Education Disciplinary File 3310].
2. Disciplinary action taken against a supervisor who engaged in a number of off-duty practical jokes resulted the supervisor’s demotion and being placed on a disciplinary probation for six-months [Sguanci v Commissioner of Public Works, Broome County, 158 AD2d 788].
3. A teacher being suspended without pay for one-year after playing practical joke on a supervisor using a fake spider. [Decisions of the Commissioner of Education, 10842].
The decision, Dept. of Cultural Affairs v Charland, OATH #1766/10, is posted on the Internet at: http://archive.citylaw.org/oath/10_Cases/10-1766.pdf
NYPPL
Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law
Disciplinary arbitration award is not reviewable by PERB even if alleged to constitute an improper practice within the meaning of the Taylor Law
Toshunbe and Buffalo Board of Education, 32 PERB 3026
Doris Toshunbe was served with disciplinary charges alleging 21 counts of incompetence, 12 counts of insubordination and 11 counts of misconduct. The arbitrator, “apparently ... based on the disciplinary charges before him ... found that Toshunbe was ‘stubborn, abstinent [sic] and lack [sic] respect for authority.’” He ordered that Toshunbe be suspended for two weeks without pay, which the district could deem “a progressive disciplinary action.”
Toshunbe challenged the arbitrator’s decision by filed an improper practice charge with PERB, alleging “improper motivation” by the district. After discussing a number of the procedural issues concerning timeliness, PERB rejected her petition on the basis of “lack of jurisdiction.”
PERB said that “review of an arbitrator’s award is not available in an improper practice proceeding against an employer ... review of that award is available under Civil Practice Law and Rules [CPLR] Article 75.”
Explaining that “to avoid our becoming a substitute for or an alternative to the statutory review procedures, a CPLR proceeding should be the preferred mechanism for the review, modification or vacatur of disciplinary arbitration awards, absent extraordinary circumstances,” PERB sustained the Director of Public Employment Practices and Representation’s determination.
.
Toshunbe and Buffalo Board of Education, 32 PERB 3026
Doris Toshunbe was served with disciplinary charges alleging 21 counts of incompetence, 12 counts of insubordination and 11 counts of misconduct. The arbitrator, “apparently ... based on the disciplinary charges before him ... found that Toshunbe was ‘stubborn, abstinent [sic] and lack [sic] respect for authority.’” He ordered that Toshunbe be suspended for two weeks without pay, which the district could deem “a progressive disciplinary action.”
Toshunbe challenged the arbitrator’s decision by filed an improper practice charge with PERB, alleging “improper motivation” by the district. After discussing a number of the procedural issues concerning timeliness, PERB rejected her petition on the basis of “lack of jurisdiction.”
PERB said that “review of an arbitrator’s award is not available in an improper practice proceeding against an employer ... review of that award is available under Civil Practice Law and Rules [CPLR] Article 75.”
Explaining that “to avoid our becoming a substitute for or an alternative to the statutory review procedures, a CPLR proceeding should be the preferred mechanism for the review, modification or vacatur of disciplinary arbitration awards, absent extraordinary circumstances,” PERB sustained the Director of Public Employment Practices and Representation’s determination.
.
Selection of arbitrators
Selection of arbitrators
Suffolk Co. PBA v Suffolk, Sup. Ct., Suffolk Co., [Not selected for publication in the Official Reports]
May a legislative body limit the parameters used to select arbitrators in connection with collective bargaining, impasse resolution and contract administration?
Yes, if the reasons are legitimate and the action is consistent with the relevant collective bargaining agreement, the Supreme Court of Suffolk County ruled. Suffolk County PBA sought court review of Suffolk County’s Resolution No. 377-1998, in which the county legislature set out a policy “for the selection of arbitrators in all areas of collective bargaining.”
The reason given for the resolution: The county legislature said that the county has been adversely affected from a fiscal standpoint by the selection of arbitrators for the handling of binding arbitration matters, for collective bargaining agreements voluntarily submitted to arbitration, and for the resolution of labor disputes because of a predilection towards choosing either the same arbitrator or an arbitrator who has used arbitration decisions from an adjacent County rendered by him or her as a ping-pong to ratchet up labor benefits in Suffolk County.
The resolution stated that the county would not consent to use arbitrators who had been involved in any proceeding in which Nassau County was a party during the prior three years.
The Taylor Law contract between the Suffolk County PBA and the county provided that the American Arbitration Association (AAA) would appoint an arbitrator to conduct hearings pursuant to AAA’s voluntary rules in disciplinary proceedings and grievance proceedings.
These rules provided that in the event a party does not return the list of arbitrators sent to it by AAA, all persons are deemed acceptable to act as arbitrators. The rules further provide that if an appointment cannot be made from the submitted lists, the administrator of the AAA may appoint “other members of the panel without submission of any additional list.”
According to the decision, if the county is unable to select any arbitrator as a result of Resolution 377-1998, the AAA may appoint arbitrators without the consent of the county under the terms of the Taylor Law agreement.
PBA sued, claiming that the resolution constituted a unilateral modification of the grievance procedures for both contract violations and employee discipline in violation of the Taylor Law. Supreme Court Justice Cannavo noted, “once the parties have reached an agreement and entered into a collective bargaining agreement, the public employer cannot unilaterally change a term or condition of the contract, citing Roma v. Ruffo, 92 NY2d 489.
However, the court said that the resolution did not change any of the express provisions of the contract by limiting the selection of an arbitrator. According to the ruling, “the PBA and the County bargained and reached an agreement whereby the County was given the unfettered ability to reject arbitrators for any or no reason.”
This, said Justice Cannavo, meant that the county’s ability to reject an arbitrator was not affected by the adoption of Resolution 377-1998 insofar as it limits the selection of arbitrators. Therefore, the resolution did not constitute a unilateral change in the terms of the contract.
The court dismissed the PBA’s petition. It found that the underlying purpose of the resolution “is to control the County’s selection of arbitrators to prevent the ‘ratcheting’ up of salaries in those situations where the County has any discretion concerning the choice of arbitrators, and this bears on a legitimate concern of government.”
NYPPL
Suffolk Co. PBA v Suffolk, Sup. Ct., Suffolk Co., [Not selected for publication in the Official Reports]
May a legislative body limit the parameters used to select arbitrators in connection with collective bargaining, impasse resolution and contract administration?
Yes, if the reasons are legitimate and the action is consistent with the relevant collective bargaining agreement, the Supreme Court of Suffolk County ruled. Suffolk County PBA sought court review of Suffolk County’s Resolution No. 377-1998, in which the county legislature set out a policy “for the selection of arbitrators in all areas of collective bargaining.”
The reason given for the resolution: The county legislature said that the county has been adversely affected from a fiscal standpoint by the selection of arbitrators for the handling of binding arbitration matters, for collective bargaining agreements voluntarily submitted to arbitration, and for the resolution of labor disputes because of a predilection towards choosing either the same arbitrator or an arbitrator who has used arbitration decisions from an adjacent County rendered by him or her as a ping-pong to ratchet up labor benefits in Suffolk County.
The resolution stated that the county would not consent to use arbitrators who had been involved in any proceeding in which Nassau County was a party during the prior three years.
The Taylor Law contract between the Suffolk County PBA and the county provided that the American Arbitration Association (AAA) would appoint an arbitrator to conduct hearings pursuant to AAA’s voluntary rules in disciplinary proceedings and grievance proceedings.
These rules provided that in the event a party does not return the list of arbitrators sent to it by AAA, all persons are deemed acceptable to act as arbitrators. The rules further provide that if an appointment cannot be made from the submitted lists, the administrator of the AAA may appoint “other members of the panel without submission of any additional list.”
According to the decision, if the county is unable to select any arbitrator as a result of Resolution 377-1998, the AAA may appoint arbitrators without the consent of the county under the terms of the Taylor Law agreement.
PBA sued, claiming that the resolution constituted a unilateral modification of the grievance procedures for both contract violations and employee discipline in violation of the Taylor Law. Supreme Court Justice Cannavo noted, “once the parties have reached an agreement and entered into a collective bargaining agreement, the public employer cannot unilaterally change a term or condition of the contract, citing Roma v. Ruffo, 92 NY2d 489.
However, the court said that the resolution did not change any of the express provisions of the contract by limiting the selection of an arbitrator. According to the ruling, “the PBA and the County bargained and reached an agreement whereby the County was given the unfettered ability to reject arbitrators for any or no reason.”
This, said Justice Cannavo, meant that the county’s ability to reject an arbitrator was not affected by the adoption of Resolution 377-1998 insofar as it limits the selection of arbitrators. Therefore, the resolution did not constitute a unilateral change in the terms of the contract.
The court dismissed the PBA’s petition. It found that the underlying purpose of the resolution “is to control the County’s selection of arbitrators to prevent the ‘ratcheting’ up of salaries in those situations where the County has any discretion concerning the choice of arbitrators, and this bears on a legitimate concern of government.”
NYPPL
Recalling firefighters on General Municipal Law Section 207-a disability leave to report for light duty
Recalling firefighters on General Municipal Law Section 207-a disability leave to report for light duty
Cohoes v Local 2562, IAFF, Court of Appeals, 94 NY2d 686
Barnes v Council 82 [Monroe], Court of Appeals, 94 NY2d 719
What is the proper procedure for a municipal employer to a call disabled firefighter or police officer back to work for a light duty assignment? The Cohoes and Monroe cases offer some of the clearest judicial views on the administrative processing of GML Section 207-a/207-c matters involving light duty.
The Cohoes case
In this appeal, the Appellate Division considered the authority of a municipality to direct a firefighter receiving Section 207-a benefits to report for light-duty assignments.
Disagreeing with some of the rulings made by a state Supreme Court justice, the Appellate Division set out a number of guidelines for recalling an individual to perform light-duty. The Court of Appeals affirmed the Appellate Division’s ruling.
The decisions offer guidance on suspension of General Municipal Law Section 207-a benefits should the individual fail to report for duty, and explains when due process is required. The court set out the following guidelines:
1. The municipality must have the firefighter examined by the municipality’s physician to determine the individual’s fitness.
2. If the report indicates that the firefighter is fit to return to light-duty, he or she may be directed to report for appropriate assignment. Unless a Taylor Law agreement requires some administrative hearing, administrative due process does not require that the municipality hold a hearing prior to its issuing its return to work order.
3. If the firefighter contests the municipality’s directive to report for light-duty, he or she must submit documentation regarding his or her alleged medical inability to perform light-duty tasks.
4. If such documentation is submitted, the municipality is required to conduct an “evidentiary hearing” before it may take any action to modify the Section 207-a benefits being provided to the firefighter.
5. If the firefighter fails to submit medical evidence that he or she is unable to perform light-duty, he or she is entitled to a hearing before a final termination of Section 207-a benefits is imposed. However, the municipality is authorized to immediately withhold payroll checks because the firefighter failed to report to work as he or she did not provide the necessary “contrary medical documentation” required.
The Appellate Division also said that a disabled firefighter who objects to his or her recall for light-duty and submits the required medical documentation may not be required to charge his or her continued absence to accrued leave credits pending a final determination of their case.
Significantly, the court said the rights of individuals who provided “contrary medical documentation” are different from those of individuals who did not submit such documentation.
For instance, individuals who fail to submit such documentation may have their Section 207-a benefits discontinued immediately and must charge their continued absence to their leave credits, it any, if they wish to remain on the payroll.
But the municipality may not require the individuals who provided the required medical documentation to charge their absence to their leave credits in order to remain on the payroll, the court said. It ruled that such action would be improper because the municipality controls the time frame to be followed in completing the required administrative process.
Another issue involved the union’s demand that recall directives be submitted to arbitration. The Appellate Division observed that Section 207-a “does not dictate the procedures to be followed when a firefighter requests a due process hearing to challenge a municipality’s medical opinion.”
While there is no public policy impediment to the arbitration of light-duty disputes where the parties have so agreed, it is not available in instances where there is no such agreement between the parties in place, said the court.
The decision notes that the Taylor Law contract between the parties in the Cohoes case did not specifically provide for the arbitration of any challenge to the City’s directing disabled firefighters to report for light-duty.
Accordingly, said the court, “with no reference to light-duty assignments and no procedure described for contesting [such determinations], petitioners’ dispute does not fall within the terms or conditions of employment encompassed by the broad definition of grievances in the parties’ contract.”*
Do the rules outlined above also pertain to cases in which a municipality orders a firefighter to report for full duty? And do these apply to cases under GML Section 207-c, a parallel law that covers police officers? The court did not address those questions, but presumably the same procedures and guidelines would apply in such cases as well.
The Monroe case
The Monroe case suggests that municipalities do not have to submit disputes involving light duty to contract arbitration unless the contract specifically provides for arbitration of such disputes.
David Monroe worked for the Schenectady County Sheriff’s Department from 1985 to July 15, 1994 when he was terminated as a correction lieutenant for cause. In lieu of pursuing arbitration over his termination, Monroe agreed accepted a demotion and was reinstated to the position of correction officer.
Monroe returned to work on January 17, 1995 as a correction officer but departed within an hour, complaining of an inability to work due to stress and anxiety. On February 7, 1995, Monroe filed an application for, and ultimately won an arbitration award providing full disability benefits pursuant to General Municipal Law Section 207-c.
On January 18, 1997 and March 19, 1998, Monroe was examined by Steven Rappaport, a psychiatrist, who concluded that Monroe was capable of performing light-duty work for four to six weeks and could then return to full duty.
Monroe resisted an order to report for light-duty and “submitted unsigned reports by his own physicians opining that he was not fit to return to work for the Sheriff’s Department.”
The county told Monroe and his union that Monroe’s dispute over the return to work order was governed by Article XI of the county’s procedures. Under that provision, a step three grievance must be filed within 10 days of the employee’s receipt of a back-to-work order. But no grievance was ever filed.
Instead, a notice of arbitration on Monroe’s behalf was filed by the union “pursuant to Article 16 of the collective bargaining agreement between the parties ... and the [county’s] revised Article VI light duty assignments ... 207-c procedure”.
The county obtained a stay of arbitration and Council 82 appealed. The Appellate Division upheld the lower court’s granting the county’s motion to stay the arbitration, holding that:
1. General Municipal Law Section 207-c (3), directing that certain action be taken by the employer, leaves no room for negotiation and, thus, removes the issue from the scope of the Taylor Law. Under the clear language of the statute, an officer is entitled to salary and benefits only if he performs the light-duty assignment.
2. The county’s Article XI properly set out a step three grievance to challenge any determination on light duty. Due process is provided because any decision is subject to review under Article 16.3 of the collective bargaining agreement and allows submission of the step three grievance to arbitration before the Public Employment Review Board.
3. The Section 207-c procedure allows an employee to dispute any specific tasks assigned to him pursuant to a light-duty assignment.
The Court of Appeals affirmed the Appellate Division’s ruling.
These administrative procedures belied the union’s claim that an employee would not have meaningful review of the determination of his eligibility for light duty if he or she is not allowed to demand arbitration pursuant to the collective bargaining agreement.
Also the Appellate Division noted that the Court of Appeals has specifically held that General Municipal Law Section 207-c gives the municipality authority to order officers to light duty and such authority is not “subject to mandatory bargaining,” citing Schenectady Police Benevolent Assn. v New York State Public. Employment. Relations Board, 85 NY2d 480).
The court concluded that it is clear that, in any event, the matter is not arbitrable under the agreement between the parties as a reading of the collective bargaining agreement indicates that the county did not agree to the referral of such disputes to arbitration.
* The April 1, 1999 decisions by the Court of Appeals in the Watertown and Indian River School District cases [93 N.Y.2d 132] address the possibility of arbitration even if it is not specifically provided for in the collective bargaining agreement.
============================================
If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html ============================================
NYPPL
Cohoes v Local 2562, IAFF, Court of Appeals, 94 NY2d 686
Barnes v Council 82 [Monroe], Court of Appeals, 94 NY2d 719
What is the proper procedure for a municipal employer to a call disabled firefighter or police officer back to work for a light duty assignment? The Cohoes and Monroe cases offer some of the clearest judicial views on the administrative processing of GML Section 207-a/207-c matters involving light duty.
The Cohoes case
In this appeal, the Appellate Division considered the authority of a municipality to direct a firefighter receiving Section 207-a benefits to report for light-duty assignments.
Disagreeing with some of the rulings made by a state Supreme Court justice, the Appellate Division set out a number of guidelines for recalling an individual to perform light-duty. The Court of Appeals affirmed the Appellate Division’s ruling.
The decisions offer guidance on suspension of General Municipal Law Section 207-a benefits should the individual fail to report for duty, and explains when due process is required. The court set out the following guidelines:
1. The municipality must have the firefighter examined by the municipality’s physician to determine the individual’s fitness.
2. If the report indicates that the firefighter is fit to return to light-duty, he or she may be directed to report for appropriate assignment. Unless a Taylor Law agreement requires some administrative hearing, administrative due process does not require that the municipality hold a hearing prior to its issuing its return to work order.
3. If the firefighter contests the municipality’s directive to report for light-duty, he or she must submit documentation regarding his or her alleged medical inability to perform light-duty tasks.
4. If such documentation is submitted, the municipality is required to conduct an “evidentiary hearing” before it may take any action to modify the Section 207-a benefits being provided to the firefighter.
5. If the firefighter fails to submit medical evidence that he or she is unable to perform light-duty, he or she is entitled to a hearing before a final termination of Section 207-a benefits is imposed. However, the municipality is authorized to immediately withhold payroll checks because the firefighter failed to report to work as he or she did not provide the necessary “contrary medical documentation” required.
The Appellate Division also said that a disabled firefighter who objects to his or her recall for light-duty and submits the required medical documentation may not be required to charge his or her continued absence to accrued leave credits pending a final determination of their case.
Significantly, the court said the rights of individuals who provided “contrary medical documentation” are different from those of individuals who did not submit such documentation.
For instance, individuals who fail to submit such documentation may have their Section 207-a benefits discontinued immediately and must charge their continued absence to their leave credits, it any, if they wish to remain on the payroll.
But the municipality may not require the individuals who provided the required medical documentation to charge their absence to their leave credits in order to remain on the payroll, the court said. It ruled that such action would be improper because the municipality controls the time frame to be followed in completing the required administrative process.
Another issue involved the union’s demand that recall directives be submitted to arbitration. The Appellate Division observed that Section 207-a “does not dictate the procedures to be followed when a firefighter requests a due process hearing to challenge a municipality’s medical opinion.”
While there is no public policy impediment to the arbitration of light-duty disputes where the parties have so agreed, it is not available in instances where there is no such agreement between the parties in place, said the court.
The decision notes that the Taylor Law contract between the parties in the Cohoes case did not specifically provide for the arbitration of any challenge to the City’s directing disabled firefighters to report for light-duty.
Accordingly, said the court, “with no reference to light-duty assignments and no procedure described for contesting [such determinations], petitioners’ dispute does not fall within the terms or conditions of employment encompassed by the broad definition of grievances in the parties’ contract.”*
Do the rules outlined above also pertain to cases in which a municipality orders a firefighter to report for full duty? And do these apply to cases under GML Section 207-c, a parallel law that covers police officers? The court did not address those questions, but presumably the same procedures and guidelines would apply in such cases as well.
The Monroe case
The Monroe case suggests that municipalities do not have to submit disputes involving light duty to contract arbitration unless the contract specifically provides for arbitration of such disputes.
David Monroe worked for the Schenectady County Sheriff’s Department from 1985 to July 15, 1994 when he was terminated as a correction lieutenant for cause. In lieu of pursuing arbitration over his termination, Monroe agreed accepted a demotion and was reinstated to the position of correction officer.
Monroe returned to work on January 17, 1995 as a correction officer but departed within an hour, complaining of an inability to work due to stress and anxiety. On February 7, 1995, Monroe filed an application for, and ultimately won an arbitration award providing full disability benefits pursuant to General Municipal Law Section 207-c.
On January 18, 1997 and March 19, 1998, Monroe was examined by Steven Rappaport, a psychiatrist, who concluded that Monroe was capable of performing light-duty work for four to six weeks and could then return to full duty.
Monroe resisted an order to report for light-duty and “submitted unsigned reports by his own physicians opining that he was not fit to return to work for the Sheriff’s Department.”
The county told Monroe and his union that Monroe’s dispute over the return to work order was governed by Article XI of the county’s procedures. Under that provision, a step three grievance must be filed within 10 days of the employee’s receipt of a back-to-work order. But no grievance was ever filed.
Instead, a notice of arbitration on Monroe’s behalf was filed by the union “pursuant to Article 16 of the collective bargaining agreement between the parties ... and the [county’s] revised Article VI light duty assignments ... 207-c procedure”.
The county obtained a stay of arbitration and Council 82 appealed. The Appellate Division upheld the lower court’s granting the county’s motion to stay the arbitration, holding that:
1. General Municipal Law Section 207-c (3), directing that certain action be taken by the employer, leaves no room for negotiation and, thus, removes the issue from the scope of the Taylor Law. Under the clear language of the statute, an officer is entitled to salary and benefits only if he performs the light-duty assignment.
2. The county’s Article XI properly set out a step three grievance to challenge any determination on light duty. Due process is provided because any decision is subject to review under Article 16.3 of the collective bargaining agreement and allows submission of the step three grievance to arbitration before the Public Employment Review Board.
3. The Section 207-c procedure allows an employee to dispute any specific tasks assigned to him pursuant to a light-duty assignment.
The Court of Appeals affirmed the Appellate Division’s ruling.
These administrative procedures belied the union’s claim that an employee would not have meaningful review of the determination of his eligibility for light duty if he or she is not allowed to demand arbitration pursuant to the collective bargaining agreement.
Also the Appellate Division noted that the Court of Appeals has specifically held that General Municipal Law Section 207-c gives the municipality authority to order officers to light duty and such authority is not “subject to mandatory bargaining,” citing Schenectady Police Benevolent Assn. v New York State Public. Employment. Relations Board, 85 NY2d 480).
The court concluded that it is clear that, in any event, the matter is not arbitrable under the agreement between the parties as a reading of the collective bargaining agreement indicates that the county did not agree to the referral of such disputes to arbitration.
* The April 1, 1999 decisions by the Court of Appeals in the Watertown and Indian River School District cases [93 N.Y.2d 132] address the possibility of arbitration even if it is not specifically provided for in the collective bargaining agreement.
============================================
If you are interested in learning more about General Municipal Law §207-a or §207-c disability benefits and procedures please click here:
http://section207.blogspot.com/2010/03/v-behaviorurldefaultvml-o.html ============================================
NYPPL
Name-clearing hearings
Name-clearing hearings
Aquilone v City of New York, 262 AD2d 13, Motion for leave to appeal denied, 93 NY2d 819
A public employee who has been terminated from his or her position may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual.
The Aquilone case addresses whether a retiree who continues to work as a consultant to the employer is entitled to a name-clearing hearing if his or her behavior prior to retirement is criticized in an investigatory report, putting his or her consulting relationship in jeopardy.
Edward Aquilone, a former Executive Director of Personnel for the New York City Board of Education, won a court order in state Supreme Court directing the school board to hold a name-clearing hearing, only to have the order vacated by the Appellate Division.
Aquilone retired from his position in 1989. Two years later, the Deputy Commissioner of Investigation issued a report that concluded that Aquilone had participated in a cover-up of sexual misconduct involving a fellow employee. The report said that Aquilone appointed friends of the employee to a hearing panel to guarantee a result favorable to the accused and “ensure the proceeding’s secrecy”. The report alleged that Aquilone neglected to give a record of the hearing to the Board’s Office of Personnel Security or log the file into that office’s computer system.
Noting that Aquilone had already retired, the deputy commissioner’s report suggested that suspension or termination of [Aquilone] occasional consulting jobs with the board would constitute “appropriate disciplinary action.”
A four-judge panel of the Appellate Division, 1st Department, ruled that because Aquilone had been retired for two years when the stigmatizing allegations were made, and he was not fired, suspended or demoted, he is not entitled to a name-clearing hearing.
The court ruled that a name-clearing hearing was not appropriate because such a hearing “is a remedy for the deprivation of a person’s due process right when an employee is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence,” citing Donato v Plainview-Old Bethpage School District, 96 F.3d 623, cert. denied 519 US 1150.
In addition, the Appellate Division commented that defamation standing alone does not constitute a deprivation of a liberty interest protected by the due process clause -- some “stigma plus” must be shown before it rises to the level where the individual’s constitutional rights may have been adversely affected.
The court also cited Martz v Inc. Vill. Of Valley Stream, 22 F.3d 26, in which the Second Circuit U.S. Court of Appeals said:
in the context of defamation involving a government employee, defamation ... is not a deprivation of a liberty interest unless it occurs in the course of dismissal or refusal to rehire the individual as a government employee or during termination or alteration of some other legal right or status ... the “plus” is not only significant damage to a person’s employment opportunities, but dismissal from a government job or deprivation of some other legal right or status.
In addition, the court pointed out that reports such as that issued by the deputy commissioner are protected by an “absolute privilege,” referring to the Court of Appeals’ ruling in Ward Telecommunications and Computer Systems Inc. v State of New York, 42 NY2d 289.
In the Ward case, the Court of Appeals -- New York State’s highest court -- ruled that “official ordered reports issued on behalf of the State Comptroller by the Division of Audit and Accounts are subject to an absolute privilege in any action for defamation based on the content of such reports.”
The rationale for this, said the court, was that the public’s interest demands that there be no legal or practical constraint placed on the content of the Comptroller’s reports or deterrent to their availability for public scrutiny.
Applying this rationale to Aquilone’s situation, the Appellate Division said that “the same rule must apply to the results of an official investigation into cover-up of a sex crime committed by a public employee.”
NYPPL
Aquilone v City of New York, 262 AD2d 13, Motion for leave to appeal denied, 93 NY2d 819
A public employee who has been terminated from his or her position may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual.
The Aquilone case addresses whether a retiree who continues to work as a consultant to the employer is entitled to a name-clearing hearing if his or her behavior prior to retirement is criticized in an investigatory report, putting his or her consulting relationship in jeopardy.
Edward Aquilone, a former Executive Director of Personnel for the New York City Board of Education, won a court order in state Supreme Court directing the school board to hold a name-clearing hearing, only to have the order vacated by the Appellate Division.
Aquilone retired from his position in 1989. Two years later, the Deputy Commissioner of Investigation issued a report that concluded that Aquilone had participated in a cover-up of sexual misconduct involving a fellow employee. The report said that Aquilone appointed friends of the employee to a hearing panel to guarantee a result favorable to the accused and “ensure the proceeding’s secrecy”. The report alleged that Aquilone neglected to give a record of the hearing to the Board’s Office of Personnel Security or log the file into that office’s computer system.
Noting that Aquilone had already retired, the deputy commissioner’s report suggested that suspension or termination of [Aquilone] occasional consulting jobs with the board would constitute “appropriate disciplinary action.”
A four-judge panel of the Appellate Division, 1st Department, ruled that because Aquilone had been retired for two years when the stigmatizing allegations were made, and he was not fired, suspended or demoted, he is not entitled to a name-clearing hearing.
The court ruled that a name-clearing hearing was not appropriate because such a hearing “is a remedy for the deprivation of a person’s due process right when an employee is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence,” citing Donato v Plainview-Old Bethpage School District, 96 F.3d 623, cert. denied 519 US 1150.
In addition, the Appellate Division commented that defamation standing alone does not constitute a deprivation of a liberty interest protected by the due process clause -- some “stigma plus” must be shown before it rises to the level where the individual’s constitutional rights may have been adversely affected.
The court also cited Martz v Inc. Vill. Of Valley Stream, 22 F.3d 26, in which the Second Circuit U.S. Court of Appeals said:
in the context of defamation involving a government employee, defamation ... is not a deprivation of a liberty interest unless it occurs in the course of dismissal or refusal to rehire the individual as a government employee or during termination or alteration of some other legal right or status ... the “plus” is not only significant damage to a person’s employment opportunities, but dismissal from a government job or deprivation of some other legal right or status.
In addition, the court pointed out that reports such as that issued by the deputy commissioner are protected by an “absolute privilege,” referring to the Court of Appeals’ ruling in Ward Telecommunications and Computer Systems Inc. v State of New York, 42 NY2d 289.
In the Ward case, the Court of Appeals -- New York State’s highest court -- ruled that “official ordered reports issued on behalf of the State Comptroller by the Division of Audit and Accounts are subject to an absolute privilege in any action for defamation based on the content of such reports.”
The rationale for this, said the court, was that the public’s interest demands that there be no legal or practical constraint placed on the content of the Comptroller’s reports or deterrent to their availability for public scrutiny.
Applying this rationale to Aquilone’s situation, the Appellate Division said that “the same rule must apply to the results of an official investigation into cover-up of a sex crime committed by a public employee.”
NYPPL
Testimony by the appointing authority in a disciplinary action
Testimony by the appointing authority in a disciplinary action
DiMattina v LaBua, 262 AD2d 409
One of the issues considered by the Appellate Division in the DiMattina case appeal concerned the fact that the appointing authority both preferred the charges filed against Thomas J. DiMattina and testified against him at the disciplinary hearing that followed.
DiMattina, a Town of Huntington employee, was dismissed from his position after he was found guilty of having “wrongfully obtained and withheld Town-owned lumber, wrongfully obtained and withheld Town-owned tools and equipment, abused his authority, and improperly influenced subordinate Town employees with respect to political activities.”
The appointing authority, the director of the Department of General Services, had preferred the charges against DiMattina and testified at the subsequent disciplinary hearing. But the Appellate Division noted that “he properly disqualified himself from reviewing the recommendations of the Hearing Officer and acting on any of the charges.”
The determination was made by the Deputy Director, who was authorized to act generally in the Director’s absence pursuant to local law and who had been properly designated to render a final determination in DiMattina’s case.
The court said that “it is well settled that when an officer institutes charges of misconduct and testifies at an ensuing hearing, that officer, in the interest of fairness, must disqualify [himself or] herself from reviewing the Hearing Officer’s recommendations and rendering a final determination.” This was done in this case.
NYPPL
DiMattina v LaBua, 262 AD2d 409
One of the issues considered by the Appellate Division in the DiMattina case appeal concerned the fact that the appointing authority both preferred the charges filed against Thomas J. DiMattina and testified against him at the disciplinary hearing that followed.
DiMattina, a Town of Huntington employee, was dismissed from his position after he was found guilty of having “wrongfully obtained and withheld Town-owned lumber, wrongfully obtained and withheld Town-owned tools and equipment, abused his authority, and improperly influenced subordinate Town employees with respect to political activities.”
The appointing authority, the director of the Department of General Services, had preferred the charges against DiMattina and testified at the subsequent disciplinary hearing. But the Appellate Division noted that “he properly disqualified himself from reviewing the recommendations of the Hearing Officer and acting on any of the charges.”
The determination was made by the Deputy Director, who was authorized to act generally in the Director’s absence pursuant to local law and who had been properly designated to render a final determination in DiMattina’s case.
The court said that “it is well settled that when an officer institutes charges of misconduct and testifies at an ensuing hearing, that officer, in the interest of fairness, must disqualify [himself or] herself from reviewing the Hearing Officer’s recommendations and rendering a final determination.” This was done in this case.
NYPPL
Oct 20, 2010
Documents concerning an employee’s separation and post-termination employment benefits available under New York's Freedom of Information Law
Documents concerning an employee’s separation and post-termination employment benefits available under New York's Freedom of Information Law
William E. Hamilton submitted a Freedom of Information Law (FOIL) request seeking documentation concerning "the modification, amendment and/or termination of the employment agreement" between the Jordan-Elbridge Central School District and its superintendent, Marilyn Dominick, as well as any document relating to the termination of Dominick's employment with the district and any post-termination employment benefits. When the District declined to provide Hamilton with the documents he sought, he filed a petition in Supreme Court seeking a court order compelling the District to provide the documents he had sought.
Judge Greenwood stated that only one document was at issue: the agreement between Jordan-Elbridge and Dominick concerning her resignation and retirement.
Explaining that FOIL is based upon a presumption of access and all records of an agency are available except to the extent that the records or portions thereof fall within one or more grounds for denial, as set forth in Public Officer's Law §87,* the court noted that the statute is to be “liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.”
Significantly, Judge Greenwood commented that “both case law and the Committee on Open Government Advisory Opinions have held that a contract between an administrator and a school district must be disclosed under the FOIL, and neither the characterization of the documents as personal records nor their placement in personnel files render the documents confidential or deniable under the law.”
In response to the School District’s “justification for withholding the document,” Judge Greenwood conducted an in camera inspection of the document in question** and concluded that “none of the personal information alleged is contained in the agreement as [the District] claimed. Nor does the agreement contain a confidentiality provision as alleged by [the School District].***
In addition, Judge Greenwood said that the Court “would not be not bound by a confidentiality agreement and must make its own determination regarding disclosure.”
Finally, Judge Greenwood indicated that a party is entitled to its legal fees in prosecuting a FOIL proceeding if the party establishes that:
1) it has substantially prevailed;
2) the record sought was of clearly significant interest to the general public; and
3) the agency lacked a reasonable basis in law for withholding the record.
Here, said the court, there was no confidentiality agreement upon which the School District could have reasonably relied, nor is there any confidential information contained in the document that was required to be redacted.
Also, said the court, Hamilton had shown that the document is of significant interest to the general public and the Superintendent’s desire to keep the reason for her retirement and value of her severance package secret is not a sufficient basis under the Freedom of Information Law to deny the subject FOIL request.
Accordingly, Judge Greenwood awarded Hamilton “attorney's fees in the amount of $2,500.”
* The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].
** The term “in camera” is used to characterize a hearing or inspection of documents that takes places in private, often in a judge's chambers.
*** Robert J. Freeman, Executive Director, Committee on Open Government, has addressed “non-disclosure agreements.” His views are set out in the “Staff Advisory Opinion” posted on the Internet at http://www.dos.state.ny.us/coog/ftext/f14114.htm Further, in LaRocca v Jericho UFSD, 220 AD2d 424, the Appellate Division said that “as a matter of public policy, the Board of Education cannot bargain away the public’s right to access to public records.” The court ruled that the settlement agreement in question, or any part of it, providing for confidentiality or purporting to deny the public access to the document “is unenforceable as against the pubic interest.”
The decision, Hamilton v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51663(U), Decided on September 23, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports], is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51663.htm
NYPPL
William E. Hamilton submitted a Freedom of Information Law (FOIL) request seeking documentation concerning "the modification, amendment and/or termination of the employment agreement" between the Jordan-Elbridge Central School District and its superintendent, Marilyn Dominick, as well as any document relating to the termination of Dominick's employment with the district and any post-termination employment benefits. When the District declined to provide Hamilton with the documents he sought, he filed a petition in Supreme Court seeking a court order compelling the District to provide the documents he had sought.
Judge Greenwood stated that only one document was at issue: the agreement between Jordan-Elbridge and Dominick concerning her resignation and retirement.
Explaining that FOIL is based upon a presumption of access and all records of an agency are available except to the extent that the records or portions thereof fall within one or more grounds for denial, as set forth in Public Officer's Law §87,* the court noted that the statute is to be “liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.”
Significantly, Judge Greenwood commented that “both case law and the Committee on Open Government Advisory Opinions have held that a contract between an administrator and a school district must be disclosed under the FOIL, and neither the characterization of the documents as personal records nor their placement in personnel files render the documents confidential or deniable under the law.”
In response to the School District’s “justification for withholding the document,” Judge Greenwood conducted an in camera inspection of the document in question** and concluded that “none of the personal information alleged is contained in the agreement as [the District] claimed. Nor does the agreement contain a confidentiality provision as alleged by [the School District].***
In addition, Judge Greenwood said that the Court “would not be not bound by a confidentiality agreement and must make its own determination regarding disclosure.”
Finally, Judge Greenwood indicated that a party is entitled to its legal fees in prosecuting a FOIL proceeding if the party establishes that:
1) it has substantially prevailed;
2) the record sought was of clearly significant interest to the general public; and
3) the agency lacked a reasonable basis in law for withholding the record.
Here, said the court, there was no confidentiality agreement upon which the School District could have reasonably relied, nor is there any confidential information contained in the document that was required to be redacted.
Also, said the court, Hamilton had shown that the document is of significant interest to the general public and the Superintendent’s desire to keep the reason for her retirement and value of her severance package secret is not a sufficient basis under the Freedom of Information Law to deny the subject FOIL request.
Accordingly, Judge Greenwood awarded Hamilton “attorney's fees in the amount of $2,500.”
* The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].
** The term “in camera” is used to characterize a hearing or inspection of documents that takes places in private, often in a judge's chambers.
*** Robert J. Freeman, Executive Director, Committee on Open Government, has addressed “non-disclosure agreements.” His views are set out in the “Staff Advisory Opinion” posted on the Internet at http://www.dos.state.ny.us/coog/ftext/f14114.htm Further, in LaRocca v Jericho UFSD, 220 AD2d 424, the Appellate Division said that “as a matter of public policy, the Board of Education cannot bargain away the public’s right to access to public records.” The court ruled that the settlement agreement in question, or any part of it, providing for confidentiality or purporting to deny the public access to the document “is unenforceable as against the pubic interest.”
The decision, Hamilton v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51663(U), Decided on September 23, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports], is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51663.htm
NYPPL
Although an employer is required to provide a disabled individual with a reasonable workplace accommodation, commuting to work is not job-related
Although an employer is required to provide a disabled individual with a reasonable workplace accommodation, commuting to work is not job-related
Robin DiNatale initiated a proceeding pursuant to Executive Law §298 seeking to annul the determination by the New York State Division of Human Rights that she failed to establish that her employer, the New York State Insurance Fund, discriminated against her by refusing to accommodate her disability when it declined to permit her to work from her home. The Appellate Division affirmed the Division’s determination and dismissed DiNatale’s petition.
Although DiNatale had asked the Fund to allow her to work from her home, she conceded at the hearing held by a Division Administrative Law Judge that “nothing in her work environment caused the symptoms from which she suffered.” According to DiNatale, her symptoms “were aggravated by her drive to and from work” and thus she should be permitted to work from her home as an accommodation for her disability.
While the State’s Human Rights Law* requires employers to make reasonable accommodations to disabled employees, provided that the accommodations do not impose an undue hardship on the employer, the Appellate Division said that a reasonable accommodation is defined, in relevant part, “as an action that permits an employee with a disability to perform his or her job activities in a reasonable manner."
Noting that DiNatale had declined to move closer to her place of employment, had not asked anyone else, including family members or friends, to drive her to and from work and had not attempted to use available public transportation to commute to work, the court said that her employer was not required to accommodate her difficulties in commuting to and from work.**
An employee's commute, explained the court, "is an activity that is unrelated to and outside of [the] job [, and] an employer is required to provide reasonable accommodations that eliminate barriers in the work environment,” citing Salmon, 4 F Supp 2d at 1163. In the Appellate Division's view, an individual's commuting to and from work did not encompass his or her "work environment" insofar as the employer's duty to provide a reasonable accommodation was concerned.
* See Executive Law §296(3)(b)
** The decision notes that DiNatale had tried carpooling with one individual but the carpooling “was not convenient for that person.”
The decision, Matter of DiNatale v New York State Div. of Human Rights, 2010 NY Slip Op 06895, Decided on October 1, 2010, Appellate Division, Fourth Department, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06895.htm
NYPPL
Robin DiNatale initiated a proceeding pursuant to Executive Law §298 seeking to annul the determination by the New York State Division of Human Rights that she failed to establish that her employer, the New York State Insurance Fund, discriminated against her by refusing to accommodate her disability when it declined to permit her to work from her home. The Appellate Division affirmed the Division’s determination and dismissed DiNatale’s petition.
Although DiNatale had asked the Fund to allow her to work from her home, she conceded at the hearing held by a Division Administrative Law Judge that “nothing in her work environment caused the symptoms from which she suffered.” According to DiNatale, her symptoms “were aggravated by her drive to and from work” and thus she should be permitted to work from her home as an accommodation for her disability.
While the State’s Human Rights Law* requires employers to make reasonable accommodations to disabled employees, provided that the accommodations do not impose an undue hardship on the employer, the Appellate Division said that a reasonable accommodation is defined, in relevant part, “as an action that permits an employee with a disability to perform his or her job activities in a reasonable manner."
Noting that DiNatale had declined to move closer to her place of employment, had not asked anyone else, including family members or friends, to drive her to and from work and had not attempted to use available public transportation to commute to work, the court said that her employer was not required to accommodate her difficulties in commuting to and from work.**
An employee's commute, explained the court, "is an activity that is unrelated to and outside of [the] job [, and] an employer is required to provide reasonable accommodations that eliminate barriers in the work environment,” citing Salmon, 4 F Supp 2d at 1163. In the Appellate Division's view, an individual's commuting to and from work did not encompass his or her "work environment" insofar as the employer's duty to provide a reasonable accommodation was concerned.
* See Executive Law §296(3)(b)
** The decision notes that DiNatale had tried carpooling with one individual but the carpooling “was not convenient for that person.”
The decision, Matter of DiNatale v New York State Div. of Human Rights, 2010 NY Slip Op 06895, Decided on October 1, 2010, Appellate Division, Fourth Department, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06895.htm
NYPPL
Who is the employer?
Who is the employer?
Who was the employer who fired Floral Park Public Library part-time library clerk Barbara Beers: the Village of Floral Park or the Floral Park Public Library? Such a simple question is not as easy to answer as one might expect.
Barbara Beers was terminated from her position as a part-time clerk by the Floral Park Public Library. She sued both the village and the library, claiming that she had been unlawfully removed from her position without a hearing.
Actually Beers filed a “hybrid proceeding” consisting of an Article 78 to compel the library to reinstate her to her former position and a complaint contending the library violated 42 USC 1983, a federal civil rights statute, when it deprived her of a property right -- her job -- without a due process hearing. She also named the village as a defendant based on representations by its attorney that she had been an employee of the village.
In response, both the village and the library filed motions seeking to have Beers’ petition dismissed. The village said it should be severed from the action on the grounds that (notwithstanding the village attorney’s statements to Beers) it was not Beers’ former employer. The village argued that the library was not an agency or department of the village.
The library contended that Beers’ Article 78 action was untimely, having been filed more than four months after she had been terminated. A Supreme Court judge granted both motions and Beers appealed.
The Appellate Division commenced its analysis by noting that a public library is an educational corporation chartered by the New York State Board of Regents with the authority to hire, fire, and pay its employees and that the Education Law provides that a public library is an entity that is “separate and distinct from the municipality that created it.” It then noted that the relationship between the municipality and the public library may be varied by contract, either express or implied.
Was there an implied contract? Based on the record of the municipality’s behavior, the Appellate Division said that there was a triable issue of fact to be resolved as to which entity was Beers’ employer.
The court noted that the village had offered Beers a comparable clerk’s job and sent her a notice directing her to appear on a date certain for employment. In addition, the court said that the village, in its original answer, admitted “that it employed her”. Accordingly, said the court, it was not clear if the village assumed responsibility for the library’s employees, and thereby responsibility for her termination.
As to Beers’ claims against the library, the Appellate Division said that her Article 78 action was untimely because it was filed more than four months after her termination. It commented that Beers “knew that she worked in the library and that the library functioned separately through a board of trustees.”
However, the Appellate Division ruled that Beers’ complaint contending that the library had violated her civil rights under 42 USC 1983 because it terminated her without a hearing was timely.
The question of who is Beers’ employer and whether she was denied her rights to due process will now have to be considered by a state Supreme Court judge.
The decision, Beers v Village of Floral Park, 262 AD2d 315 , is posted on the Internet at:
http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=1&origin=Search&query=%22BARBARA+BEERS%22&rlt=CLID_QRYRLT508845531171910&rltdb=CLID_DB199475431171910&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA289785431171910&sv=Split&tempinfo=word&vr=2.0
NYPPL
NYPPL
Who was the employer who fired Floral Park Public Library part-time library clerk Barbara Beers: the Village of Floral Park or the Floral Park Public Library? Such a simple question is not as easy to answer as one might expect.
Barbara Beers was terminated from her position as a part-time clerk by the Floral Park Public Library. She sued both the village and the library, claiming that she had been unlawfully removed from her position without a hearing.
Actually Beers filed a “hybrid proceeding” consisting of an Article 78 to compel the library to reinstate her to her former position and a complaint contending the library violated 42 USC 1983, a federal civil rights statute, when it deprived her of a property right -- her job -- without a due process hearing. She also named the village as a defendant based on representations by its attorney that she had been an employee of the village.
In response, both the village and the library filed motions seeking to have Beers’ petition dismissed. The village said it should be severed from the action on the grounds that (notwithstanding the village attorney’s statements to Beers) it was not Beers’ former employer. The village argued that the library was not an agency or department of the village.
The library contended that Beers’ Article 78 action was untimely, having been filed more than four months after she had been terminated. A Supreme Court judge granted both motions and Beers appealed.
The Appellate Division commenced its analysis by noting that a public library is an educational corporation chartered by the New York State Board of Regents with the authority to hire, fire, and pay its employees and that the Education Law provides that a public library is an entity that is “separate and distinct from the municipality that created it.” It then noted that the relationship between the municipality and the public library may be varied by contract, either express or implied.
Was there an implied contract? Based on the record of the municipality’s behavior, the Appellate Division said that there was a triable issue of fact to be resolved as to which entity was Beers’ employer.
The court noted that the village had offered Beers a comparable clerk’s job and sent her a notice directing her to appear on a date certain for employment. In addition, the court said that the village, in its original answer, admitted “that it employed her”. Accordingly, said the court, it was not clear if the village assumed responsibility for the library’s employees, and thereby responsibility for her termination.
As to Beers’ claims against the library, the Appellate Division said that her Article 78 action was untimely because it was filed more than four months after her termination. It commented that Beers “knew that she worked in the library and that the library functioned separately through a board of trustees.”
However, the Appellate Division ruled that Beers’ complaint contending that the library had violated her civil rights under 42 USC 1983 because it terminated her without a hearing was timely.
The question of who is Beers’ employer and whether she was denied her rights to due process will now have to be considered by a state Supreme Court judge.
The decision, Beers v Village of Floral Park, 262 AD2d 315 , is posted on the Internet at:
http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=1&origin=Search&query=%22BARBARA+BEERS%22&rlt=CLID_QRYRLT508845531171910&rltdb=CLID_DB199475431171910&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA289785431171910&sv=Split&tempinfo=word&vr=2.0
NYPPL
NYPPL
Individual appointed to a public office does not have a right to reappointment to such public office after the individual’s term of office expires
Individual appointed to a public office does not have a right to reappointment to such public office after the individual’s term of office expires
Gupta v Town of Brighton, 2nd Cir., 182 F.3d 899
Is an individual entitled to be reappointed to public office upon the completion of his or her term? The Gupta decision demonstrates that the individual must be able to prove that he or she had a constitutional right to be continued in the office to prevail.
Brijen K. Gupta, a member of the Board of Trustees of the Brighton Memorial Library, was not reappointed to the board by the Town Council when his term expired. Claiming that he was denied reappointment (a) in retaliation for his public criticism of elected officials engaging in extramarital activities and (b) because of racial animus, Gupta sued the Town of Brighton, its Town Supervisor Sandra Frankel and one of its Council members, Robert Barbato, in federal court.
The Second Circuit U.S. Court of Appeals said that Gupta’s “claims are without merit” and sustained a federal district court judge’s ruling summarily dismissing Gupta’s complaint.
As to Gupta’s claim that his due process rights had been violated because he was not reappointed, the Circuit Court pointed out that in order to get the issue before a jury, much less prevail, Gupta had to show that he had the constitutionally required “legitimate claim of entitlement” to reappointment, citing Board of Regents v. Roth, 408 U.S. 564.
The court concluded that because Gupta was unable to demonstrate any entitlement to, or property interest in, the reappointment, the lower court properly dismissed his petition.
The Circuit Court commented that while Gupta alleged improper motive on the part of two of the five board members, “he has made no substantiated allegations that the remaining three board members were so motivated.” Accordingly, the court concluded, there is insufficient evidence of either discrimination or retaliation, especially since the vote not to reappoint him as a trustee of the library was unanimous.
.
Gupta v Town of Brighton, 2nd Cir., 182 F.3d 899
Is an individual entitled to be reappointed to public office upon the completion of his or her term? The Gupta decision demonstrates that the individual must be able to prove that he or she had a constitutional right to be continued in the office to prevail.
Brijen K. Gupta, a member of the Board of Trustees of the Brighton Memorial Library, was not reappointed to the board by the Town Council when his term expired. Claiming that he was denied reappointment (a) in retaliation for his public criticism of elected officials engaging in extramarital activities and (b) because of racial animus, Gupta sued the Town of Brighton, its Town Supervisor Sandra Frankel and one of its Council members, Robert Barbato, in federal court.
The Second Circuit U.S. Court of Appeals said that Gupta’s “claims are without merit” and sustained a federal district court judge’s ruling summarily dismissing Gupta’s complaint.
As to Gupta’s claim that his due process rights had been violated because he was not reappointed, the Circuit Court pointed out that in order to get the issue before a jury, much less prevail, Gupta had to show that he had the constitutionally required “legitimate claim of entitlement” to reappointment, citing Board of Regents v. Roth, 408 U.S. 564.
The court concluded that because Gupta was unable to demonstrate any entitlement to, or property interest in, the reappointment, the lower court properly dismissed his petition.
The Circuit Court commented that while Gupta alleged improper motive on the part of two of the five board members, “he has made no substantiated allegations that the remaining three board members were so motivated.” Accordingly, the court concluded, there is insufficient evidence of either discrimination or retaliation, especially since the vote not to reappoint him as a trustee of the library was unanimous.
.
Rescinding a letter of resignation
Rescinding a letter of resignationGrogan v Holland Patent CSD, App. Div., 4th Dept., 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756
Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that Holland Patent CSD food service worker Gina Grogan learned when she attempted to rescind her letter of resignation.
Grogan sent a letter to the district stating that she was resigning from her position “effective immediately.” After the letter had been forwarded to the district’s clerk, Grogan decided to withdraw her resignation. When the school board refused to allow her to do so, she sued.
The critical question: Did Grogan rescind her letter of resignation before it had been delivered to the “appointing authority?”
In this instance the appointing authority was the school board. The Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the Board.” Therefore, the resignation could not be withdrawn without the board’s consent.
Citing Oneida County’s Rules for Classified Civil Service, the Appellate Division sustained a lower court’s dismissal of Grogan’s petition.
The Appellate Division also referred to the Rules of the State Civil Service Commission, 4 NYCRR 5.3. 4 NYCRR 5.3, in pertinent part, provide that “every resignation shall be in writing” and “a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” The Rules of the State Commission only apply to state employees but many political subdivisions of the state have adopted similar provisions. In this instance, Oneida County’s Civil Service Commission had adopted such a provision.
The court said that “the record reveals a reasonable basis for the [board’s] decision not to consent to [Grogan’s] withdrawal of [her] resignation, and there is no indication that the decision was affected by an error of law, was arbitrary and capricious, or that it constituted an abuse of discretion.”
It should be noted that action by the appointing authority to “accept the resignation” is not “a condition precedent” for the resignation to take effect unless such action by the appointing authority is mandated by law.
For example, the Rules of the State Commission provide that if no effective date is specified in the resignation, it takes effect upon delivery to the appointing authority. If, on the other hand, an effective date is specified, the resignation is to take effect on that date. In any event, “acceptance of the resignation” by the appointing authority is not required.
In contrast, an appointing authority may elect to ignore a resignation delivered to it by an individual against whom disciplinary charges have been, or are about to be, filed and proceed with the disciplinary action. With respect to employees of the State as an employer, 4 NYCRR 5.3(b) provides, in pertinent part, as follows:
Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.
Significantly, should the appointing authority elect to disregard the employee’s resignation and proceed with disciplinary action, if the individual is found guilty and the penalty imposed is “dismissal,” the separation is recorded as a “dismissal” and not as a “resignation.” This means that the individual will be required to indicate that he or she was “terminated for cause” should such a question be asked in any application for employment he or she files in the future.
Another possible element in such cases: the individual whose resignation is ignored declines to appear at the disciplinary hearing. In such cases, the appointing authority must go forward and try the employee “in absentia.”
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."
New York City police officer Robert A. Mari was served with disciplinary charges alleging that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in criminal activities; (3) intentionally disclosed an informant's identity to a target of police activity; and (4) harassed "a former paramour."
When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.
The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in effect, a concession of guilt.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that Holland Patent CSD food service worker Gina Grogan learned when she attempted to rescind her letter of resignation.
Grogan sent a letter to the district stating that she was resigning from her position “effective immediately.” After the letter had been forwarded to the district’s clerk, Grogan decided to withdraw her resignation. When the school board refused to allow her to do so, she sued.
The critical question: Did Grogan rescind her letter of resignation before it had been delivered to the “appointing authority?”
In this instance the appointing authority was the school board. The Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the Board.” Therefore, the resignation could not be withdrawn without the board’s consent.
Citing Oneida County’s Rules for Classified Civil Service, the Appellate Division sustained a lower court’s dismissal of Grogan’s petition.
The Appellate Division also referred to the Rules of the State Civil Service Commission, 4 NYCRR 5.3. 4 NYCRR 5.3, in pertinent part, provide that “every resignation shall be in writing” and “a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” The Rules of the State Commission only apply to state employees but many political subdivisions of the state have adopted similar provisions. In this instance, Oneida County’s Civil Service Commission had adopted such a provision.
The court said that “the record reveals a reasonable basis for the [board’s] decision not to consent to [Grogan’s] withdrawal of [her] resignation, and there is no indication that the decision was affected by an error of law, was arbitrary and capricious, or that it constituted an abuse of discretion.”
It should be noted that action by the appointing authority to “accept the resignation” is not “a condition precedent” for the resignation to take effect unless such action by the appointing authority is mandated by law.
For example, the Rules of the State Commission provide that if no effective date is specified in the resignation, it takes effect upon delivery to the appointing authority. If, on the other hand, an effective date is specified, the resignation is to take effect on that date. In any event, “acceptance of the resignation” by the appointing authority is not required.
In contrast, an appointing authority may elect to ignore a resignation delivered to it by an individual against whom disciplinary charges have been, or are about to be, filed and proceed with the disciplinary action. With respect to employees of the State as an employer, 4 NYCRR 5.3(b) provides, in pertinent part, as follows:
Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.
Significantly, should the appointing authority elect to disregard the employee’s resignation and proceed with disciplinary action, if the individual is found guilty and the penalty imposed is “dismissal,” the separation is recorded as a “dismissal” and not as a “resignation.” This means that the individual will be required to indicate that he or she was “terminated for cause” should such a question be asked in any application for employment he or she files in the future.
Another possible element in such cases: the individual whose resignation is ignored declines to appear at the disciplinary hearing. In such cases, the appointing authority must go forward and try the employee “in absentia.”
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."
New York City police officer Robert A. Mari was served with disciplinary charges alleging that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in criminal activities; (3) intentionally disclosed an informant's identity to a target of police activity; and (4) harassed "a former paramour."
When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.
The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in effect, a concession of guilt.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Rescinding a letter of resignation
Rescinding a letter of resignation
Grogan v Holland Patent CSD, App. Div., 4th Dept., 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756
Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that Holland Patent CSD food service worker Gina Grogan learned when she attempted to rescind her letter of resignation.
Grogan sent a letter to the district stating that she was resigning from her position “effective immediately.” After the letter had been forwarded to the district’s clerk, Grogan decided to withdraw her resignation. When the school board refused to allow her to do so, she sued.
The critical question: Did Grogan rescind her letter of resignation before it had been delivered to the “appointing authority?”
In this instance the appointing authority was the school board. The Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the Board.” Therefore, the resignation could not be withdrawn without the board’s consent.
Citing Oneida County’s Rules for Classified Civil Service, the Appellate Division sustained a lower court’s dismissal of Grogan’s petition.
The Appellate Division also referred to the Rules of the State Civil Service Commission, 4 NYCRR 5.3. 4 NYCRR 5.3, in pertinent part, provide that “every resignation shall be in writing” and “a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” The Rules of the State Commission only apply to state employees but many political subdivisions of the state have adopted similar provisions. In this instance, Oneida County’s Civil Service Commission had adopted such a provision.
The court said that “the record reveals a reasonable basis for the [board’s] decision not to consent to [Grogan’s] withdrawal of [her] resignation, and there is no indication that the decision was affected by an error of law, was arbitrary and capricious, or that it constituted an abuse of discretion.”
It should be noted that action by the appointing authority to “accept the resignation” is not “a condition precedent” for the resignation to take effect unless such action by the appointing authority is mandated by law.
For example, the Rules of the State Commission provide that if no effective date is specified in the resignation, it takes effect upon delivery to the appointing authority. If, on the other hand, an effective date is specified, the resignation is to take effect on that date. In any event, “acceptance of the resignation” by the appointing authority is not required.
In contrast, an appointing authority may elect to ignore a resignation delivered to it by an individual against whom disciplinary charges have been, or are about to be, filed and proceed with the disciplinary action. With respect to employees of the State as an employer, 4 NYCRR 5.3(b) provides, in pertinent part, as follows:
Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.
Significantly, should the appointing authority elect to disregard the employee’s resignation and proceed with disciplinary action, if the individual is found guilty and the penalty imposed is “dismissal,” the separation is recorded as a “dismissal” and not as a “resignation.” This means that the individual will be required to indicate that he or she was “terminated for cause” should such a question be asked in any application for employment he or she files in the future.
Another possible element in such cases: the individual whose resignation is ignored declines to appear at the disciplinary hearing. In such cases, the appointing authority must go forward and try the employee “in absentia.”
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."
New York City police officer Robert A. Mari was served with disciplinary charges alleging that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in criminal activities; (3) intentionally disclosed an informant's identity to a target of police activity; and (4) harassed "a former paramour."
When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.
The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in effect, a concession of guilt.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Grogan v Holland Patent CSD, App. Div., 4th Dept., 262 AD2d 1009, motion for leave to appeal denied, 94 NY2d 756
Where Civil Service rules so provide, a resignation may not be withdrawn without the consent of the appointing authority. This was the lesson that Holland Patent CSD food service worker Gina Grogan learned when she attempted to rescind her letter of resignation.
Grogan sent a letter to the district stating that she was resigning from her position “effective immediately.” After the letter had been forwarded to the district’s clerk, Grogan decided to withdraw her resignation. When the school board refused to allow her to do so, she sued.
The critical question: Did Grogan rescind her letter of resignation before it had been delivered to the “appointing authority?”
In this instance the appointing authority was the school board. The Appellate Division said that even though the school board had not met and had no opportunity as a body to consider the resignation, the “[d]elivery of the letter of resignation to the clerk of the board constituted delivery to the Board.” Therefore, the resignation could not be withdrawn without the board’s consent.
Citing Oneida County’s Rules for Classified Civil Service, the Appellate Division sustained a lower court’s dismissal of Grogan’s petition.
The Appellate Division also referred to the Rules of the State Civil Service Commission, 4 NYCRR 5.3. 4 NYCRR 5.3, in pertinent part, provide that “every resignation shall be in writing” and “a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.” The Rules of the State Commission only apply to state employees but many political subdivisions of the state have adopted similar provisions. In this instance, Oneida County’s Civil Service Commission had adopted such a provision.
The court said that “the record reveals a reasonable basis for the [board’s] decision not to consent to [Grogan’s] withdrawal of [her] resignation, and there is no indication that the decision was affected by an error of law, was arbitrary and capricious, or that it constituted an abuse of discretion.”
It should be noted that action by the appointing authority to “accept the resignation” is not “a condition precedent” for the resignation to take effect unless such action by the appointing authority is mandated by law.
For example, the Rules of the State Commission provide that if no effective date is specified in the resignation, it takes effect upon delivery to the appointing authority. If, on the other hand, an effective date is specified, the resignation is to take effect on that date. In any event, “acceptance of the resignation” by the appointing authority is not required.
In contrast, an appointing authority may elect to ignore a resignation delivered to it by an individual against whom disciplinary charges have been, or are about to be, filed and proceed with the disciplinary action. With respect to employees of the State as an employer, 4 NYCRR 5.3(b) provides, in pertinent part, as follows:
Notwithstanding the provisions of this subdivision, when charges of incompetency or misconduct have been or are about to be filed against an employee, the appointing authority may elect to disregard a resignation filed by such employee and to prosecute such charges and, in the event that such employee is found guilty of such charges and dismissed from the service, his [or her] termination shall be recorded as a dismissal rather than as a resignation.
Significantly, should the appointing authority elect to disregard the employee’s resignation and proceed with disciplinary action, if the individual is found guilty and the penalty imposed is “dismissal,” the separation is recorded as a “dismissal” and not as a “resignation.” This means that the individual will be required to indicate that he or she was “terminated for cause” should such a question be asked in any application for employment he or she files in the future.
Another possible element in such cases: the individual whose resignation is ignored declines to appear at the disciplinary hearing. In such cases, the appointing authority must go forward and try the employee “in absentia.”
The Mari decision [Mari v Safir, 291 AD2d 298, motion for leave to appeal denied, 98 NY2d 613] sets out the general standards applied by the courts in resolving litigation resulting from conducting a disciplinary hearing in absentia.
The decision demonstrates that an individual against whom disciplinary charges have been filed cannot avoid the consequences of disciplinary action being taken against him or her by refusing to appear at the disciplinary hearing. The decision also provides an opportunity to explore a number of factors that should be kept in mind when involved in a disciplinary or other administrative action held "in absentia."
New York City police officer Robert A. Mari was served with disciplinary charges alleging that he (1) engaged in unauthorized off-duty employment; (2) knowingly associated with a person believed to be engaged in, likely to engage in, or to have engaged in criminal activities; (3) intentionally disclosed an informant's identity to a target of police activity; and (4) harassed "a former paramour."
When Mari failed to appear at his disciplinary hearing, he was "tried in absentia" and was found guilty of the several disciplinary charges filed against him. The penalty imposed: termination. Mari appealed, contending that he should be given a "new hearing" because he was not actually present during the disciplinary proceeding.
The Appellate Division, First Department, dismissed Mari's appeal. Conceding that Mari not present at the disciplinary hearing, the court said "a new hearing is not warranted since [Mari] avoided service of the notice of the revised hearing date, and thereafter intentionally absented himself from the hearing."
The general rule in such situations is that if the employee fails to appear at the disciplinary hearing, the charging party may elect to proceed but must actually hold a "hearing in absentia" and prove its allegations rather then merely impose a penalty on the individual on the theory that the employee's failure to appear at the hearing as scheduled is, in effect, a concession of guilt.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Policy-maker's terminated after spouse sues State alleges violation of a Constitutional right to associate with others in intimate relationships
Policy-maker's terminated after spouse sues State alleges violation of a Constitutional right to associate with others in intimate relationships
Adler v Pataki, 2nd Circ., 185 F.3d 35
Although the Second Circuit U.S. Court of Appeals has allowed a public employer to terminate a “policy-maker” solely for reasons of patronage, the Adler decision indicates that there is at least one possible exception to this general rule -- when the termination is alleged to involve “mixed-motives.” This case involved allegations that the policy-maker’s termination was not based on political considerations but was in retaliation because the policy-maker’s spouse had sued the State.
Alan Adler, a former deputy counsel with the State’s Office of Mental Retardation and Developmental Disabilities [OMRDD], sued the State, alleging that his First Amendment right of intimate association was violated because OMRDD terminated him because his wife had filed a lawsuit against state officials, including the State Attorney General.
Adler’s wife, a former Assistant Attorney General, was terminated from her position. She commenced a wrongful termination action against the Attorney General alleging that she was fired because she was not a Republican. She filed her lawsuit about a year before Adler was dismissed by OMRDD.
The Circuit Court said that the nature and extent of the right of intimate association is “hardly clear” but concluded that in Roberts v United States Jaycees, 468 U.S. 609, the U.S. Supreme Court has recognized such a right of association with two distinct components:
1. An individual’s right to associate with others in intimate relationships; and
2. A right to associate with others for purposes of engaging in activities traditionally protected by the First Amendment, such as speech and other expressive conduct.
The Circuit Court said that “[i]f simple vindictiveness against the plaintiff on account of his wife’s lawsuit was the defendants’ true motive, a First Amendment violation would be established” [emphasis added], overruling Northern District Judge Frederick J. Scullin Jr.
Judge Scullin had held that Adler was a policy-maker, and therefore he did not have any First Amendment protection against termination solely because of his political affiliation.
In addition, Judge Scullin said that to the extent that Adler’s claim was based on alleged mixed motives -- his political affiliation and his wife’s initiation of litigation against the state -- such an action “was foreclosed” by the Second Circuit’s decision in McEvoy v Spencer, 124 F.3d 92.”
But the three-judge Second Circuit panel said the district judge misinterpreted McEvoy. Although a policy-maker cannot claim First Amendment protection if he or she is dismissed because of political affiliation, “a policy-maker may not be discharged for such reasons as race, sex, or national origin.” Consistent with that view, the court ruled that:
1. Adler could proceed with his claim that he was fired solely in retaliation for his wife’s lawsuit, and not at all for reasons of political patronage.
2. Since Adler was a policy-maker, the State will prevail only if it can “ultimately demonstrate that he was in fact fired solely for reasons of political patronage”.
3. “To the extent that the [State] acted with a mixed motive, i.e., if they fired [Adler] in retaliation for his wife’s activities and for reasons of political patronage,” the McEvoy decision does not control and that the State has the burden of demonstrating that they would have removed the Adler from his position even if his wife had not been involved in litigation against the State.
The lesson here is that where a policy-maker was dismissed because of his or her political affiliation, the federal courts will uphold the termination if there is proof that the separation was the solely based on patronage considerations. But where “mixed-motives” are present, the public employer must prove that the policy-maker would have been terminated even if there were “no mix to the motive” for the termination to survive judicial scrutiny.
.
Adler v Pataki, 2nd Circ., 185 F.3d 35
Although the Second Circuit U.S. Court of Appeals has allowed a public employer to terminate a “policy-maker” solely for reasons of patronage, the Adler decision indicates that there is at least one possible exception to this general rule -- when the termination is alleged to involve “mixed-motives.” This case involved allegations that the policy-maker’s termination was not based on political considerations but was in retaliation because the policy-maker’s spouse had sued the State.
Alan Adler, a former deputy counsel with the State’s Office of Mental Retardation and Developmental Disabilities [OMRDD], sued the State, alleging that his First Amendment right of intimate association was violated because OMRDD terminated him because his wife had filed a lawsuit against state officials, including the State Attorney General.
Adler’s wife, a former Assistant Attorney General, was terminated from her position. She commenced a wrongful termination action against the Attorney General alleging that she was fired because she was not a Republican. She filed her lawsuit about a year before Adler was dismissed by OMRDD.
The Circuit Court said that the nature and extent of the right of intimate association is “hardly clear” but concluded that in Roberts v United States Jaycees, 468 U.S. 609, the U.S. Supreme Court has recognized such a right of association with two distinct components:
1. An individual’s right to associate with others in intimate relationships; and
2. A right to associate with others for purposes of engaging in activities traditionally protected by the First Amendment, such as speech and other expressive conduct.
The Circuit Court said that “[i]f simple vindictiveness against the plaintiff on account of his wife’s lawsuit was the defendants’ true motive, a First Amendment violation would be established” [emphasis added], overruling Northern District Judge Frederick J. Scullin Jr.
Judge Scullin had held that Adler was a policy-maker, and therefore he did not have any First Amendment protection against termination solely because of his political affiliation.
In addition, Judge Scullin said that to the extent that Adler’s claim was based on alleged mixed motives -- his political affiliation and his wife’s initiation of litigation against the state -- such an action “was foreclosed” by the Second Circuit’s decision in McEvoy v Spencer, 124 F.3d 92.”
But the three-judge Second Circuit panel said the district judge misinterpreted McEvoy. Although a policy-maker cannot claim First Amendment protection if he or she is dismissed because of political affiliation, “a policy-maker may not be discharged for such reasons as race, sex, or national origin.” Consistent with that view, the court ruled that:
1. Adler could proceed with his claim that he was fired solely in retaliation for his wife’s lawsuit, and not at all for reasons of political patronage.
2. Since Adler was a policy-maker, the State will prevail only if it can “ultimately demonstrate that he was in fact fired solely for reasons of political patronage”.
3. “To the extent that the [State] acted with a mixed motive, i.e., if they fired [Adler] in retaliation for his wife’s activities and for reasons of political patronage,” the McEvoy decision does not control and that the State has the burden of demonstrating that they would have removed the Adler from his position even if his wife had not been involved in litigation against the State.
The lesson here is that where a policy-maker was dismissed because of his or her political affiliation, the federal courts will uphold the termination if there is proof that the separation was the solely based on patronage considerations. But where “mixed-motives” are present, the public employer must prove that the policy-maker would have been terminated even if there were “no mix to the motive” for the termination to survive judicial scrutiny.
.
Probationary termination
Probationary termination
Green v Board of Education, 263 AD2d 385
Verna Green, a New York City probationary teacher, was terminated from her position. She sued, seeking reinstatement to her former position.
The Appellate Division sustained a lower court’s dismissal of Green’s petition. It pointed out that Green, as a probationary employee, could be terminated without a statement of reasons provided that the termination was not made in bad faith, was not made in violation of statutory or decisional law, or made for unconstitutional or illegal reasons.
Green had the burden of establishing such bad faith or illegal reasons were the basis for her termination. On this issue, the Appellate Division commented that “conclusory allegations of bad faith are insufficient to meet this burden or to warrant a hearing.”
.
Green v Board of Education, 263 AD2d 385
Verna Green, a New York City probationary teacher, was terminated from her position. She sued, seeking reinstatement to her former position.
The Appellate Division sustained a lower court’s dismissal of Green’s petition. It pointed out that Green, as a probationary employee, could be terminated without a statement of reasons provided that the termination was not made in bad faith, was not made in violation of statutory or decisional law, or made for unconstitutional or illegal reasons.
Green had the burden of establishing such bad faith or illegal reasons were the basis for her termination. On this issue, the Appellate Division commented that “conclusory allegations of bad faith are insufficient to meet this burden or to warrant a hearing.”
.
Means used to place candidates with tied scores on eligible list may impact on seniority for the purposes of layoff
Means used to place candidates with tied scores on eligible list may impact on seniority for the purposes of layoff
Fiffe v Cohoes Civil Service Comm., 262 AD2d 762, Motion for leave to appeal denied, 93 NY2d 819
Thomas Fiffe was one of seven candidates appointed to firefighter positions in Cohoes, all effective July 25, 1994. He was one of four candidates who had an examination score of 85 and was ranked fifth on the eligible list. But the Cohoes Civil Service Commission later revised this ranking and placed Fiffe seventh on the list. After losing his job in a layoff, Fiffe claimed this change was arbitrary and capricious, and that he had greater seniority than retained employees. The Appellate Division found in favor of the Commission, sustaining its action revising the list as rational and declined to disturb it.
The Commission claimed its original ranking was in error. It explained that at the time Fiffe applied for the examination, its seniority policy for civil service purposes differentiated applicants with the same examination score by ranking the applicants according to the date of receipt of each application and fee. As the result of an error, said the Commission, when the original eligibility list was issued, the candidates with tie scores were randomly placed on the list as among themselves rather than in the order of their application/fee date. In January 1997 -- 11 months before the layoff -- the Commission revised the eligible list “to reflect the correct date of application in accordance with its established policy.”
Fiffe contending that the issuance of a revised eligible list, and the resulting change in his rank and seniority, was arbitrary and capricious. He asked the court to change the date of his application to April 1, 1993. This, of course, would give him greater seniority for the purposes of layoff.
Fiffe argued that the April 1 date should be used because that was the date on which he had originally submitted his application for examination. His application was initially rejected by the Commission because of Fiffe’s date of birth but it was subsequently accepted and processed. The Commission used the later date rather than April 1, when determining his rank on the eligible list.
The Appellate Division sustained the Commission’s action, reflecting the fact that a local civil service commission can use any rational method of ranking to break scoring ties on eligible lists, as long as it is consistent in applying its rule.
============================================
If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
============================================
.
Fiffe v Cohoes Civil Service Comm., 262 AD2d 762, Motion for leave to appeal denied, 93 NY2d 819
Thomas Fiffe was one of seven candidates appointed to firefighter positions in Cohoes, all effective July 25, 1994. He was one of four candidates who had an examination score of 85 and was ranked fifth on the eligible list. But the Cohoes Civil Service Commission later revised this ranking and placed Fiffe seventh on the list. After losing his job in a layoff, Fiffe claimed this change was arbitrary and capricious, and that he had greater seniority than retained employees. The Appellate Division found in favor of the Commission, sustaining its action revising the list as rational and declined to disturb it.
The Commission claimed its original ranking was in error. It explained that at the time Fiffe applied for the examination, its seniority policy for civil service purposes differentiated applicants with the same examination score by ranking the applicants according to the date of receipt of each application and fee. As the result of an error, said the Commission, when the original eligibility list was issued, the candidates with tie scores were randomly placed on the list as among themselves rather than in the order of their application/fee date. In January 1997 -- 11 months before the layoff -- the Commission revised the eligible list “to reflect the correct date of application in accordance with its established policy.”
Fiffe contending that the issuance of a revised eligible list, and the resulting change in his rank and seniority, was arbitrary and capricious. He asked the court to change the date of his application to April 1, 1993. This, of course, would give him greater seniority for the purposes of layoff.
Fiffe argued that the April 1 date should be used because that was the date on which he had originally submitted his application for examination. His application was initially rejected by the Commission because of Fiffe’s date of birth but it was subsequently accepted and processed. The Commission used the later date rather than April 1, when determining his rank on the eligible list.
The Appellate Division sustained the Commission’s action, reflecting the fact that a local civil service commission can use any rational method of ranking to break scoring ties on eligible lists, as long as it is consistent in applying its rule.
============================================
If you are interested in learning more about layoff procedures involving employees in the public service in New York State please click here: http://nylayoff.blogspot.com/
============================================
.
Oct 19, 2010
Union president required to comply with a county ethics commission subpoena concerning union's employment of former county worker
Union president required to comply with a county ethics commission subpoena concerning union's employment of former county worker
The Suffolk County Ethics Commission issued subpoena* to compel Cheryl A. Felice, the President of a Suffolk County municipal employees union, to appear before it and give testimony relative to its investigation of services provided by a former county employee to the union on or after December of 2007.
Felice resisted the Committee’s efforts and the Commission filed a petition seeking a court order directing Felice to comply with its subpoena and appear before it with the relevant documents.
According to the decision, underlying Committee’s investigation was a sworn complaint alleging possible violations of Article XXX (Code of Ethics) of the Suffolk County Administrative Code** by a former county employee who was retained by the Felice's union of municipal employees as a consultant, strategist, employee or independent contractor.
In opposing the Committee’s action, the union argued:
1. The provisions in the Code of Ethics relied upon by the Commission are not applicable to the former county employee whom the union retained to assist it in its labor relations with the County.
2. The Commission failed to demonstrate that the subpoena is an appropriate exercise of the Commission's discretion.
3. The subpoena was procedurally deficient in that it does not appear to have been issued upon the unanimous vote of the members of the Commission as required by the Ethics Code.
4. Disclosure of the communications and documentation called for by the subpoena violates the "labor union leader privilege".
Judge Whelan rejected all of the union’s arguments and granted the Commission’s petition noting that “It is only where the subpoena recipient demonstrates that the subpoena is not within the authority of the issuing agency or that its scope may be fairly characterized as irrelevant, illegitimate or oppressive will the recipient's challenge be sustained. In this instance, said the court, Felice has not met her burden in this regard.
Rather, said the court, the Commission has met its initial burden of demonstrating its authority for engaging in the investigation and issuance of the subject subpoena and that the materials sought have a reasonable relationship to the subject matter under investigation as well as to the public purpose to be achieved and that the investigation has a sufficient factual predicate.
As to “the targeted former employee” not being not subject to the Committee’s reach, the issue of whether there has been a violation of the Ethic Code provision is a matter for the Commission to determine and any challenge to its ultimate determination and any challenges to the Commission’s authority are premature and beyond the scope of this “special proceeding commenced pursuant to CPLR 2308.”
Addressing Felice’s claim that subpoena was issued pursuant to a unanimous vote of the Commission, Judge Whelan observed that “The record contains due proof that the subpoena was duly authorized by the unanimous vote of three members of the Ethics Commission as required by §30-6(b) of the Ethics Code.”
Finally Judge Whelan rejected Felice’s argument that “labor union leader privilege” insulates a union's leader from disclosing communications and documents that are the target of the Commission’s subpoena as they concern union strategies, proposals, alliances and positions viz a viz the County as it is currently involved in collective bargaining negotiations with the union.
The court said that “The expansive evidentiary privilege for labor union leaders advanced by [Felice], which would immunize from disclosure, communications among union leaders and its paid staff regarding collective bargaining tactics, strategies and advice provided by such staff and other nonunion members has not been shown to be necessary to avoid the impairment of any fundamental rights of [Felice], her union, its members or its retained staff.”
In addition, Judge Whelan said that Felice did not show “that harm would inure to the public interest by reason of the disclosure of the items called for by the subpoena and that such harm far outweighs the interests of the [Commission] who seeks such disclosure.”
* The subpoena also required Felice “to produce any and all records and correspondence in her possession or in the possession of the union, by and between [Felice], other union officials and the former county employee, relative to the union's retention of the former county employee.”
** See §§A 30-4 and A 30-5
The decision, Matter of Suffolk County Ethics Commn. (Felice), 2010 NY Slip Op 20418, Decided on October 9, 2010, Supreme Court, Suffolk County, Judge Thomas F. Whelan, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20418.htm
NYPPL
The Suffolk County Ethics Commission issued subpoena* to compel Cheryl A. Felice, the President of a Suffolk County municipal employees union, to appear before it and give testimony relative to its investigation of services provided by a former county employee to the union on or after December of 2007.
Felice resisted the Committee’s efforts and the Commission filed a petition seeking a court order directing Felice to comply with its subpoena and appear before it with the relevant documents.
According to the decision, underlying Committee’s investigation was a sworn complaint alleging possible violations of Article XXX (Code of Ethics) of the Suffolk County Administrative Code** by a former county employee who was retained by the Felice's union of municipal employees as a consultant, strategist, employee or independent contractor.
In opposing the Committee’s action, the union argued:
1. The provisions in the Code of Ethics relied upon by the Commission are not applicable to the former county employee whom the union retained to assist it in its labor relations with the County.
2. The Commission failed to demonstrate that the subpoena is an appropriate exercise of the Commission's discretion.
3. The subpoena was procedurally deficient in that it does not appear to have been issued upon the unanimous vote of the members of the Commission as required by the Ethics Code.
4. Disclosure of the communications and documentation called for by the subpoena violates the "labor union leader privilege".
Judge Whelan rejected all of the union’s arguments and granted the Commission’s petition noting that “It is only where the subpoena recipient demonstrates that the subpoena is not within the authority of the issuing agency or that its scope may be fairly characterized as irrelevant, illegitimate or oppressive will the recipient's challenge be sustained. In this instance, said the court, Felice has not met her burden in this regard.
Rather, said the court, the Commission has met its initial burden of demonstrating its authority for engaging in the investigation and issuance of the subject subpoena and that the materials sought have a reasonable relationship to the subject matter under investigation as well as to the public purpose to be achieved and that the investigation has a sufficient factual predicate.
As to “the targeted former employee” not being not subject to the Committee’s reach, the issue of whether there has been a violation of the Ethic Code provision is a matter for the Commission to determine and any challenge to its ultimate determination and any challenges to the Commission’s authority are premature and beyond the scope of this “special proceeding commenced pursuant to CPLR 2308.”
Addressing Felice’s claim that subpoena was issued pursuant to a unanimous vote of the Commission, Judge Whelan observed that “The record contains due proof that the subpoena was duly authorized by the unanimous vote of three members of the Ethics Commission as required by §30-6(b) of the Ethics Code.”
Finally Judge Whelan rejected Felice’s argument that “labor union leader privilege” insulates a union's leader from disclosing communications and documents that are the target of the Commission’s subpoena as they concern union strategies, proposals, alliances and positions viz a viz the County as it is currently involved in collective bargaining negotiations with the union.
The court said that “The expansive evidentiary privilege for labor union leaders advanced by [Felice], which would immunize from disclosure, communications among union leaders and its paid staff regarding collective bargaining tactics, strategies and advice provided by such staff and other nonunion members has not been shown to be necessary to avoid the impairment of any fundamental rights of [Felice], her union, its members or its retained staff.”
In addition, Judge Whelan said that Felice did not show “that harm would inure to the public interest by reason of the disclosure of the items called for by the subpoena and that such harm far outweighs the interests of the [Commission] who seeks such disclosure.”
* The subpoena also required Felice “to produce any and all records and correspondence in her possession or in the possession of the union, by and between [Felice], other union officials and the former county employee, relative to the union's retention of the former county employee.”
** See §§A 30-4 and A 30-5
The decision, Matter of Suffolk County Ethics Commn. (Felice), 2010 NY Slip Op 20418, Decided on October 9, 2010, Supreme Court, Suffolk County, Judge Thomas F. Whelan, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_20418.htm
NYPPL
Neglecting to advise a party of the availability of an administrative appeal defeats a failure to exhaust administrative remedies defense
Neglecting to advise a party of the availability of an administrative appeal defeats a failure to exhaust administrative remedies defense
Julie Purcell initiated an Article 78 proceeding in an effort to compel the Jefferson County District Attorney to comply with her request pursuant to the Freedom of Information Law ([FOIL] Public Officers Law art 6) for documents relating to a criminal matter in which she was the complainant.
Supreme Court denied the District Attorney’s motion to dismiss Purcell’s petition on the grounds that she had failed to exhaust her administrative remedies.
The Appellate Division agreed, commenting that because the District Attorney’s office failed to advise Purcell of the availability of an administrative appeal of its refusal to supply the documents she had requested, “[the District Attorney] cannot be heard to complain that [Purcell] failed to exhaust [her] administrative remedies."
The Appellate Division also said that the award of attorney's fees by Supreme Court was appropriate as the District Attorney failed to respond to Purcell’s request or her appeal “within the statutory time" limits (see Pubic Officers Law §89[4][c][ii]). Under the circumstances, the Appellate Division concluded that Supreme Court did not abuse its discretion in awarding attorney's fees and costs in this action.
The decision, Matter of Purcell v Jefferson County Dist. Attorney, 2010 NY Slip Op 06882, Decided on October 1, 2010, Appellate Division, Fourth Department, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06882.htm
NYPPL
Julie Purcell initiated an Article 78 proceeding in an effort to compel the Jefferson County District Attorney to comply with her request pursuant to the Freedom of Information Law ([FOIL] Public Officers Law art 6) for documents relating to a criminal matter in which she was the complainant.
Supreme Court denied the District Attorney’s motion to dismiss Purcell’s petition on the grounds that she had failed to exhaust her administrative remedies.
The Appellate Division agreed, commenting that because the District Attorney’s office failed to advise Purcell of the availability of an administrative appeal of its refusal to supply the documents she had requested, “[the District Attorney] cannot be heard to complain that [Purcell] failed to exhaust [her] administrative remedies."
The Appellate Division also said that the award of attorney's fees by Supreme Court was appropriate as the District Attorney failed to respond to Purcell’s request or her appeal “within the statutory time" limits (see Pubic Officers Law §89[4][c][ii]). Under the circumstances, the Appellate Division concluded that Supreme Court did not abuse its discretion in awarding attorney's fees and costs in this action.
The decision, Matter of Purcell v Jefferson County Dist. Attorney, 2010 NY Slip Op 06882, Decided on October 1, 2010, Appellate Division, Fourth Department, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06882.htm
NYPPL
Terminated individual must repay salary received while his appeal was pending arbitration
Terminated individual must repay salary received while his appeal was pending arbitration
Rensselaer County v Hudson Valley Community College Faculty Association, Appellate Division, Third Dept., 262 AD2d 843, Motion for leave to appeal denied, 4 NY2d 753
In the Hudson Valley case, the Appellate Division decided that an arbitrator had the power to require a faculty member to repay the college for the salary it had paid to him while an appeal of his dismissal was pending arbitration.
The arbitrator had ordered the college to provide salary during this period, but apparently reserved the right to direct that the salary be repaid if she later determined that the dismissal was warranted, which she did.
Hudson Valley Community College dismissed a tenured member of its faculty, Thomas P. Neuhaus, and removed him from the payroll effective September 1, 1996.
The college alleged that Neuhaus had violated the collective bargaining agreement between the college and the Hudson Valley Community College Faculty Association when he gave each of the students in his electronics communication course a grade of 100 percent in lieu of an examination, which had been scheduled but was not administered.
Neuhaus was also charged with “improperly selling electronics equipment to students in exchange for special considerations.”
The Faculty Association filed two grievances on Neuhaus’ behalf. The first challenged Neuhaus’ termination. The second grievance concerned the college’s removing Neuhaus from the payroll and failing to continue his benefits while the disciplinary grievance was pending.
As to the salary grievance, the arbitrator ruled that the college had violated the collective bargaining agreement by failing to keep Neuhaus on the payroll during the pendency of the termination grievance. Accordingly, the college restored Neuhaus to the payroll retroactive to September 1, 1996.
The termination grievance then went to arbitration. In August 1997, the arbitrator rendered her award, concluding that:
1. Neuhaus was guilty of violating several articles in the collective bargaining agreement;
2. The penalty of termination was appropriate;
3. Neuhaus was not entitled to salary beyond August 21, 1996; and
4. Neuhaus should reimburse the college for salary paid to him after that date.
The college asked a State Supreme Court judge to confirm the arbitration award [see Section 7510, Civil Practice Law and Rules]. Neuhaus cross-petitioned the court seeking (1) to vacate the termination award and (2) to confirm the award in the salary grievance.
The Appellate Division rejected Neuhaus’ appeal seeking to overturn his termination. The court then said that it was “unpersuaded” that the arbitrator exceeded her authority in ordering Neuhaus to repay salary received for the period following August 21, 1996.
The Appellate Division ruled that the provision in the termination grievance award requiring Neuhaus to repay the salary the college had paid to him since September 1, 1996 “did not contradict” the salary grievance award. The court concluded that the salary grievance dealt exclusively with the issue of Neuhaus’ right to receive his salary pending the resolution of the termination grievance.
The court commented that in the salary grievance the arbitrator had ordered the college “to continue such payments until the matter is resolved by the issuance of an arbitration decision dealing with the merits of the dismissal, which decision shall then be controlling”. Accordingly, there was nothing to bar the arbitrator from directing Neuhaus to repay the salary he had received from the college since September 1, 1996.
However, there may be limitations with respect to the period during which a person against whom disciplinary charges have been filed may be suspended from his or her position without pay. An example of this is the statutory limitation set out in Section 75 of the Civil Service Law. Section 75 allows an individual against whom disciplinary charges have been filed to be suspended without pay for up to 30 days. The employee must be restored to the payroll after 30 days, even if he or she is directed not to report to work while the disciplinary action is pending.
In some cases a contract provision may allow the employer to suspend an individual without pay pending the determination of the disciplinary action. Such a provision is usually subjected to “narrow interpretation” by the courts. An illustration of such a narrow construction is set out in Board of Education v Nyquist (48 NY2D 97). In this case the Court of Appeals noted that the Taylor Law agreement negotiated by the parties allowed a teacher to be suspended without pay “pending an investigation and recommendation by the superintendent of schools.”
The board filed disciplinary charges against a suspended teacher after it had received the Superintendent’s recommendation. The teacher’s “suspended without pay” status was continued by the board. Some 10 months later a hearing panel found the teacher guilty of the charges. The penalty imposed: termination.
As a result of the litigation that followed, the district was directed to pay the teacher back salary for the period from the date of the superintendent’s recommendation to the board until the effective date of the dismissal. The Court of Appeals reasoned that “there (was) no authorization [in the contract] for the board’s suspending the employee without pay after the superintendent completed his investigation and made his report”.
Had the contract permitted the board to continue the teacher’s suspension without pay pending a final disciplinary decision, it appears likely that such a suspension would have been upheld by the court. The only limitation on the duration of a suspension without pay when authorized by a Taylor Law agreement appears to be that the employer may not use the suspension without pay as a sword by delaying the proceedings.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Rensselaer County v Hudson Valley Community College Faculty Association, Appellate Division, Third Dept., 262 AD2d 843, Motion for leave to appeal denied, 4 NY2d 753
In the Hudson Valley case, the Appellate Division decided that an arbitrator had the power to require a faculty member to repay the college for the salary it had paid to him while an appeal of his dismissal was pending arbitration.
The arbitrator had ordered the college to provide salary during this period, but apparently reserved the right to direct that the salary be repaid if she later determined that the dismissal was warranted, which she did.
Hudson Valley Community College dismissed a tenured member of its faculty, Thomas P. Neuhaus, and removed him from the payroll effective September 1, 1996.
The college alleged that Neuhaus had violated the collective bargaining agreement between the college and the Hudson Valley Community College Faculty Association when he gave each of the students in his electronics communication course a grade of 100 percent in lieu of an examination, which had been scheduled but was not administered.
Neuhaus was also charged with “improperly selling electronics equipment to students in exchange for special considerations.”
The Faculty Association filed two grievances on Neuhaus’ behalf. The first challenged Neuhaus’ termination. The second grievance concerned the college’s removing Neuhaus from the payroll and failing to continue his benefits while the disciplinary grievance was pending.
As to the salary grievance, the arbitrator ruled that the college had violated the collective bargaining agreement by failing to keep Neuhaus on the payroll during the pendency of the termination grievance. Accordingly, the college restored Neuhaus to the payroll retroactive to September 1, 1996.
The termination grievance then went to arbitration. In August 1997, the arbitrator rendered her award, concluding that:
1. Neuhaus was guilty of violating several articles in the collective bargaining agreement;
2. The penalty of termination was appropriate;
3. Neuhaus was not entitled to salary beyond August 21, 1996; and
4. Neuhaus should reimburse the college for salary paid to him after that date.
The college asked a State Supreme Court judge to confirm the arbitration award [see Section 7510, Civil Practice Law and Rules]. Neuhaus cross-petitioned the court seeking (1) to vacate the termination award and (2) to confirm the award in the salary grievance.
The Appellate Division rejected Neuhaus’ appeal seeking to overturn his termination. The court then said that it was “unpersuaded” that the arbitrator exceeded her authority in ordering Neuhaus to repay salary received for the period following August 21, 1996.
The Appellate Division ruled that the provision in the termination grievance award requiring Neuhaus to repay the salary the college had paid to him since September 1, 1996 “did not contradict” the salary grievance award. The court concluded that the salary grievance dealt exclusively with the issue of Neuhaus’ right to receive his salary pending the resolution of the termination grievance.
The court commented that in the salary grievance the arbitrator had ordered the college “to continue such payments until the matter is resolved by the issuance of an arbitration decision dealing with the merits of the dismissal, which decision shall then be controlling”. Accordingly, there was nothing to bar the arbitrator from directing Neuhaus to repay the salary he had received from the college since September 1, 1996.
However, there may be limitations with respect to the period during which a person against whom disciplinary charges have been filed may be suspended from his or her position without pay. An example of this is the statutory limitation set out in Section 75 of the Civil Service Law. Section 75 allows an individual against whom disciplinary charges have been filed to be suspended without pay for up to 30 days. The employee must be restored to the payroll after 30 days, even if he or she is directed not to report to work while the disciplinary action is pending.
In some cases a contract provision may allow the employer to suspend an individual without pay pending the determination of the disciplinary action. Such a provision is usually subjected to “narrow interpretation” by the courts. An illustration of such a narrow construction is set out in Board of Education v Nyquist (48 NY2D 97). In this case the Court of Appeals noted that the Taylor Law agreement negotiated by the parties allowed a teacher to be suspended without pay “pending an investigation and recommendation by the superintendent of schools.”
The board filed disciplinary charges against a suspended teacher after it had received the Superintendent’s recommendation. The teacher’s “suspended without pay” status was continued by the board. Some 10 months later a hearing panel found the teacher guilty of the charges. The penalty imposed: termination.
As a result of the litigation that followed, the district was directed to pay the teacher back salary for the period from the date of the superintendent’s recommendation to the board until the effective date of the dismissal. The Court of Appeals reasoned that “there (was) no authorization [in the contract] for the board’s suspending the employee without pay after the superintendent completed his investigation and made his report”.
Had the contract permitted the board to continue the teacher’s suspension without pay pending a final disciplinary decision, it appears likely that such a suspension would have been upheld by the court. The only limitation on the duration of a suspension without pay when authorized by a Taylor Law agreement appears to be that the employer may not use the suspension without pay as a sword by delaying the proceedings.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
.
Individuals may be disqualified for employment because of misrepresentations in employment application
Individuals may be disqualified for employment because of misrepresentations in employment application
Martin v Marchiselli, 262 AD2d 171
Section 50.4 of the Civil Service Law authorizes the state department of civil service or the responsible civil service commission to disqualify and terminate an applicant or an employee if he or she has materially misrepresented his or her qualifications on the application form. The Martin case concerns a New York City police officer who was terminated pursuant to Section 50.4 for this reason.
The New York City Civil Service Commission found New York City police officer Kevin A. Martin unfit for such employment following a post-appointment investigation where “undisputed evidence” showed that Martin had falsified his employment application “to conceal his using a social security number not his own to obtain a second New York State drivers’ license after his first license had been revoked.”
The Appellate Division ruled that the Commission’s action was neither arbitrary nor capricious since “the evidence warranted [Martin’s] retroactive disqualification for employment ... on grounds of both fraud and unsatisfactory character.”
.
Martin v Marchiselli, 262 AD2d 171
Section 50.4 of the Civil Service Law authorizes the state department of civil service or the responsible civil service commission to disqualify and terminate an applicant or an employee if he or she has materially misrepresented his or her qualifications on the application form. The Martin case concerns a New York City police officer who was terminated pursuant to Section 50.4 for this reason.
The New York City Civil Service Commission found New York City police officer Kevin A. Martin unfit for such employment following a post-appointment investigation where “undisputed evidence” showed that Martin had falsified his employment application “to conceal his using a social security number not his own to obtain a second New York State drivers’ license after his first license had been revoked.”
The Appellate Division ruled that the Commission’s action was neither arbitrary nor capricious since “the evidence warranted [Martin’s] retroactive disqualification for employment ... on grounds of both fraud and unsatisfactory character.”
.
Subscribe to:
Posts (Atom)
Editor in Chief Harvey Randall served as Director of Personnel, State University of New York Central Administration; Director of Research, Governor's Office of Employee Relations; Principal Attorney, Counsel's Office, New York State Department of Civil Service; and Colonel, JAG, Command Headquarters, New York Guard.
Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law.
Email: publications@nycap.rr.com