Employment status as an employee determines an employer liability
Rudder v City of New York, Appellate Division, 254 AD2d 115
There is a saying that a police officer is “always on duty.” While there is a great deal of truth in that exaggeration, it does not follow that the police officer’s employer is liable for all off-duty acts or omissions by the officer. The Rudder case shows that the employer is liable only for off-duty acts involving the performance of official duties.
Rudder was involved in an automobile accident with Scott V. Thompson, an off-duty New York City police officer. Thompson had been driving to the office of the Police Surgeon “for an unscheduled visit” when the accident occurred.
Thompson was driving a vehicle owned by another officer, and that vehicle was uninsured, unregistered and uninspected at the time of the accident. In addition, Thompson’s driver’s license had been suspended.
Rudder sued the City of New York on the theory that the city was liable for Thompson’s actions under the doctrine of respondeat superior (“let the master answer”). Rudder argued that a police officer “is always on duty” and Thompson’s trip to the police surgeon’s office constituted “official business.”
After a State Supreme Court judge disagreed and dismissed the city as a party in the action, Rudder appealed to the Appellate Division.
The Appellate Division said that “given this set of circumstances ... Thompson had not during the relevant time frame been acting in the course of his employment” as a police officer. It sustained the lower court’s determination severing the City of New York as a respondent in the lawsuit.
If the court had declared that Thompson had been acting in the scope of his employment, the city would have faced significant legal bills. Typically, a public employer is required to provide for the defense and indemnification of its officers and employees held liable in lawsuits involving the performance of, or their failure to perform, their official duties.
A similar case was Sanchez v NYC Transit Authority, 254 AD2d 345. Christopher Huwer, an off-duty Transit Authority police officer, was involved in an altercation in the course of a traffic dispute. The Appellate Division rejected Huwer’s demand that the Transit Authority provide for his defense and indemnification as mandated by Section 18 of the Public Officers Law.
The Appellate Division said that the record supported the “corporation counsel’s conclusion that the altercation underlying [Sanchez’s] action was personal in nature, and that [Huwer] was not acting within the scope of his employment.”
It is worth noting that a different rationale is applied when considering off-duty misconduct by law enforcement personnel for the purposes of disciplinary action as opposed to employer liability.
Employers may discipline officers for off-duty misconduct, even if remote from their official duties, if the action brings disrepute upon the employer. For instance, a New York City firefighter was fired after he participated in a September 7, 1998 Labor Day parade was held in the Broad Channel neighborhood of Queens County. As part of the parade, a float appeared that was said to have been intended as a “parody” of African-Americans. Participants rode on a decorated flatbed truck wearing ‘black face’ and wigs.” The firefighter unsuccessfully claimed he was unable to get a fair hearing because Mayor Rudy Guiliani had publicly vowed to fire any police or fire officers who were on the float..*
Similarly, the Appellate Division upheld the imposition of a 20-day suspension without pay when the police commissioner found that a police officer, while off-duty, “wrongfully and without just cause, harassed and threatened one of his neighbors” [Hogan v Bartton, Appellate Division, 254 AD2d 110].
Police officer Richard Hogan “warned the neighbor to ‘watch her back’ and [to have] used racial slurs while in a tirade....” The court said the penalty imposed did not “shock its sense of fairness,” and sustained the commissioner’s determination.
* See Von Essen v NYC Civil Service Commission, 3 A.D.3d 115 and Von Essen v. New York City Civil Service Com'n, 4 N.Y.3d 220, concerning other, jurisdictional, aspects of the underlying disciplinary action.
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.
Dec 2, 2010
Diversity education effort results in allegations of “intentional infliction of emotional distress”
Diversity education effort results in allegations of “intentional infliction of emotional distress”
Graham v Guilderland CSD, App. Div., 256 AD2d 863, Motion for leave to appeal denied, 93 NY2d 803
Teacher John Birchler found himself named as a defendant in a lawsuit when the parents of a black student objected to some of the comments he made during a class discussion concerning “Homosexual Awareness.”
According to the decision by the Appellate Division:
While discussing a “Homosexual Awareness Assembly” that had been held the previous day, a student asked [Birchler] “Why not call them Faggots? That’s what they are!” In response [Birchler] pointed to Elizabeth, the only African American in the classroom and stated, “Why not call Liz a ‘nigger’ because that’s what she is? Liz, why not tell us what it feels like to be called a ‘nigger.’“
Elizabeth and her parents sued the district and Birchler, claiming [Elizabeth was the victim of the] “intentional infliction of emotional distress.” They contended that because Elizabeth was the only African American in the class Birchler had a “heightened duty, as a teacher and role model, to refrain from engaging in what they describe as a ‘vicious racial attack’ ... in front of her peers.”
The Appellate Division sustained a lower court’s dismissal of the Graham’s complaint, finding that the allegations “did not rise to the level of ‘extreme and outrageous conduct’ necessary to sustain such a claim.” The court explained its ruling by indicating that Birchler’s remarks, “considered in their entirety, were plainly intended to convey his strong disapproval of such epithets by exemplifying -- perhaps, too effectively -- the pain they can cause.”
One member of the appellate panel, Judge Cardona, dissented. He said that the Graham’s complaint should not have been dismissed by the trial court, noting that “although it does not appear that [Birchler] deliberately intended to cause harm to [Elizabeth], his disregard and invasion of her feelings and emotions was at the very least reckless.” The lesson here is that attempting to address cultural diversity issues in the classroom has the potential for polarizing the community and prompting legal action. Unfortunately, there is no simple formula that can be applied that will insulate educators from criticism or litigation in such situations.
As Judge Cardona noted in his dissenting opinion, “although I agree with the majority that an open exchange of ideas should be encouraged in a classroom setting, that goal must yield to the protection of one’s emotional well-being.” According to Judge Cardona, “the fact that [Birchler’s] remarks were used in the context of a classroom discussion allegedly for the purpose of spurring conversation about prejudice does not render them less objectionable.”
NYPPL
Graham v Guilderland CSD, App. Div., 256 AD2d 863, Motion for leave to appeal denied, 93 NY2d 803
Teacher John Birchler found himself named as a defendant in a lawsuit when the parents of a black student objected to some of the comments he made during a class discussion concerning “Homosexual Awareness.”
According to the decision by the Appellate Division:
While discussing a “Homosexual Awareness Assembly” that had been held the previous day, a student asked [Birchler] “Why not call them Faggots? That’s what they are!” In response [Birchler] pointed to Elizabeth, the only African American in the classroom and stated, “Why not call Liz a ‘nigger’ because that’s what she is? Liz, why not tell us what it feels like to be called a ‘nigger.’“
Elizabeth and her parents sued the district and Birchler, claiming [Elizabeth was the victim of the] “intentional infliction of emotional distress.” They contended that because Elizabeth was the only African American in the class Birchler had a “heightened duty, as a teacher and role model, to refrain from engaging in what they describe as a ‘vicious racial attack’ ... in front of her peers.”
The Appellate Division sustained a lower court’s dismissal of the Graham’s complaint, finding that the allegations “did not rise to the level of ‘extreme and outrageous conduct’ necessary to sustain such a claim.” The court explained its ruling by indicating that Birchler’s remarks, “considered in their entirety, were plainly intended to convey his strong disapproval of such epithets by exemplifying -- perhaps, too effectively -- the pain they can cause.”
One member of the appellate panel, Judge Cardona, dissented. He said that the Graham’s complaint should not have been dismissed by the trial court, noting that “although it does not appear that [Birchler] deliberately intended to cause harm to [Elizabeth], his disregard and invasion of her feelings and emotions was at the very least reckless.” The lesson here is that attempting to address cultural diversity issues in the classroom has the potential for polarizing the community and prompting legal action. Unfortunately, there is no simple formula that can be applied that will insulate educators from criticism or litigation in such situations.
As Judge Cardona noted in his dissenting opinion, “although I agree with the majority that an open exchange of ideas should be encouraged in a classroom setting, that goal must yield to the protection of one’s emotional well-being.” According to Judge Cardona, “the fact that [Birchler’s] remarks were used in the context of a classroom discussion allegedly for the purpose of spurring conversation about prejudice does not render them less objectionable.”
NYPPL
Dec 1, 2010
Attorneys, Arbitrators, Mediators, Expert Witnesses
Attorneys, Arbitrators, Mediators, Expert Witnesses
. .
NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you are interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
NYPPL
. .
NYPPL readers often ask for the name of a professional to handle a personnel, retirement, civil rights or other employment related matter. If you are interested in being listed in NYPPL’s directory of professionals, send an e-mail to publications@nycap.rr.com with the word “Directory” as the subject and the details will be e-mailed back to you.
NYPPL
OATH administrative law judge recommends an award of $500 for the de minimis retaliation by supervisor against employee
OATH administrative law judge recommends an award of $500 for the de minimis retaliation by supervisor against employee
NYC Commission on Human Rights, ex rel. Cerullo v Fricione, OATH Index ## . 1865/10 & 1866/10
An alleged violation of New York City’s Human Rights Law was initiated by the New York City Commission on Human Rights (“the Commission”), pursuant to section 8-109(h) of the Administrative Code and section 1-71 of the Commission’s rules, 47 RCNY §1-71(a). Human Rights and heard by OATH Administrative Law Judge Faye Lewis.
Theresa Cerullo and Gregory Cerullo, A husband and wife who worked together on the custodial staff of a public high school brought claims of gender discrimination and retaliation against their supervisor.
ALJ Faye Lewis found that Mrs. Cerullo’s claims of gender discrimination were not proved. Although the supervisor was at times unpleasant, Judge Lewis decided that Mrs. Cerullo failed to prove that he treated men and women differently in the workplace.
However, Mrs. Cerullo proved that respondent took away Mr. Cerullo’s keys to the back room and garage in retaliation for Mr. Cerullo’s complaints about perceived discriminatory treatment against his wife.
Mrs. Cerullo, however, failed to prove that the supervisors retaliated against her husband by decreasing his overtime.
Judge Lewis recommended a $500 damage award for the de minimis retaliation proved by Mrs. Cerullo.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1865.pdf
NYPPL
NYC Commission on Human Rights, ex rel. Cerullo v Fricione, OATH Index ## . 1865/10 & 1866/10
An alleged violation of New York City’s Human Rights Law was initiated by the New York City Commission on Human Rights (“the Commission”), pursuant to section 8-109(h) of the Administrative Code and section 1-71 of the Commission’s rules, 47 RCNY §1-71(a). Human Rights and heard by OATH Administrative Law Judge Faye Lewis.
Theresa Cerullo and Gregory Cerullo, A husband and wife who worked together on the custodial staff of a public high school brought claims of gender discrimination and retaliation against their supervisor.
ALJ Faye Lewis found that Mrs. Cerullo’s claims of gender discrimination were not proved. Although the supervisor was at times unpleasant, Judge Lewis decided that Mrs. Cerullo failed to prove that he treated men and women differently in the workplace.
However, Mrs. Cerullo proved that respondent took away Mr. Cerullo’s keys to the back room and garage in retaliation for Mr. Cerullo’s complaints about perceived discriminatory treatment against his wife.
Mrs. Cerullo, however, failed to prove that the supervisors retaliated against her husband by decreasing his overtime.
Judge Lewis recommended a $500 damage award for the de minimis retaliation proved by Mrs. Cerullo.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1865.pdf
NYPPL
Dismissed probationer required to prove that his or her termination was for an improper reason
Dismissed probationer required to prove that his or her termination was for an improper reason
Matter of Lambert v Kelly, 2010 NY Slip Op 08618, decided on November 23, 2010, Appellate Division, First Department
Yolanda Lambert, a probationary police officer, challenged her termination from her position, alleging it was for an impermissible reason and in an effort to frustrate her receipt of vested interest retirement benefits.
Affirming the Supreme Court Alice Schlesinger’s decision dismissing Lambert’s petition, the Appellate Division said that the basic rules in adjudicating a probationer’s allegation that his or her probationary dismissal was unlawful are:
1. It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation or law; and
2. The burden of proving bad faith is on the employee, and its mere assertion, without supporting evidence, does not satisfy that requirement;
Here, said the Appellate Division, Lambert failed to produce competent proof that she was terminated for an impermissible or unlawful reason. On the contrary, the court pointed out that the record discloses a rational basis for the challenged determination, including:
1. Lambert had violated numerous NYPD regulations, including illegally parking her personal vehicle displayed an expired police parking permit that belong to another individual; and
2. Lambert used her position as an officer to try to get special treatment from the City Marshal's Office when attempting to retrive the illegally parked vehicle after it was impounded.
Finally, the Appellate Division said that there was no evidence that Lambert was dismissed “in order to frustrate her receipt of vested interest retirement benefits.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08618.htm
NYPPL
Matter of Lambert v Kelly, 2010 NY Slip Op 08618, decided on November 23, 2010, Appellate Division, First Department
Yolanda Lambert, a probationary police officer, challenged her termination from her position, alleging it was for an impermissible reason and in an effort to frustrate her receipt of vested interest retirement benefits.
Affirming the Supreme Court Alice Schlesinger’s decision dismissing Lambert’s petition, the Appellate Division said that the basic rules in adjudicating a probationer’s allegation that his or her probationary dismissal was unlawful are:
1. It is well settled that a probationary employee may be discharged without a hearing or statement of reasons, for any reason or no reason at all, in the absence of a showing that the dismissal was in bad faith, for a constitutionally impermissible purpose, or in violation or law; and
2. The burden of proving bad faith is on the employee, and its mere assertion, without supporting evidence, does not satisfy that requirement;
Here, said the Appellate Division, Lambert failed to produce competent proof that she was terminated for an impermissible or unlawful reason. On the contrary, the court pointed out that the record discloses a rational basis for the challenged determination, including:
1. Lambert had violated numerous NYPD regulations, including illegally parking her personal vehicle displayed an expired police parking permit that belong to another individual; and
2. Lambert used her position as an officer to try to get special treatment from the City Marshal's Office when attempting to retrive the illegally parked vehicle after it was impounded.
Finally, the Appellate Division said that there was no evidence that Lambert was dismissed “in order to frustrate her receipt of vested interest retirement benefits.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08618.htm
NYPPL
Use of hearsay testimony in disciplinary actions permitted
Use of hearsay testimony in disciplinary actions permitted
Brinson v Safir, Appellate Division, 255 AD2d 247, Motion for leave to appeal denied, 93 NY2d 805
James Brinson, a New York City police officer, was dismissed after being found guilty of “knowingly and wrongfully associat[ing] with persons know to be engaged in criminal activity.”
The evidence against Brinson consisted of hearsay statements of two informants. The statements of the informants were corroborated by police surveillance. The Appellate Division said that such testimony, together with its corroboration, constituted substantial evidence of the charges filed against Brinson and dismissed his appeal.
Another aspect of the appeal involved Brinson’s being required to submit to a drug test. The Appellate Division said that “corroborated information” supplied by informants provided a “reasonable suspicion” to require Brinson to undergo drug testing.
NYPPL
Brinson v Safir, Appellate Division, 255 AD2d 247, Motion for leave to appeal denied, 93 NY2d 805
James Brinson, a New York City police officer, was dismissed after being found guilty of “knowingly and wrongfully associat[ing] with persons know to be engaged in criminal activity.”
The evidence against Brinson consisted of hearsay statements of two informants. The statements of the informants were corroborated by police surveillance. The Appellate Division said that such testimony, together with its corroboration, constituted substantial evidence of the charges filed against Brinson and dismissed his appeal.
Another aspect of the appeal involved Brinson’s being required to submit to a drug test. The Appellate Division said that “corroborated information” supplied by informants provided a “reasonable suspicion” to require Brinson to undergo drug testing.
NYPPL
Protecting health insurance benefits after retirement
Protecting health insurance benefits after retirement
Rocco v City of Schenectady, App. Div., 252 AD2d 82, Motion for leave to appeal denied, 93 NY2d 1000
[Decided with Andriano v City of Schenectady, motion for leave to appeal denied, 93 NY2d 999]
In McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals ruled that there was no legal impediment to the City of Geneva’s unilateral alteration of “a past practice ... unrelated to any entitlement expressly conferred upon retirees in a collective bargaining agreement.”
The fact that retirees were involved was critical. The decision noted that “where a past practice between a public employer and its current employees is established, involving a mandatory subject of negotiation, the Taylor Law would bar the employer from discontinuing that practice without prior negotiation.”
But for retirees, benefits may be rescinded, even if established by past practice, if the benefits are not codified in a collective bargaining agreement to which the retirees were party, according to the McDonald decision.
Citing that ruling, a majority of an Appellate Division panel ruled in the Rocco and Andriano cases that a lower court was correct in barring the City of Schenectady from unilaterally changing the existing health insurance benefits of retired police officers and firefighters.
The critical difference was that in the Schenectady case the court found that the benefits were protected by the terms of a collective bargaining agreement negotiated pursuant to the Taylor Law.
Since 1969 labor agreements in Schenectady contained identical language providing that the city was to furnish, at its own expense, health insurance for retirees and their dependents “presently in effect for each member of the Department....” The Appellate Division said this meant that “when a member ... retired the coverage to which that individual was entitled [at the time of his or her retirement] remained fixed in time and could not be changed.”
The Appellate Division pointed out that:
1. The contract at issue had a duration of one to two years.
2. Once employees retire they are no longer represented by their union and have no collective bargaining rights under the Taylor Law.
3. Since retirees are not involved in subsequent negotiations, it is logical to assume that the agreement under which they retired was intended to insulate them from losing important insurance rights during subsequent negotiations.
The Court also distinguished the Rocco and Andriano plaintiffs, whose benefits were set out in a Taylor Law agreement, to those involved in the Geneva case. In Geneva, the retiree’s health insurance benefits were provided pursuant to a resolution adopted by the City Council rather than under a collective bargaining agreement.
NYPPL
Rocco v City of Schenectady, App. Div., 252 AD2d 82, Motion for leave to appeal denied, 93 NY2d 1000
[Decided with Andriano v City of Schenectady, motion for leave to appeal denied, 93 NY2d 999]
In McDonald Police Benevolent Association v City of Geneva, 92 NY2d 326, the Court of Appeals ruled that there was no legal impediment to the City of Geneva’s unilateral alteration of “a past practice ... unrelated to any entitlement expressly conferred upon retirees in a collective bargaining agreement.”
The fact that retirees were involved was critical. The decision noted that “where a past practice between a public employer and its current employees is established, involving a mandatory subject of negotiation, the Taylor Law would bar the employer from discontinuing that practice without prior negotiation.”
But for retirees, benefits may be rescinded, even if established by past practice, if the benefits are not codified in a collective bargaining agreement to which the retirees were party, according to the McDonald decision.
Citing that ruling, a majority of an Appellate Division panel ruled in the Rocco and Andriano cases that a lower court was correct in barring the City of Schenectady from unilaterally changing the existing health insurance benefits of retired police officers and firefighters.
The critical difference was that in the Schenectady case the court found that the benefits were protected by the terms of a collective bargaining agreement negotiated pursuant to the Taylor Law.
Since 1969 labor agreements in Schenectady contained identical language providing that the city was to furnish, at its own expense, health insurance for retirees and their dependents “presently in effect for each member of the Department....” The Appellate Division said this meant that “when a member ... retired the coverage to which that individual was entitled [at the time of his or her retirement] remained fixed in time and could not be changed.”
The Appellate Division pointed out that:
1. The contract at issue had a duration of one to two years.
2. Once employees retire they are no longer represented by their union and have no collective bargaining rights under the Taylor Law.
3. Since retirees are not involved in subsequent negotiations, it is logical to assume that the agreement under which they retired was intended to insulate them from losing important insurance rights during subsequent negotiations.
The Court also distinguished the Rocco and Andriano plaintiffs, whose benefits were set out in a Taylor Law agreement, to those involved in the Geneva case. In Geneva, the retiree’s health insurance benefits were provided pursuant to a resolution adopted by the City Council rather than under a collective bargaining agreement.
NYPPL
Nov 30, 2010
Willful dishonesty in responding to superior’s question justifies dismissal of the employee
Willful dishonesty in responding to superior’s question justifies dismissal of the employee
Department of Correction v Katanic, OATH #2117/10
Jason Katanic, a NYC Department of Corrections correction officer, trained other officers in gun safety and marksmanship.
The Department charged Katanic with the possession of “five undocumented handguns and three undocumented rifles, including two rifles that were illegal assault weapons.”
OATH Administrative Law Judge Joan R. Salzman found that Katanic had failed to obtain the required permission from the Department before he purchased the weapons as required by Department Directives.*
Judge Salzman also found that Katanic “was willfully dishonest” on multiple occasions when questioned by his superiors about his possession of those firearms.
Judge Salzman recommended that, despite Katanic’s 13-year record with the Department, his dishonesty and breach of security and trust warranted his being terminated from his position.
* Directive 4511R-A provides that a correction officer was required to file the necessary form to apply for permission from the Commanding Officer to purchase a personal handgun and that “A separate application to/and approval from the member’s Commanding Officer must precede each purchase of an additional firearm.”
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2117.pdf
NYPPL
Department of Correction v Katanic, OATH #2117/10
Jason Katanic, a NYC Department of Corrections correction officer, trained other officers in gun safety and marksmanship.
The Department charged Katanic with the possession of “five undocumented handguns and three undocumented rifles, including two rifles that were illegal assault weapons.”
OATH Administrative Law Judge Joan R. Salzman found that Katanic had failed to obtain the required permission from the Department before he purchased the weapons as required by Department Directives.*
Judge Salzman also found that Katanic “was willfully dishonest” on multiple occasions when questioned by his superiors about his possession of those firearms.
Judge Salzman recommended that, despite Katanic’s 13-year record with the Department, his dishonesty and breach of security and trust warranted his being terminated from his position.
* Directive 4511R-A provides that a correction officer was required to file the necessary form to apply for permission from the Commanding Officer to purchase a personal handgun and that “A separate application to/and approval from the member’s Commanding Officer must precede each purchase of an additional firearm.”
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2117.pdf
NYPPL
Police officer terminated after failing to report the loss of evidence
Police officer terminated after failing to report the loss of evidence
Bonifacio v Safir, App. Div., First Dept., 277 AD2d 8, Motion for leave to appeal denied, 96 NY2d 706
The Appellate Division sustained the dismissal of New York City police officer George Bonifacio after he was found guilty of disciplinary charges filed against him.
One charges involved Bonifacio’s actions after he had been reprimanded for having failed to respond to a radio call. According to the findings of the hearing officer, about an hour after he was reprimanded, Bonifacio approached his sergeant to discuss the matter and was discourteous to the point of being threatening. The fact that Bonifacio was upset at the time did not have any mitigating impact on the hearing officer’s consideration of the episode.
Another element in the disciplinary proceeding: Bonifacio also admitted he had failed to safeguard a firearm that he and his partner had recovered at a crime scene. Bonifacio also admitted that he had neglected to note the recovery of the weapon in his log.
Bonifacio attempted to explain his leaving the gun behind at the scene as a mistake that he wanted to cover up out of embarrassment.
The Appellate Division agreed with the hearing officer’s rejection of this excuse, concurring with the hearing officer’s finding that “it was extraordinarily irresponsible of [Bonifacio] not to tell any of his superiors about having left the gun behind, with the result that evidence of a crime was lost and an automatic weapon remains in the public domain.”
The court said that the penalty of dismissal does not shock its sense of fairness citing the Pell doctrine [Pell v Board of Education, 34 NY2d 222].
NYPPL
Bonifacio v Safir, App. Div., First Dept., 277 AD2d 8, Motion for leave to appeal denied, 96 NY2d 706
The Appellate Division sustained the dismissal of New York City police officer George Bonifacio after he was found guilty of disciplinary charges filed against him.
One charges involved Bonifacio’s actions after he had been reprimanded for having failed to respond to a radio call. According to the findings of the hearing officer, about an hour after he was reprimanded, Bonifacio approached his sergeant to discuss the matter and was discourteous to the point of being threatening. The fact that Bonifacio was upset at the time did not have any mitigating impact on the hearing officer’s consideration of the episode.
Another element in the disciplinary proceeding: Bonifacio also admitted he had failed to safeguard a firearm that he and his partner had recovered at a crime scene. Bonifacio also admitted that he had neglected to note the recovery of the weapon in his log.
Bonifacio attempted to explain his leaving the gun behind at the scene as a mistake that he wanted to cover up out of embarrassment.
The Appellate Division agreed with the hearing officer’s rejection of this excuse, concurring with the hearing officer’s finding that “it was extraordinarily irresponsible of [Bonifacio] not to tell any of his superiors about having left the gun behind, with the result that evidence of a crime was lost and an automatic weapon remains in the public domain.”
The court said that the penalty of dismissal does not shock its sense of fairness citing the Pell doctrine [Pell v Board of Education, 34 NY2d 222].
NYPPL
Tests applied in cases alleging dismissal from public service because of political affiliation
Tests applied in cases alleging dismissal from public service because of political affiliation
Bavaro and Hogan v Pataki, CA2, 130 F.3d 46
The Bavaro and Hogan v. Pataki case involved attorneys removed from their respective exempt class positions* in the New York State Health Department following the election of a new governor. There was no question that both were terminated because of their political affiliation.
The decision by the Second Circuit U.S. Court of Appeals is important as it sets out the various elements that the Second Circuit [New York State is within the Second Circuit’s jurisdiction] considers when deciding if an individual can claim First Amendment protection if he or she is terminated from the public service because of his or her political affiliation, or the lack of political affiliation.
Ralph Bavaro and Elizabeth Hogan contended that their terminations because of their political affiliation violated their First Amendment rights, which protected them from dismissal based on their political affiliation. The Circuit Court affirmed a district court’s ruling that “the incumbents of the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.”
There are limitations on political tests for continuing in the public service however. In Elrod v Burns, 427 US 347, the U.S. Supreme Court concluded that patronage dismissals may infringe upon government employees’ First Amendment rights to political belief and association.
However, the High Court also noted that a newly elected administration may expect political loyalty among at least some of its employees “to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.”
Subsequently the High Court reaffirmed that patronage dismissals may contravene the First Amendment in Branti v. Finkel [445 U.S. 507]. Branti concerned a deputy public defender employed by a political subdivision of New York. The test to be applied: has the appointing authority demonstrated that party affiliation is an appropriate requirement for the effective performance of the public office involved?
In Branti, the Supreme Court noted that political affiliation is not always relevant even to the job of a policymaker. As an example, the Branti decision notes that the coach of a state university’s football team [typically a position in the unclassified service] formulates policy, “but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa....”
The Second Circuit said that it understood Branti as standing for the proposition that “political affiliation is an appropriate [job] requirement when there is a rational connection between shared ideology and job performance” and thus the courts must look to the “inherent duties of the position” rather than the actual duties performed by the employee in a particular case. Accordingly, it is the official job description that controls, not the nature of the actual assignment or responsibilities of the individual.
In determining whether a “rational connection” exists between political affiliation and performance of the inherent duties of a position, the court said that it considers a number of factors, including the following:
1. Is the position exempt from civil service protection [subject to certain exceptions, i.e., veterans who served in time of war and exempt volunteer firefighters who may be subject to the provisions of Section 75 of the Civil Service Law]?
2. Is some technical competence or expertise required to satisfactorily perform the duties of the position?
3. Does the individual supervise the work of others? and
4. Is the incumbent “empowered to act and speak on behalf of a policymaker, especially an elected official”?
The court found that the positions held by Bavaro and Hogan (1) were in the exempt class; (2) required Bavaro, a supervisor, and Hogan, who was not a supervisor, to have “technical competence and expertise;” and (3) that they were not empowered to speak directly on behalf of an elected official. These findings, however, did not end the court’s inquiry.
The Circuit Court then found that Bavaro and Hogan represented the State in the performance of their duties, thereby reflecting the views of policymakers. This, the Circuit Court concluded, meant that Bavaro and Hogan were inherently involved in matters of policy extending “well beyond mere ministerial or technical duties.”
The court distinguished the role of Bavaro and Hogan from that of Branti. Branti, a deputy public defender, said the court, represented individuals accused of crimes -- not his employer. Accordingly, in a Branti situation the employee’s duty of loyalty is to the individual accused of a crime rather than to his or her employer - the Office of the Public Defender and there is no employer “policy issue” involved.
According to the ruling, Bavaro’s and Hogan’s “inherent duties” indicated a “rational connection between shared ideology and job performance,” so that “political affiliation is an appropriate [job] requirement” of these positions. Such was not the case in Branti, where political affiliation was not deemed a consideration to an individual’s continuation in public service although the position satisfied the four threshold elements set out by the Circuit Court.
* In September 1982 the Health Department justified its seeking jurisdictional re-classification of these titles to exempt status on the grounds that the incumbents “must be able to reflect the views of the Counsel and the [Health] Commissioner in oral appearances . . . and demonstrate the utmost discretion in handling these cases. To insure that the Commissioner’s views are appropriately reflected, the Agency needs maximum flexibility in selection, retention and remuneration.”
Bavaro and Hogan v Pataki, CA2, 130 F.3d 46
The Bavaro and Hogan v. Pataki case involved attorneys removed from their respective exempt class positions* in the New York State Health Department following the election of a new governor. There was no question that both were terminated because of their political affiliation.
The decision by the Second Circuit U.S. Court of Appeals is important as it sets out the various elements that the Second Circuit [New York State is within the Second Circuit’s jurisdiction] considers when deciding if an individual can claim First Amendment protection if he or she is terminated from the public service because of his or her political affiliation, or the lack of political affiliation.
Ralph Bavaro and Elizabeth Hogan contended that their terminations because of their political affiliation violated their First Amendment rights, which protected them from dismissal based on their political affiliation. The Circuit Court affirmed a district court’s ruling that “the incumbents of the positions of Associate and Assistant Counsel are not entitled to First Amendment protection against patronage dismissals.”
There are limitations on political tests for continuing in the public service however. In Elrod v Burns, 427 US 347, the U.S. Supreme Court concluded that patronage dismissals may infringe upon government employees’ First Amendment rights to political belief and association.
However, the High Court also noted that a newly elected administration may expect political loyalty among at least some of its employees “to the end that representative government not be undercut by tactics obstructing the implementation of policies of the new administration, policies presumably sanctioned by the electorate.”
Subsequently the High Court reaffirmed that patronage dismissals may contravene the First Amendment in Branti v. Finkel [445 U.S. 507]. Branti concerned a deputy public defender employed by a political subdivision of New York. The test to be applied: has the appointing authority demonstrated that party affiliation is an appropriate requirement for the effective performance of the public office involved?
In Branti, the Supreme Court noted that political affiliation is not always relevant even to the job of a policymaker. As an example, the Branti decision notes that the coach of a state university’s football team [typically a position in the unclassified service] formulates policy, “but no one could seriously claim that Republicans make better coaches than Democrats, or vice versa....”
The Second Circuit said that it understood Branti as standing for the proposition that “political affiliation is an appropriate [job] requirement when there is a rational connection between shared ideology and job performance” and thus the courts must look to the “inherent duties of the position” rather than the actual duties performed by the employee in a particular case. Accordingly, it is the official job description that controls, not the nature of the actual assignment or responsibilities of the individual.
In determining whether a “rational connection” exists between political affiliation and performance of the inherent duties of a position, the court said that it considers a number of factors, including the following:
1. Is the position exempt from civil service protection [subject to certain exceptions, i.e., veterans who served in time of war and exempt volunteer firefighters who may be subject to the provisions of Section 75 of the Civil Service Law]?
2. Is some technical competence or expertise required to satisfactorily perform the duties of the position?
3. Does the individual supervise the work of others? and
4. Is the incumbent “empowered to act and speak on behalf of a policymaker, especially an elected official”?
The court found that the positions held by Bavaro and Hogan (1) were in the exempt class; (2) required Bavaro, a supervisor, and Hogan, who was not a supervisor, to have “technical competence and expertise;” and (3) that they were not empowered to speak directly on behalf of an elected official. These findings, however, did not end the court’s inquiry.
The Circuit Court then found that Bavaro and Hogan represented the State in the performance of their duties, thereby reflecting the views of policymakers. This, the Circuit Court concluded, meant that Bavaro and Hogan were inherently involved in matters of policy extending “well beyond mere ministerial or technical duties.”
The court distinguished the role of Bavaro and Hogan from that of Branti. Branti, a deputy public defender, said the court, represented individuals accused of crimes -- not his employer. Accordingly, in a Branti situation the employee’s duty of loyalty is to the individual accused of a crime rather than to his or her employer - the Office of the Public Defender and there is no employer “policy issue” involved.
According to the ruling, Bavaro’s and Hogan’s “inherent duties” indicated a “rational connection between shared ideology and job performance,” so that “political affiliation is an appropriate [job] requirement” of these positions. Such was not the case in Branti, where political affiliation was not deemed a consideration to an individual’s continuation in public service although the position satisfied the four threshold elements set out by the Circuit Court.
* In September 1982 the Health Department justified its seeking jurisdictional re-classification of these titles to exempt status on the grounds that the incumbents “must be able to reflect the views of the Counsel and the [Health] Commissioner in oral appearances . . . and demonstrate the utmost discretion in handling these cases. To insure that the Commissioner’s views are appropriately reflected, the Agency needs maximum flexibility in selection, retention and remuneration.”
Establing a special eligible list
Establing a special eligible list
NYC v NYS Division of Human Rights, 250 AD2d 273
This case started 25 years ago when Eddie Ricks took and passed Civil Service Examination No. 3090 for the title of sanitation worker in the New York City Department of Sanitation (DOS). Ricks was disqualified because of spina bifida, a condition that, under the medical standards then in place, automatically disqualified an applicant for the position.*
In August 1990, the then-Commissioner of Human Rights signed an order upholding a finding of unlawful discrimination. However, the original eligible list had expired, preventing Ricks from being placed on a special eligible list on the basis of Deas v. Levitt (73 NY2d 525). Nevertheless, the then-Commissioner directed the city to pay Ricks compensatory damages consisting of back pay computed from the date he was disqualified to the date the eligible list expired (offset by his actual earnings during that time) as well as the compensatory damages recommended by an Administrative Law Judge.
The State Division Human Rights subsequently realized that the Commissioner who signed the order had appeared as counsel for SDHR in the matter and that “such dual participation in the proceedings” required de novo review and a new order. The newly appointed successor Commissioner vacated the 1990 order, conducted a de novo review of the hearing record and issued a new order that found that Ricks had been discriminated against on the basis of a disability that did not prevent him from performing the duties of the position sought. The city appealed the new ruling.
The Appellate Division said that there was a significance change in the Civil Service Law since Rick’s initial filing of his complaint with SDHR in 1983 with respect to the Division’s 1990 order. In 1990, under the Deas decision, once an eligible list expired, an applicant could be placed on a special eligible list only if he or she had commenced the proceeding challenging the validity of the list prior to its expiration. In 1994, specifically in response to Deas, the Legislature amended Civil Service Law Section 56 to provided that “[a]n applicant or eligible whose disqualification has been reversed or whose rank order has been adjusted subsequent to the expiration of an eligible list shall be placed on a special eligible list for a length of time ... not to exceed a maximum of one year” (CSL Section 56[3]).
The court said that the amendment recognized that because there were often long delays in adjudicating such claims, whether by administrative or judicial proceeding, “[t]oo often applicants find that, like those in Deas and DiNatale, they have won the battle to be found eligible to compete for a permanent civil service appointment, but have lost the war -- because the eligible list is approaching expiration or has expired.”
The Appellate Division resolved the matter by approving the Commissioner’s order in part, directing the city to:
(1) create a special eligible list for the position of sanitation worker for Ricks;
(2) award Ricks retroactive seniority if he is appointed from the special eligible list; and
(3) pay him $10,000 for mental anguish.
It rejected the Commissioner’s awarding Ricks back pay because Ricks only had “an expectancy” of employment rather than a guarantee of an appointment from an eligible list.
* The medical standards were subsequently revised, and the automatic disqualification for spina bifida was dropped.
NYPPL
NYC v NYS Division of Human Rights, 250 AD2d 273
This case started 25 years ago when Eddie Ricks took and passed Civil Service Examination No. 3090 for the title of sanitation worker in the New York City Department of Sanitation (DOS). Ricks was disqualified because of spina bifida, a condition that, under the medical standards then in place, automatically disqualified an applicant for the position.*
In August 1990, the then-Commissioner of Human Rights signed an order upholding a finding of unlawful discrimination. However, the original eligible list had expired, preventing Ricks from being placed on a special eligible list on the basis of Deas v. Levitt (73 NY2d 525). Nevertheless, the then-Commissioner directed the city to pay Ricks compensatory damages consisting of back pay computed from the date he was disqualified to the date the eligible list expired (offset by his actual earnings during that time) as well as the compensatory damages recommended by an Administrative Law Judge.
The State Division Human Rights subsequently realized that the Commissioner who signed the order had appeared as counsel for SDHR in the matter and that “such dual participation in the proceedings” required de novo review and a new order. The newly appointed successor Commissioner vacated the 1990 order, conducted a de novo review of the hearing record and issued a new order that found that Ricks had been discriminated against on the basis of a disability that did not prevent him from performing the duties of the position sought. The city appealed the new ruling.
The Appellate Division said that there was a significance change in the Civil Service Law since Rick’s initial filing of his complaint with SDHR in 1983 with respect to the Division’s 1990 order. In 1990, under the Deas decision, once an eligible list expired, an applicant could be placed on a special eligible list only if he or she had commenced the proceeding challenging the validity of the list prior to its expiration. In 1994, specifically in response to Deas, the Legislature amended Civil Service Law Section 56 to provided that “[a]n applicant or eligible whose disqualification has been reversed or whose rank order has been adjusted subsequent to the expiration of an eligible list shall be placed on a special eligible list for a length of time ... not to exceed a maximum of one year” (CSL Section 56[3]).
The court said that the amendment recognized that because there were often long delays in adjudicating such claims, whether by administrative or judicial proceeding, “[t]oo often applicants find that, like those in Deas and DiNatale, they have won the battle to be found eligible to compete for a permanent civil service appointment, but have lost the war -- because the eligible list is approaching expiration or has expired.”
The Appellate Division resolved the matter by approving the Commissioner’s order in part, directing the city to:
(1) create a special eligible list for the position of sanitation worker for Ricks;
(2) award Ricks retroactive seniority if he is appointed from the special eligible list; and
(3) pay him $10,000 for mental anguish.
It rejected the Commissioner’s awarding Ricks back pay because Ricks only had “an expectancy” of employment rather than a guarantee of an appointment from an eligible list.
* The medical standards were subsequently revised, and the automatic disqualification for spina bifida was dropped.
NYPPL
Local law permitting suspension of an employee without pay beyond the 30 days permitted by Civil Service Law Section 75 held controlling
Local law permitting suspension of an employee without pay beyond the 30 days permitted by Civil Service Law Section 75 held controlling
Meringolo v Jacobson, 256 AD2d 20
Section 75(3) of the Civil Service Law authorizes the suspension of an individual upon whom disciplinary charges have been filed for up to 30 days without pay.* If the hearing has not been completed by the 30th day, the individual must be restored to the payroll. But what if a local law provides more flexibility? Which law takes precedence? The Meringolo shows that the answer depends on the details of the legislative history, including which law was enacted first.
Meringolo, a corrections captain, was suspended from his job with New York City for more than 30 days. Administrators cited City Administrative Code Section 9-112, which provides that a member of the city’s uniformed forces may be suspended without pay “while criminal charges are pending.”
When Meringolo challenged the legality of his suspension, the city cited Section 76(4) of the Civil Service Law, which provides that nothing in Section 75 shall be construed to “repeal or modify” any local law. The city claimed it could therefore legally suspend the captain without pay for than the 30-day period, as authorized by Section 75 pursuant to Section 9-112. The Appellate Division, upholding a lower court’s ruling, disagreed.
The court said the problem in the city’s reasoning was that Section 9-112 was not enacted until after Section 76(4) was legislated. Section 76(4) can be thought of as a “grandfather clause” that applies only to local laws enacted before its effective date. This implies that had Section 9-112 been in place prior to the adoption of Section 76(4), it would have been “grandfathered” and probably survived judicial review.
The Appellate Division affirmed the Supreme Court’s order directing the city to restore the captain to its payroll and pay him the back salary due him for the period of his suspension without pay in excess of 30 days.
* Disciplinary grievance procedures set out in a collective bargaining agreement may permit the suspension of an employee without pay pending the resolution of disciplinary charges. Also, Education Law Section 3020-a.2(b) authorizes an educator against whom charges have been filed to be suspended without pay if the individual has entered a guilty plea to or has been convicted of a felony crime involving “the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical or sexual abuse of a minor or student.”
NYPPL
Meringolo v Jacobson, 256 AD2d 20
Section 75(3) of the Civil Service Law authorizes the suspension of an individual upon whom disciplinary charges have been filed for up to 30 days without pay.* If the hearing has not been completed by the 30th day, the individual must be restored to the payroll. But what if a local law provides more flexibility? Which law takes precedence? The Meringolo shows that the answer depends on the details of the legislative history, including which law was enacted first.
Meringolo, a corrections captain, was suspended from his job with New York City for more than 30 days. Administrators cited City Administrative Code Section 9-112, which provides that a member of the city’s uniformed forces may be suspended without pay “while criminal charges are pending.”
When Meringolo challenged the legality of his suspension, the city cited Section 76(4) of the Civil Service Law, which provides that nothing in Section 75 shall be construed to “repeal or modify” any local law. The city claimed it could therefore legally suspend the captain without pay for than the 30-day period, as authorized by Section 75 pursuant to Section 9-112. The Appellate Division, upholding a lower court’s ruling, disagreed.
The court said the problem in the city’s reasoning was that Section 9-112 was not enacted until after Section 76(4) was legislated. Section 76(4) can be thought of as a “grandfather clause” that applies only to local laws enacted before its effective date. This implies that had Section 9-112 been in place prior to the adoption of Section 76(4), it would have been “grandfathered” and probably survived judicial review.
The Appellate Division affirmed the Supreme Court’s order directing the city to restore the captain to its payroll and pay him the back salary due him for the period of his suspension without pay in excess of 30 days.
* Disciplinary grievance procedures set out in a collective bargaining agreement may permit the suspension of an employee without pay pending the resolution of disciplinary charges. Also, Education Law Section 3020-a.2(b) authorizes an educator against whom charges have been filed to be suspended without pay if the individual has entered a guilty plea to or has been convicted of a felony crime involving “the criminal sale or possession of a controlled substance, a precursor of a controlled substance, or drug paraphernalia as defined in article two hundred twenty or two hundred twenty-one of the penal law; or a felony crime involving the physical or sexual abuse of a minor or student.”
NYPPL
Withdrawing from membership in a New York State public retirement system
Withdrawing from membership in a New York State public retirement system
Richardson v NYC Employees’ Retirement System, NYS Supreme Court, Justice Gammerman, [Not selected for publication in the Official Reports]
A member of a public retirement system may lose his or her eligibility for significant benefits if he or she decides to withdraw his or her contributions upon leaving public employment. The Richardson decision illustrates this.
Richardson, a New York City corrections officer, joined the New York City Employees’ Retirement System [NYCERS] in 1987. When he resigned from his position on September 29, 1997, Richardson submitted a form to NYCERS asking for a refund of all of the money he contributed to the System. In late November 1997, the System sent him a check for the full amount of his employee contributions -- approximately $19,000.
However, Richardson had also submitted an application for a disability pension to the Medical Division of NYCERS on October 14, 1997. He was found disabled by both the NYCERS Medical Board and an outside health provider after medical examinations. The Medical Division staff was unaware that Richardson had applied for, and received, his membership contributions.
On February 9, 1998, the Medical Division wrote to Richardson indicating that the Medical Board had approved his application and the NYCERS Board of Trustees would consider it. A few days later NYCERS again wrote to Richardson advising him that its February 9, 1998 letter was sent by mistake as he was in fact no longer eligible for disability retirement benefits because in September 1997 he elected to withdraw his employee contributions. Accordingly, said the System, he ceased to be a member of NYCERS and thus was ineligible for disability retirement benefits.
Richardson sued, contending that he was entitled to a disability pension since the Medical Board approved his initial application. He claimed that NYCERS’ determination rejecting his application for disability retirement was arbitrary, capricious and unlawful under both the United States and New York constitutions. He also claimed that had he been notified that the withdrawal of his contributions would disqualify him for disability retirement, he would have returned the money and remained a member of NYCERS.
As to Richardson’s argument concerning the rejection of his application for disability retirement, Justice Gammerman said that Section 517 of the Retirement and Social Security Law specifically provides that: “[u]pon withdrawal of contributions by a member ... membership in the public retirement system involved shall cease.” Justice Gammerman concluded that Richardson’s withdrawal of his contributions terminated his membership with NYCERS and his eligibility for disability benefits.
Justice Gammerman also rejected Richardson’s contention that the System should have warned him of the fact that he would become ineligible for benefits if he withdrew his contributions. He said that:
“there is no affirmative duty for NYCERS administrative staff to inform about the specifics of pension provisions beyond providing written material ... [members are] thus charged with constructive knowledge [of the pension materials]” and that “not inquiring about the status of one’s pension rights is unreasonable.”
The court held that NYCERS’ decision was reasonable and that its refusal to consider Richardson’s application for disability retirement benefits was neither arbitrary nor capricious. It then dismissed Richardson’s petition.
If a member of the New York State Employees’ Retirement [ERS] system leaves government service and does not withdraw his or her employee contributions, he or she continues to be a member of ERS. His or her ERS membership, however, will cease after five years have elapsed since he or she last left government service, or he or she dies or retires, whichever event first occurs [Section 40.f, Retirement and Social Security Law].
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John J. Murphy, the NYCERS' Executive Director from 1990 to 2005, e-mailed NYPPL stating that “I assume this member did not have 10 years of credited service. If he did, the refund was given contrary to law. The fact that he was granted a tentative disability, however, leads to the possibility that he may have had 10 years of service. Unless he was disabled due to an accident on the job, he would have had to have been credited with ten years of service to have been granted a disability. The crucial fact is how much service was he credited with when he resigned on Sept 27, 1997. Mr. Murphy further asked: “Did this plaintiff have 10 years of service in Sept, 1997? This supersedes the court decision. NYCERS must correct any error if they find them. If the refund was given after 10 years of credited service, it was invalid and therefore, the disability benefit is in force retroactively to 1997. [Mr. Murphy posts a blog focusing on the New York City Employees’ Retirement System at http://nycers-info-murphy.blogspot.com/ ]
NYPPL comments: Assuming, but not conceding, that Richardson did not have 10 years of member service at the time he withdrew his employee contributions, the Richardson decision demonstrates that in the event a member of a public retirement system withdraws his or her "employee contributions" upon resignation or termination, which he or she may elect to do if otherwise permitted, his or her membership in a New York public retirement system* ceases for the purposes of subsequently claiming eligibility for any benefit otherwise available to a member.
In contrast, were such an individual not to withdraw such employee contributions and he or she is later appointed to a position whereby he or she is required [or may elect] to become a member of a public retirement system of this State within the permitted period of time for "rejoining the System," his or her membership, and member service credit, could determined based on his or her membership as of the date of his or her separation. This suggests that absent compelling circumstances, the individual might be better served if he or she were to consider leaving the “employee contributions” with the System.
* The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
NYPPL
Richardson v NYC Employees’ Retirement System, NYS Supreme Court, Justice Gammerman, [Not selected for publication in the Official Reports]
A member of a public retirement system may lose his or her eligibility for significant benefits if he or she decides to withdraw his or her contributions upon leaving public employment. The Richardson decision illustrates this.
Richardson, a New York City corrections officer, joined the New York City Employees’ Retirement System [NYCERS] in 1987. When he resigned from his position on September 29, 1997, Richardson submitted a form to NYCERS asking for a refund of all of the money he contributed to the System. In late November 1997, the System sent him a check for the full amount of his employee contributions -- approximately $19,000.
However, Richardson had also submitted an application for a disability pension to the Medical Division of NYCERS on October 14, 1997. He was found disabled by both the NYCERS Medical Board and an outside health provider after medical examinations. The Medical Division staff was unaware that Richardson had applied for, and received, his membership contributions.
On February 9, 1998, the Medical Division wrote to Richardson indicating that the Medical Board had approved his application and the NYCERS Board of Trustees would consider it. A few days later NYCERS again wrote to Richardson advising him that its February 9, 1998 letter was sent by mistake as he was in fact no longer eligible for disability retirement benefits because in September 1997 he elected to withdraw his employee contributions. Accordingly, said the System, he ceased to be a member of NYCERS and thus was ineligible for disability retirement benefits.
Richardson sued, contending that he was entitled to a disability pension since the Medical Board approved his initial application. He claimed that NYCERS’ determination rejecting his application for disability retirement was arbitrary, capricious and unlawful under both the United States and New York constitutions. He also claimed that had he been notified that the withdrawal of his contributions would disqualify him for disability retirement, he would have returned the money and remained a member of NYCERS.
As to Richardson’s argument concerning the rejection of his application for disability retirement, Justice Gammerman said that Section 517 of the Retirement and Social Security Law specifically provides that: “[u]pon withdrawal of contributions by a member ... membership in the public retirement system involved shall cease.” Justice Gammerman concluded that Richardson’s withdrawal of his contributions terminated his membership with NYCERS and his eligibility for disability benefits.
Justice Gammerman also rejected Richardson’s contention that the System should have warned him of the fact that he would become ineligible for benefits if he withdrew his contributions. He said that:
“there is no affirmative duty for NYCERS administrative staff to inform about the specifics of pension provisions beyond providing written material ... [members are] thus charged with constructive knowledge [of the pension materials]” and that “not inquiring about the status of one’s pension rights is unreasonable.”
The court held that NYCERS’ decision was reasonable and that its refusal to consider Richardson’s application for disability retirement benefits was neither arbitrary nor capricious. It then dismissed Richardson’s petition.
If a member of the New York State Employees’ Retirement [ERS] system leaves government service and does not withdraw his or her employee contributions, he or she continues to be a member of ERS. His or her ERS membership, however, will cease after five years have elapsed since he or she last left government service, or he or she dies or retires, whichever event first occurs [Section 40.f, Retirement and Social Security Law].
====================
John J. Murphy, the NYCERS' Executive Director from 1990 to 2005, e-mailed NYPPL stating that “I assume this member did not have 10 years of credited service. If he did, the refund was given contrary to law. The fact that he was granted a tentative disability, however, leads to the possibility that he may have had 10 years of service. Unless he was disabled due to an accident on the job, he would have had to have been credited with ten years of service to have been granted a disability. The crucial fact is how much service was he credited with when he resigned on Sept 27, 1997. Mr. Murphy further asked: “Did this plaintiff have 10 years of service in Sept, 1997? This supersedes the court decision. NYCERS must correct any error if they find them. If the refund was given after 10 years of credited service, it was invalid and therefore, the disability benefit is in force retroactively to 1997. [Mr. Murphy posts a blog focusing on the New York City Employees’ Retirement System at http://nycers-info-murphy.blogspot.com/ ]
NYPPL comments: Assuming, but not conceding, that Richardson did not have 10 years of member service at the time he withdrew his employee contributions, the Richardson decision demonstrates that in the event a member of a public retirement system withdraws his or her "employee contributions" upon resignation or termination, which he or she may elect to do if otherwise permitted, his or her membership in a New York public retirement system* ceases for the purposes of subsequently claiming eligibility for any benefit otherwise available to a member.
In contrast, were such an individual not to withdraw such employee contributions and he or she is later appointed to a position whereby he or she is required [or may elect] to become a member of a public retirement system of this State within the permitted period of time for "rejoining the System," his or her membership, and member service credit, could determined based on his or her membership as of the date of his or her separation. This suggests that absent compelling circumstances, the individual might be better served if he or she were to consider leaving the “employee contributions” with the System.
* The Optional Retirement Plans, available to certain employees of SUNY, CUNY, the statutory colleges at Cornell and Alfred Universities, the community colleges and the New York State Department of Education, are not public retirement systems of this State within the meaning of Article V, §7 of the State Constitution.
NYPPL
Disability benefits - volunteer firefighters
Disability benefits - volunteer firefighters
Griffo v Onondaga Hill VFD, 256 AD2d 858
Although the Workers’ Compensation Board found that Greg Griffo had sustained a “permanent partial disability” as a result of two back injuries he suffered while serving as a volunteer firefighter, it also determined that Griffo had not “suffered a loss of [his] earning capacity” within the meaning of Section 3.8 of the Volunteer Firefighters’ Benefit Law.
Section 3.8 defines the term “loss of earning capacity” as the volunteer’s inability to perform his or her usual work, or some reasonably alternative employment, as a result of a service-related injury. This definition, the Appellate Division concluded, was the key to resolving Griffo’s appeal from the board’s determination.
According to the ruling, Griffo’s chiropractor authorized his return to work after both accidents. Some time later, the chiropractor imposed lifting and bending restrictions on Griffo because his back condition became exacerbated. According to Griffo, these limitations precluded him from applying for “higher paying and more physically demanding positions.”
However, the Appellate Division said that “the loss of opportunities for advancement is not relevant to whether [Griffo] suffered a loss of earning capacity within the meaning of Section 3.8.
The court noted that the statute simply does not make any provision for any award of benefits based on expected future income due to advancements or promotions. Since the record supported the board’s finding that Griffo “was capable of performing his usual work duties following both accidents,” his claim for benefits was properly rejected by the board.
NYPPL
Griffo v Onondaga Hill VFD, 256 AD2d 858
Although the Workers’ Compensation Board found that Greg Griffo had sustained a “permanent partial disability” as a result of two back injuries he suffered while serving as a volunteer firefighter, it also determined that Griffo had not “suffered a loss of [his] earning capacity” within the meaning of Section 3.8 of the Volunteer Firefighters’ Benefit Law.
Section 3.8 defines the term “loss of earning capacity” as the volunteer’s inability to perform his or her usual work, or some reasonably alternative employment, as a result of a service-related injury. This definition, the Appellate Division concluded, was the key to resolving Griffo’s appeal from the board’s determination.
According to the ruling, Griffo’s chiropractor authorized his return to work after both accidents. Some time later, the chiropractor imposed lifting and bending restrictions on Griffo because his back condition became exacerbated. According to Griffo, these limitations precluded him from applying for “higher paying and more physically demanding positions.”
However, the Appellate Division said that “the loss of opportunities for advancement is not relevant to whether [Griffo] suffered a loss of earning capacity within the meaning of Section 3.8.
The court noted that the statute simply does not make any provision for any award of benefits based on expected future income due to advancements or promotions. Since the record supported the board’s finding that Griffo “was capable of performing his usual work duties following both accidents,” his claim for benefits was properly rejected by the board.
NYPPL
Lunchtime injuries
Lunchtime injuries
Smith v City of Rochester, 255 AD2d 863
Donna Smith, a City of Rochester parking monitor, slipped on a wet floor and fell while leaving a restaurant during an unpaid lunch break. The Workers’ Compensation Board denied Smith’s workers’ compensation claim, finding that she had not sustained an accidental injury in the course of her employment.
The Appellate Division affirmed the board’s determination, holding that “lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.” The court said that the record showed that Smith had discretion as to the time and location of her lunch breaks and the city neither suggested that she eat at that particular restaurant nor derived any benefit from her patronizing that establishment.
NYPPL
Smith v City of Rochester, 255 AD2d 863
Donna Smith, a City of Rochester parking monitor, slipped on a wet floor and fell while leaving a restaurant during an unpaid lunch break. The Workers’ Compensation Board denied Smith’s workers’ compensation claim, finding that she had not sustained an accidental injury in the course of her employment.
The Appellate Division affirmed the board’s determination, holding that “lunchtime injuries are generally deemed to occur outside the scope of employment except under limited circumstances where the employer continues to exercise authority over the employee during the lunch break.” The court said that the record showed that Smith had discretion as to the time and location of her lunch breaks and the city neither suggested that she eat at that particular restaurant nor derived any benefit from her patronizing that establishment.
NYPPL
Nov 29, 2010
Civil Service Law controls in the event positions in the classified service are transferred between a school district and a BOCES
Civil Service Law controls in the event positions in the classified service are transferred between a school district and a BOCES
Matter of Hellner v Board of Educ. of Wilson Cent. School Dist., 2010 NY Slip Op 08472, Decided on November 19, 2010, Appellate Division, Fourth Department
Janet Hellner was employed by the Wilson Central District as an occupational therapist when, as a result of budget considerations, the District abolished her position* and entered into an agreement with BOCES to provide occupational therapy services.
Contending that this action constituted a "transfer of a function," the union said that Civil Service Law §70(2) required that the District certify Hellner’s name to BOCES as the employee to be transferred and that BOCES offer her the position of occupational therapist.
The District and BOCES, on the other hand, contend that Education Law §3014-a and 1950 controlled with respect to Hellner's transfer rights inasmuch as BOCES was to take over the occupational therapy program from the District.
Ultimately the Appellate Division ruled that:
1. The Agreement between the District and BOCES providing for occupational therapy services constituted the "transfer of a function" within the meaning of Civil Service Law §70(2).
2. The theory advanced by both the District and BOCES that Education Law §§3014-a and 1950 “exclusively govern the issue of employee transfer rights” was incorrect in this instance as neither §3014-a nor §1950 provided any transfer rights with respect incumbents of non-teaching positions in the classified service, citing Matter of Vestal Employees Association v Public Employment Relations Board, 94 NY2d 409.
In Vestal the Court of Appeals ruled that a school district employee providing printing services and thus had a non-educational position [in the classified service] was "afforded certain protections upon the transfer of his functions pursuant to Civil Service Law §70(2)."
The Appellate Division ruled that the transfer of occupational therapy services from the District to BOCES “constitutes the transfer of a function within the meaning of Civil Service Law §70(2) and thus Hellner, as the employee whose function was transferred, is afforded certain affirmative rights upon the transfer” of the position.
As to the District’s argument that this action “would violate various administrative provisions applicable to BOCES and the District,” the Appellate Division said that to the extent that such administrative provisions are inconsistent with §70(2), the statute control.
The Appellate Division said that "[A]dministrative regulations are invalid if they conflict with a statute's provisions or are inconsistent with its design and purpose," citing Matter of City of New York v Stone, 11 AD3d 236.
However, court said that the record was insufficient to enable it to determine whether BOCES had sufficient occupational therapy staff at the time of the Agreement and remitted the matter to Supreme Court for further proceedings on the union's petition to determine that issue.
* In the event an appropriate preferred list is certified to an appointing authority to fill a vacancy, the appointing authority must either [1] use the preferred list to fill the vacancy or [2] may elect to keep the position vacant.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08472.htm
For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
NYPPL
Matter of Hellner v Board of Educ. of Wilson Cent. School Dist., 2010 NY Slip Op 08472, Decided on November 19, 2010, Appellate Division, Fourth Department
Janet Hellner was employed by the Wilson Central District as an occupational therapist when, as a result of budget considerations, the District abolished her position* and entered into an agreement with BOCES to provide occupational therapy services.
Contending that this action constituted a "transfer of a function," the union said that Civil Service Law §70(2) required that the District certify Hellner’s name to BOCES as the employee to be transferred and that BOCES offer her the position of occupational therapist.
The District and BOCES, on the other hand, contend that Education Law §3014-a and 1950 controlled with respect to Hellner's transfer rights inasmuch as BOCES was to take over the occupational therapy program from the District.
Ultimately the Appellate Division ruled that:
1. The Agreement between the District and BOCES providing for occupational therapy services constituted the "transfer of a function" within the meaning of Civil Service Law §70(2).
2. The theory advanced by both the District and BOCES that Education Law §§3014-a and 1950 “exclusively govern the issue of employee transfer rights” was incorrect in this instance as neither §3014-a nor §1950 provided any transfer rights with respect incumbents of non-teaching positions in the classified service, citing Matter of Vestal Employees Association v Public Employment Relations Board, 94 NY2d 409.
In Vestal the Court of Appeals ruled that a school district employee providing printing services and thus had a non-educational position [in the classified service] was "afforded certain protections upon the transfer of his functions pursuant to Civil Service Law §70(2)."
The Appellate Division ruled that the transfer of occupational therapy services from the District to BOCES “constitutes the transfer of a function within the meaning of Civil Service Law §70(2) and thus Hellner, as the employee whose function was transferred, is afforded certain affirmative rights upon the transfer” of the position.
As to the District’s argument that this action “would violate various administrative provisions applicable to BOCES and the District,” the Appellate Division said that to the extent that such administrative provisions are inconsistent with §70(2), the statute control.
The Appellate Division said that "[A]dministrative regulations are invalid if they conflict with a statute's provisions or are inconsistent with its design and purpose," citing Matter of City of New York v Stone, 11 AD3d 236.
However, court said that the record was insufficient to enable it to determine whether BOCES had sufficient occupational therapy staff at the time of the Agreement and remitted the matter to Supreme Court for further proceedings on the union's petition to determine that issue.
* In the event an appropriate preferred list is certified to an appointing authority to fill a vacancy, the appointing authority must either [1] use the preferred list to fill the vacancy or [2] may elect to keep the position vacant.
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08472.htm
For information about PELP's e-book Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
NYPPL
Employer must prove that the employee knew, but failed to follow, procedures
Employer must prove that the employee knew, but failed to follow, procedures
NYC Department of Environmental Protection v Segarra, OATH Index No. 2730/10
The New York City Department of Environmental Protection charged Anthony Segarra, a senior sewage treatment worker at a water pollution control plant, with two instances of neglect of duty involving the taking of water samples.
OATH Administrative Law Judge Alessandra F. Zorgniotti found that the Department failed to prove that Segarra knew about the procedures at issue.
Accordingly, Judge Zorgniotti recommended that the charges that the Department had filed against Segarra be dismissed.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2730.pdf
NYPPL
NYC Department of Environmental Protection v Segarra, OATH Index No. 2730/10
The New York City Department of Environmental Protection charged Anthony Segarra, a senior sewage treatment worker at a water pollution control plant, with two instances of neglect of duty involving the taking of water samples.
OATH Administrative Law Judge Alessandra F. Zorgniotti found that the Department failed to prove that Segarra knew about the procedures at issue.
Accordingly, Judge Zorgniotti recommended that the charges that the Department had filed against Segarra be dismissed.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2730.pdf
NYPPL
Class actions challenging administrative decisions
Class actions challenging administrative decisions
Holcomb v Westchester County, 255 AD2d 383
“Class action” relief is rare in the public sector because courts have traditionally viewed expanding the “plaintiff class” to all members of a certain group unnecessary due to the legal principle called stare decisis (to abide by past decisions).
Stare decisis is the judicial doctrine that once a court has laid down a principle of law applicable to a certain set of facts, that principle will be applied in future cases involving the same facts. For example, if a public employee wins the right to overtime as a result of a court’s interpretation the Civil Service Law, all similar situated public employees would have an identical right to overtime under stare decisis.*
However, there can be exceptions to this general rule about the inappropriateness of class actions by public employees. The Appellate Division’s consolidated decision in Holcomb and Hetherington cases illustrate such an exception.
Michael Holcomb and Helen E. Hetherington sued Westchester County, contending that their positions were improperly abolished by the county. They argued that because the County Board of Legislators had not amended the county’s budget to reflect the abolishment of their positions, their positions could not be abolished by “administrative action” taken by the County Executive.**
Holcomb and Hetherington also asked for “class certification” in order to include some 300 other Westchester County employees whom they claimed had also been unlawfully terminated when their positions were abolished by “administrative action.” A state Supreme Court justice granted their motion for class certification, and the county appealed.
The county argued that class certification was unnecessary under stare decisis; the final determination in a court proceeding involving a governmental operation would be controlling in future litigation involving the same issue.
The Appellate Division disagreed with county and upheld the Supreme Court’s determination. The Appellate panel said the Supreme Court did not abuse its discretion because consolidating claims into a class action was a less cumbersome way for the courts to handle these claims as the 300 potential litigants were only seeking “relative small sums of damages” and were clearly part of a “large, readily definable class.”
Further, court observed that the central issue -- whether the county legislature’s failure to amend the budget meant that positions were improperly abolished -- was appropriate for class-based consideration.
* Typically the doctrine of stare decisis is not applied in arbitrations. For example, City School District of Tonawanda v Tonawanda Education Association, 63 NY2d 846, involved a situation in which the same facts considered by two different arbitrators but involving two different employees produced different results. The school district had made layoff decisions that adversely impacted on two employees. Both individuals grieved. The grievances were considered by two different arbitrators. The first arbitration decision handed down ruled in favor of the employer while in the second case, heard by a different arbitrator and handed down after the first arbitrator had made a ruling, the employee prevailed. The school district claimed that the first arbitrator's decision should be adopted by the second arbitrator since the same facts were involved and thus the second arbitrator was bound by the first arbitrator's findings. The Court of Appeals rejected Tonawanda's theory, holding that both arbitration decisions were to stand.
N.B. Would Tonawanda have been disposed to argue that the second arbitrator was bound by the first arbitrator's award had it gone the other way? It is prudent to consider the future impact of an instant position under alternate circumstances in such situations.
** Holcomb and Hetherington appear to be arguing that the Doctrine of Legislative Equivalency, i.e., “a position created by a legislative act can only be abolished by a correlative legislative act,” controls in this action [see Matter of Torre v County of Nassau, 86 NY2d 421].
NYPPL
Holcomb v Westchester County, 255 AD2d 383
“Class action” relief is rare in the public sector because courts have traditionally viewed expanding the “plaintiff class” to all members of a certain group unnecessary due to the legal principle called stare decisis (to abide by past decisions).
Stare decisis is the judicial doctrine that once a court has laid down a principle of law applicable to a certain set of facts, that principle will be applied in future cases involving the same facts. For example, if a public employee wins the right to overtime as a result of a court’s interpretation the Civil Service Law, all similar situated public employees would have an identical right to overtime under stare decisis.*
However, there can be exceptions to this general rule about the inappropriateness of class actions by public employees. The Appellate Division’s consolidated decision in Holcomb and Hetherington cases illustrate such an exception.
Michael Holcomb and Helen E. Hetherington sued Westchester County, contending that their positions were improperly abolished by the county. They argued that because the County Board of Legislators had not amended the county’s budget to reflect the abolishment of their positions, their positions could not be abolished by “administrative action” taken by the County Executive.**
Holcomb and Hetherington also asked for “class certification” in order to include some 300 other Westchester County employees whom they claimed had also been unlawfully terminated when their positions were abolished by “administrative action.” A state Supreme Court justice granted their motion for class certification, and the county appealed.
The county argued that class certification was unnecessary under stare decisis; the final determination in a court proceeding involving a governmental operation would be controlling in future litigation involving the same issue.
The Appellate Division disagreed with county and upheld the Supreme Court’s determination. The Appellate panel said the Supreme Court did not abuse its discretion because consolidating claims into a class action was a less cumbersome way for the courts to handle these claims as the 300 potential litigants were only seeking “relative small sums of damages” and were clearly part of a “large, readily definable class.”
Further, court observed that the central issue -- whether the county legislature’s failure to amend the budget meant that positions were improperly abolished -- was appropriate for class-based consideration.
* Typically the doctrine of stare decisis is not applied in arbitrations. For example, City School District of Tonawanda v Tonawanda Education Association, 63 NY2d 846, involved a situation in which the same facts considered by two different arbitrators but involving two different employees produced different results. The school district had made layoff decisions that adversely impacted on two employees. Both individuals grieved. The grievances were considered by two different arbitrators. The first arbitration decision handed down ruled in favor of the employer while in the second case, heard by a different arbitrator and handed down after the first arbitrator had made a ruling, the employee prevailed. The school district claimed that the first arbitrator's decision should be adopted by the second arbitrator since the same facts were involved and thus the second arbitrator was bound by the first arbitrator's findings. The Court of Appeals rejected Tonawanda's theory, holding that both arbitration decisions were to stand.
N.B. Would Tonawanda have been disposed to argue that the second arbitrator was bound by the first arbitrator's award had it gone the other way? It is prudent to consider the future impact of an instant position under alternate circumstances in such situations.
** Holcomb and Hetherington appear to be arguing that the Doctrine of Legislative Equivalency, i.e., “a position created by a legislative act can only be abolished by a correlative legislative act,” controls in this action [see Matter of Torre v County of Nassau, 86 NY2d 421].
NYPPL
Discontinuing workers’ compensation benefits
Discontinuing workers’ compensation benefits
Waters v City of New York, 256 AD2d 680
Sometimes an individual who is receiving workers’ compensation benefits will seek damages from a third party alleged to have caused his or her injury while on the job.
However, an “unauthorized settlement” could jeopardize an employer’s right to recoup benefit payments for which it is, or may become, liable. Therefore, the employer or its insurer must consent to any third party settlement. The failure of the employee to obtain this consent generally results in his or her workers’ compensation benefits being discontinued. However, there may be exceptions to this general rule, as the Waters case demonstrates.
Mary Waters was injured in an automobile accident in the course of her employment. She applied for, and was granted, workers’ compensation benefits based on a finding that she had suffered “a 10% schedule loss of the use of her left leg.”
Waters subsequently “commenced a third party action” against the owner/driver of the automobile and obtained a $5,000 settlement. However, because Waters had not obtained the city’s consent [New York City self-insures itself for workers’ compensation] the Workers’ Compensation Board affirmed the discontinuation of her “scheduled loss award.”
The Appellate Division was troubled by this result, however, commenting that in deciding a nearly identical case, the board had applied an exception to this rule.
In UHS Home Attendants, WCB 08916873, the board held that a claimant who was granted a scheduled award of 30% permanent loss of the use of her left leg “was not precluded from continuing to receive benefits even though she failed to obtain the consent of [UHS Home Attendants’] compensation insurance carrier to her settlement of her third-party action in which she had received $6,010.”
The court ruled that “given the factual similarities in the current case” to those present in the UHS Home case, it was incumbent on the board to either (1) follow the precedent established by its decision in UHS Home Attendants or “provide an explanation for its failure to do so.” Accordingly, the Appellate Division remanded [returned] the case to the board for its further consideration.
NYPPL
Waters v City of New York, 256 AD2d 680
Sometimes an individual who is receiving workers’ compensation benefits will seek damages from a third party alleged to have caused his or her injury while on the job.
However, an “unauthorized settlement” could jeopardize an employer’s right to recoup benefit payments for which it is, or may become, liable. Therefore, the employer or its insurer must consent to any third party settlement. The failure of the employee to obtain this consent generally results in his or her workers’ compensation benefits being discontinued. However, there may be exceptions to this general rule, as the Waters case demonstrates.
Mary Waters was injured in an automobile accident in the course of her employment. She applied for, and was granted, workers’ compensation benefits based on a finding that she had suffered “a 10% schedule loss of the use of her left leg.”
Waters subsequently “commenced a third party action” against the owner/driver of the automobile and obtained a $5,000 settlement. However, because Waters had not obtained the city’s consent [New York City self-insures itself for workers’ compensation] the Workers’ Compensation Board affirmed the discontinuation of her “scheduled loss award.”
The Appellate Division was troubled by this result, however, commenting that in deciding a nearly identical case, the board had applied an exception to this rule.
In UHS Home Attendants, WCB 08916873, the board held that a claimant who was granted a scheduled award of 30% permanent loss of the use of her left leg “was not precluded from continuing to receive benefits even though she failed to obtain the consent of [UHS Home Attendants’] compensation insurance carrier to her settlement of her third-party action in which she had received $6,010.”
The court ruled that “given the factual similarities in the current case” to those present in the UHS Home case, it was incumbent on the board to either (1) follow the precedent established by its decision in UHS Home Attendants or “provide an explanation for its failure to do so.” Accordingly, the Appellate Division remanded [returned] the case to the board for its further consideration.
NYPPL
Two-year suspension without pay imposed on teacher found guilty of “immoral conduct”
Two-year suspension without pay imposed on teacher found guilty of “immoral conduct”
Decisions of the Commissioner of Education 14025
New York City School teacher Norman P. Kaminowitz was found guilty of charges that he had sexually abused students, having “engaged in a continuing pattern of making inappropriate remarks, and otherwise engaged in immoral conduct.”
Kaminowitz, among other things, was alleged to have sat next to a student and rubbed her leg with his “in a suggestive manner” and touched a student with his hand “at or near her genital area.”
Concluding that Kaminowitz’s conduct constituted “neglect of duty, incapacity to teach and immoral conduct,” the hearing panel unanimously recommended that he be suspended for two years without pay. The City Board of Education appealed, asking the Commissioner to substitute his judgment for that to the panel with respect to the penalty imposed and authorize it to dismiss Kaminowitz.
Kaminowitz also appealed, asking the Commissioner to overturn the panel’s determination on the grounds that the evidence at the hearing did not support such a finding. In the alternative, Kaminowitz asked the Commissioner to reduce the penalty imposed on the grounds that it was “disproportionate to the offense.”
The Commissioner said that Kaminowitz’s conduct “is disgraceful and cannot be condoned.” He declined, however, to change the penalty imposed by the panel “based on the record as a whole.”
Among the factors cited by the Commissioner in support of his determinations were the following:
(a) [T]he only “blemish” in Kaminowitz’s 25-year teaching career prior to these incidents “appears to be the warning given to him by his building principal ten years before” and no charges were filed at that time; and
(b) [T]here were no indications of any other warnings by his current supervisors, or any history of complaints in the record.
The Commissioner said that a two-year suspension without pay was proportionate to the offense and “sufficient to impress upon [Kaminowitz] that the behavior for which he was found guilty is completely unacceptable and must not be repeated.
NYPPL
Decisions of the Commissioner of Education 14025
New York City School teacher Norman P. Kaminowitz was found guilty of charges that he had sexually abused students, having “engaged in a continuing pattern of making inappropriate remarks, and otherwise engaged in immoral conduct.”
Kaminowitz, among other things, was alleged to have sat next to a student and rubbed her leg with his “in a suggestive manner” and touched a student with his hand “at or near her genital area.”
Concluding that Kaminowitz’s conduct constituted “neglect of duty, incapacity to teach and immoral conduct,” the hearing panel unanimously recommended that he be suspended for two years without pay. The City Board of Education appealed, asking the Commissioner to substitute his judgment for that to the panel with respect to the penalty imposed and authorize it to dismiss Kaminowitz.
Kaminowitz also appealed, asking the Commissioner to overturn the panel’s determination on the grounds that the evidence at the hearing did not support such a finding. In the alternative, Kaminowitz asked the Commissioner to reduce the penalty imposed on the grounds that it was “disproportionate to the offense.”
The Commissioner said that Kaminowitz’s conduct “is disgraceful and cannot be condoned.” He declined, however, to change the penalty imposed by the panel “based on the record as a whole.”
Among the factors cited by the Commissioner in support of his determinations were the following:
(a) [T]he only “blemish” in Kaminowitz’s 25-year teaching career prior to these incidents “appears to be the warning given to him by his building principal ten years before” and no charges were filed at that time; and
(b) [T]here were no indications of any other warnings by his current supervisors, or any history of complaints in the record.
The Commissioner said that a two-year suspension without pay was proportionate to the offense and “sufficient to impress upon [Kaminowitz] that the behavior for which he was found guilty is completely unacceptable and must not be repeated.
NYPPL
Nov 26, 2010
Social Media - its use by employers in pre-employment, employment and post-employment situations
Social Media - its use by employers in pre-employment, employment and post-employment situations
Source: Article by Eileen Morgan Johnson, Esq. of Whiteford, Taylor Preston [emjohnson@wtplaw.com ]. Copyright 2010 Eileen Morgan Johnson, All rights reserved.
Part I - Social Media and Pre-employment Situations
Part II - Social Media and the Workplace
.
Part I
The use of social media in pre-employment situations
Pre-employment screening
Employers are taking advantage of the free information on social media websites and communication tools to screen applicants or to perform pre-offer due diligence on successful applicants. It's not just people in their 20's and 30's who have online profiles and the use of social media by human resource professionals is not a passing fad.
There are a variety of resources that can be consulted such as LinkedIn®, MySpace™ and Facebook. Users of these three sites create an individual profile that can include information about their work history, extracurricular activities, and contacts. Other sites such as Twitter™ and YouTube can also yield information on applicants that might be valuable in making a decision to extend or withhold an offer of employment. For those employers who are unsure about using social media sites, a simple search using Google™ or some other search engine can also yield potentially interesting information.
What are employers looking for? Social media profiles can provide a lot of valuable information. While an employer should not rely solely on these sites to verify information on employment applications, they can be used to discredit applicants or to provide another view of the person behind the resume or online application. Online profiles can provide information on the person's:
Professional credentials
Career objectivesMaturity and judgment
Abuse of drugs or alcohol
Current employment status
Red flags
A June 2009 CareerBuilder survey of 2,600 hiring managers found that 45% of them use social media in the hiring process. That was double the number of hiring managers that reported such use in 2008. What's more, 11% planned to start using social media for prescreening. Eighteen percent or almost one in five hiring managers surveyed reported finding information online that encouraged them to hire candidates:
Profile - good feel for personality and "fit"- 50%
Profile supported professional qualifications - 39%
Candidate was creative - 38%
Solid communication skills - 35%
Candidate well rounded - 33%
Good references posted by others - 19%
Candidate received awards - 15%
However, twice as many (35%) hiring managers reported finding information that led them to not hire a candidate, including:
Inappropriate photos or postings
- 53%Postings on drinking or drug use
- 44%Bad-mouthing previous employer, co-workers or clients
- 35%Poor communication skills
- 29%Discriminatory comments
- 26%Lied about qualifications
- 24%Shared confidential information from previous employer - 20%
Potential pitfalls of screening
Screening with social media has some drawbacks. It can provide too much information about job applicants, including some information that cannot be considered in the employment decision. Some online content can be questionable in terms of its origin or truthfulness. Moreover, some employers are concerned about invading applicants' privacy.
Too much informationCertain information that can be found in an applicant's online profile cannot be used as the basis for an employment decision. These include information on the applicant's race, religion, national origin, age, pregnancy status, marital status, disability, sexual orientation (some state and local jurisdictions), gender expression or identity (some state and local jurisdictions) and genetic information. While it is best to avoid obtaining or even seeing this information, it is often prominently displayed on social networking profiles.
A potential solution is to assign one person to review the social media sites who is not part of the decision making process. That person should filter out any information regarding membership in a protected class and only pass on information that may be considered in the hiring process. The most fundamental way to protect against discrimination claims in using information gleaned from social media sites in the employment decision process is consistency. Employers should keep records of information reviewed and used in any employment decision.
Quality of information
Online information is not always reliable. The first rule is to make sure that the person whose profile you are viewing is actually your job applicant. It is not unusual for people to have similar names or even the same name. If you have confirmed the identity of the applicant, keep in mind that there is a possibility that not all of the information in the profile is correct. Profile information might have been deliberately falsified by the applicant or a friend or significant other with access to the profile login information.
Employers should also recognize that any site provides a limited picture of the individual. Remember the intended audience. On sites like LinkedIn, the intended audience is other professionals. However, on Facebook and MySpace, profiles are often developed for close friends and family. And some people enjoy creating a new persona for their online life, one that has no relationship to who they are in real life.
Invasion of privacy
Employers have little risk that viewing applicants' profiles, blogs or other online postings will give rise to invasion of privacy claims. Users of social networking sites usually have the option to set privacy settings on their personal pages. Their personal pages can be available to any user of the network, or can be restricted to only individuals authorized by the user. A critical question to ask in evaluating an invasion of privacy claim is whether there was a reasonable expectation of privacy. To avoid the potential for liability, employers should avoid attempts at circumventing the privacy settings put in place by users. Only view information that is readily accessible and intended for public viewing.
Google™ and other search engines
In a recent Monster.com report, 77% of employers surveyed reported performing a "Google" search on job applicants. Google is popular for the amount of information that can be discovered and the ease of use. In addition to the concern noted above that a Google search might return too much information, there are additional concerns about the quality of the information retrieved. The breadth of information that a Google search can produce has its own drawbacks including difficulty in identifying sources of search results.
As of now, employers are unlikely to incur liability based on Google searches of job applicants. To further protect against liability, employers should be consistent in their search practices, recognize the limits of online searches, and be sure the information they find actually relates to their applicants.
Current law on reviewing social media sites
There are no court decisions yet imposing liability for an employer's review of a social networking site in the pre-employment context. This is not a guarantee that such liability will not be imposed in the future. For now, the potential for liability is minimal in the absence of misconduct or discrimination by the employer. The potential for liability can be further reduced by:
- Being consistent in prescreening all applicants for certain positions or only those already selected for interviews
- Having someone other than the decision maker filter out protected class information if possible
- Keeping records of the basis for each employment decision
- Not circumventing privacy settings established on applicants' networking sites
If employers have any questions about whether information found through pre-employment screening should be used in the decision making process, they should consult employment counsel before using that information.
Part II - Social Media in the Workplace
The use of social media in employment and post-employment situations.
Social media is changing communications between employers and employees and among co-workers.
Employee communications
The employee newsletter is out and the company Facebook group is in. Employees of the 21st century want a different relationship with their employer and co-workers than that of prior generations. They are used to receiving information that is current and relevant to them, and they expect the same ability to preselect and customize the information they receive in the workplace. Employees want to be able to ask questions and provide feedback to management. With more employees teleworking or working from multiple locations, they want the ability to communicate with their co-workers. Today's workers like to create their own news in their personal lives and share it with others electronically, and they expect to be able to do the same with their work lives.
The International Association of Business Communicators Research Foundation & Bucks Consultants surveyed 1,500 employers in June 2009. An astonishing 97% of the employers said that they frequently use social media to communicate with their employees. Of these, 19% reported occasional use, with only 1% reporting that they used social media rarely or never. Whether by company emails, an intranet website, Facebook group or other tools, clearly social media have become critical to employer/employee communications.
Social media usage policies
Just as employers adopted Internet and computer use policies in the 1990's, now they are developing social media usage policies. These policies can be part of the company's electronic communications usage policy or a stand-alone policy. The key to an effective social media usage policy is frequent adaptation to new technologies and programs, new legal requirements related to both technology and the workplace, and communication with employees.
Distractions and productivity
Employers worry about lost employee productivity due to the distractions of social media in the workplace. The temptations to communicate with their friends and family members are everywhere. Text messaging, cell phones and instant messaging provide near instantaneous dialogue which can be more interesting than the daily work assignments.
Twitter feeds and other alerts are used to notify blog followers when a new posting has been added. Younger workers are used to multitasking. They made their way through high school and college with laptops, iPods, and cell phones, and can write a paper, text a friend, and download music simultaneously while watching television and talking with friends. They want their work lives to function the same way their personal lives do with constant stimulation and communication.
Do employers have the right to force their employees to focus on the task at hand and not use social media while at work? The courts are still working that issue out, but at least one federal court has suggested that employers might have the right to prevent employees from accessing blogs while at work. Nickolas v. Fletcher, 2007 U.S. Dist. Lexis 23843 (E.D. Ky. 2007).
Monitoring
An employer might want to monitor its employees' online conduct while at work. The argument goes something like this: "The employee is on my time, in my facility, and using my computer equipment. Why shouldn't I be able to monitor what's going on?"
Any monitoring should be done with care. In Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), a Newark jury found that the employer violated the federal Stored Communications Act by secretly monitoring employees' postings on a private password-protected Internet chat room. This followed an earlier case, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), where the court also held that secret monitoring by an employer of a password protected website visited by an employee while at work violated the federal Stored Communications Act.
However, earlier this year, the U.S. Supreme Court unanimously held that a public employer's review of an employee's text messages on an employer-issued device was a reasonable search under the Fourth Amendment. City of Ontario v. Quon, No. 08-1332, 560 U.S. ___ (2010). This case involved the use of a pager issued to the employee by the employer. The employer authorized a set number of text messages per month and allowed employees to pay for any overage. Employees were not prohibited from using the pager to send and receive personal text messages. The employer noticed that one employee had an excessive number of text messages and asked its service provider for copies of the text messages from that employee's phone. It found messages to the employee's wife and girlfriend. The employee claimed that his privacy had been violated. The lower court had held that the service provider violated the Stored Communications Act when it provided the employee's text messages to the employer. The Supreme Court reversed, holding that the employer had a right to see text messages sent and received on the employer's pager. While this case involved a public employer (and courts have typically allowed greater employer control of public employees), the court clearly stated that employees do not have an expectation of privacy when using equipment provided by the employer.
Other Worries
Employers have more serious potential issues than lost productivity to worry about. Social media tools present an easy method of accessing and communicating information. This can include the unauthorized disclosure of confidential information. While the concerns about unauthorized disclosure using social media tools are similar to unauthorized disclosure in more traditional ways, now the disclosure is at the click of a mouse to multiple recipients. Unauthorized disclosure can include the business plans and information of clients as well as those of the employer.
Unfortunately, social media tools can also be used to harass co-workers. What might be a harmless exchange of jokes or photos between friends can take on a new life when they are spread around the office. The seemingly innocent friend request on Facebook from a co-worker can take on new meaning. How does a female employee respond to a "friend" request from her male supervisor?
The technology behind social media presents another new challenge to employers, the inability to effectively respond to misinformation. A fleeting complaint lingers forever and can be accessed or rebroadcast by other employees or those outside of the company. Information remains in cyberspace indefinitely. The employer's response to misinformation or even a later retraction by the defaming party is unlikely to reach all who received the initial communication. Any communication issued by an employee is seemingly valid, even when the employee is a self-appointed company "spokesperson."
Employers might consider charging employees who misuse social media at the workplace with using company equipment inappropriately and follow appropriate disciplinary measures. The social media usage policy should provide for discipline for abuse of the policy and explicitly state that social media may not be used to violate other employer policies, including harassment and non-discrimination policies.
Internal investigations
In a June 2009 survey, Proofpoint asked US employers to report on internal investigations at their companies in the past 12 months. The results of the survey show that employers do have a reason to be concerned about leaks of confidential or proprietary information. Employers reported conducting investigations of leaks by:
Email - 43%
Blog or message board - 18%
Video - 18%Facebook and
LinkedIn - 17%Twitter or SMS texts - 13%
The same employers also reported on the results of their investigations, with a substantial number finding violations of company policies. The rates of employees disciplined or terminated for policy violations were:
Email - 31% terminated
Blog or message board - 17% disciplined, 9% terminated
Video - 15% disciplined, 8% terminated
Social networks - 8% terminated
Twitter/SMS texts - no reported actions
Employer responses
Employers can take a number of measures to reduce the problems that can arise from the use or misuse of social media. As a first step, employers should remind their employees that they have no expectation of privacy when using the employer's electronic equipment or network. This includes employer supplied smart phones, voice mail, and email. Next, employers should review and update as necessary their Internet usage policies to include the use of social media and clearly state what employee actions will result in discipline or even termination.
To address the potential misuse of social media, a social media usage policy should prohibit the use of the employer's name by employees outside of official company communications. The policy also should discipline employees for posting any negative statements about the employer or any derogatory comments about the employee's co-workers or supervisors.
Whether it is two pizza parlor employees abusing food for their YouTube video or anonymous misstatements on a blog about a company's products or services, an employer's reputation can be easily and speedily damaged through the misuse of social media tools. Postings favoring the employer's competitors or slamming its customers, or, in the case of associations, its members, can also be detrimental and the intentional disclosure of confidential employer information can be devastating.
Employer social media policies should prohibit:Disclosure of confidential employer information
Discrimination against or harassment of co-workersUsing the employer's trademarks Infringing the intellectual property rights of othersMaking statements adverse to the employer's business interests or reputationCriticism of customers or business partnersStatements supporting competitorsObscenity
Legal limitations
Multijurisdictional employers may face inconsistent laws when trying to establish uniform policies for their employees. Some states prohibit an employer from acting with respect to employee activity that is not related to the employer or is not on working time. In addition, there are laws that protect concerted activity by employees - the protected right of employees to discuss common issues related to the workplace (these are the laws protecting labor unions). There are also laws that protect complaints related to the violation of workplace laws such as state and federal whistleblower laws. However, employees do not have a right to engage in activity injurious to the employer that does not fall within these limited exceptions. Employers should consult with counsel before establishing policies or taking steps to address the misuse of social media by their employees.
Off- duty conduct
Employers can tread over the line when they attempt to discipline employees for their off-duty conduct. Many states have off-duty conduct laws that prohibit employers from basing employment decisions on legal activities of employees outside of work time. Employers need to be aware of the state laws applicable to each of the jurisdictions where their employees are located to avoid violating these laws.
Postings complaining about the employee's work, the employer, supervisors, or co-workers or postings critical of the employer's product or service can be grounds for disciplinary action up to and including termination. For example, a teacher who was fired for an inappropriate MySpace page sued the employer and lost in Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008). Even when the conduct does not rise to the level of disciplinary action, it can cause the employer to question the employee's maturity or judgment.
Post-employment
Former employees who left on their own or maintain a positive relationship with their former employer, supervisor and co-workers rarely raise concerns about the potential for harm to the employer through their online activities. However, the disgruntled former employee is a different story. Just as they are not concerned about the bridges they burn, these employees are not worried about the potential consequences of the statements they publish online or their tweets about their former employer, supervisor and even co-workers. The potential for a defamation claim against the former employee can be great. Alas, the opportunity to collect damages is not great.
Some employers have a real concern that confidential information will be released by disgruntled former employees. Requiring employees with access to confidential information, as a condition of employment, to sign a confidentiality and nondisclosure agreement which remains in effect following the termination of the employment relationship is one way to address this potential problem.
Social media non-compete
Employers who sanction employee blogs, Facebook groups, Twitter accounts, and other means of communicating through social media often do not think through the consequences of setting up these accounts with one employee as the face of the company.
What happens when the employee who has been regularly posting blogs on behalf of the company decides to leave? Who owns the profile? Who owns the content? More importantly, who owns the followers? Even if the now former employee does not object to the employer taking over his blog, what if the employer does not have the login name and password?
To address these issues, savvy employers are having their employees sign social media non-competition agreements. Under these social media non-competes, the profile, content and followers of a blog or other communication tool belong to the employer. These agreements are more akin to a non-solicitation agreement than a traditional non-compete.
They are difficult (if not impossible) to enforce but they clearly define the intent of the parties if the employer sees litigation (or alternative dispute resolution) as a necessary step to protect its brand or marketing position.
Conclusion
The now widespread use of social media in and outside of the workplace is not the end of the world as we know it. True, the situations employers can face are different, and small problems can very quickly magnify and multiply. But the sensible employer will respond appropriately, working with its employees to identify appropriate social media usage policies and exploiting the communication benefits that social media can bring to the workplace of the 21st century.
Eileen Morgan JohnsonCounselWhiteford, Taylor & Preston, L.L.P.3190 Fairview Park Drive, Suite 300 Falls Church, VA 22042t: 703-280-9271 f: 703-280-8947 m: 202-615-0894 emjohnson@wtplaw.com Bio vCard http://www.wtplaw.com/
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===========================
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N.B. A relevant item, NY Ethics Committees Tackle Social Media Mining has been posted on Nicole Black's Law Blog Sui Generis--a New York law blog . It addresses the issue of the ethics of attorneys using social media and cites the New York City Bar’s opinion (Formal Opinion 2010-2) Ms. Black can be reached at nblack@nicoleblackesq.com .
NYPPL
Source: Article by Eileen Morgan Johnson, Esq. of Whiteford, Taylor Preston [emjohnson@wtplaw.com ]. Copyright 2010 Eileen Morgan Johnson, All rights reserved.
Part I - Social Media and Pre-employment Situations
Part II - Social Media and the Workplace
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Part I
The use of social media in pre-employment situations
Pre-employment screening
Employers are taking advantage of the free information on social media websites and communication tools to screen applicants or to perform pre-offer due diligence on successful applicants. It's not just people in their 20's and 30's who have online profiles and the use of social media by human resource professionals is not a passing fad.
There are a variety of resources that can be consulted such as LinkedIn®, MySpace™ and Facebook. Users of these three sites create an individual profile that can include information about their work history, extracurricular activities, and contacts. Other sites such as Twitter™ and YouTube can also yield information on applicants that might be valuable in making a decision to extend or withhold an offer of employment. For those employers who are unsure about using social media sites, a simple search using Google™ or some other search engine can also yield potentially interesting information.
What are employers looking for? Social media profiles can provide a lot of valuable information. While an employer should not rely solely on these sites to verify information on employment applications, they can be used to discredit applicants or to provide another view of the person behind the resume or online application. Online profiles can provide information on the person's:
Professional credentials
Career objectivesMaturity and judgment
Abuse of drugs or alcohol
Current employment status
Red flags
A June 2009 CareerBuilder survey of 2,600 hiring managers found that 45% of them use social media in the hiring process. That was double the number of hiring managers that reported such use in 2008. What's more, 11% planned to start using social media for prescreening. Eighteen percent or almost one in five hiring managers surveyed reported finding information online that encouraged them to hire candidates:
Profile - good feel for personality and "fit"- 50%
Profile supported professional qualifications - 39%
Candidate was creative - 38%
Solid communication skills - 35%
Candidate well rounded - 33%
Good references posted by others - 19%
Candidate received awards - 15%
However, twice as many (35%) hiring managers reported finding information that led them to not hire a candidate, including:
Inappropriate photos or postings
- 53%Postings on drinking or drug use
- 44%Bad-mouthing previous employer, co-workers or clients
- 35%Poor communication skills
- 29%Discriminatory comments
- 26%Lied about qualifications
- 24%Shared confidential information from previous employer - 20%
Potential pitfalls of screening
Screening with social media has some drawbacks. It can provide too much information about job applicants, including some information that cannot be considered in the employment decision. Some online content can be questionable in terms of its origin or truthfulness. Moreover, some employers are concerned about invading applicants' privacy.
Too much informationCertain information that can be found in an applicant's online profile cannot be used as the basis for an employment decision. These include information on the applicant's race, religion, national origin, age, pregnancy status, marital status, disability, sexual orientation (some state and local jurisdictions), gender expression or identity (some state and local jurisdictions) and genetic information. While it is best to avoid obtaining or even seeing this information, it is often prominently displayed on social networking profiles.
A potential solution is to assign one person to review the social media sites who is not part of the decision making process. That person should filter out any information regarding membership in a protected class and only pass on information that may be considered in the hiring process. The most fundamental way to protect against discrimination claims in using information gleaned from social media sites in the employment decision process is consistency. Employers should keep records of information reviewed and used in any employment decision.
Quality of information
Online information is not always reliable. The first rule is to make sure that the person whose profile you are viewing is actually your job applicant. It is not unusual for people to have similar names or even the same name. If you have confirmed the identity of the applicant, keep in mind that there is a possibility that not all of the information in the profile is correct. Profile information might have been deliberately falsified by the applicant or a friend or significant other with access to the profile login information.
Employers should also recognize that any site provides a limited picture of the individual. Remember the intended audience. On sites like LinkedIn, the intended audience is other professionals. However, on Facebook and MySpace, profiles are often developed for close friends and family. And some people enjoy creating a new persona for their online life, one that has no relationship to who they are in real life.
Invasion of privacy
Employers have little risk that viewing applicants' profiles, blogs or other online postings will give rise to invasion of privacy claims. Users of social networking sites usually have the option to set privacy settings on their personal pages. Their personal pages can be available to any user of the network, or can be restricted to only individuals authorized by the user. A critical question to ask in evaluating an invasion of privacy claim is whether there was a reasonable expectation of privacy. To avoid the potential for liability, employers should avoid attempts at circumventing the privacy settings put in place by users. Only view information that is readily accessible and intended for public viewing.
Google™ and other search engines
In a recent Monster.com report, 77% of employers surveyed reported performing a "Google" search on job applicants. Google is popular for the amount of information that can be discovered and the ease of use. In addition to the concern noted above that a Google search might return too much information, there are additional concerns about the quality of the information retrieved. The breadth of information that a Google search can produce has its own drawbacks including difficulty in identifying sources of search results.
As of now, employers are unlikely to incur liability based on Google searches of job applicants. To further protect against liability, employers should be consistent in their search practices, recognize the limits of online searches, and be sure the information they find actually relates to their applicants.
Current law on reviewing social media sites
There are no court decisions yet imposing liability for an employer's review of a social networking site in the pre-employment context. This is not a guarantee that such liability will not be imposed in the future. For now, the potential for liability is minimal in the absence of misconduct or discrimination by the employer. The potential for liability can be further reduced by:
- Being consistent in prescreening all applicants for certain positions or only those already selected for interviews
- Having someone other than the decision maker filter out protected class information if possible
- Keeping records of the basis for each employment decision
- Not circumventing privacy settings established on applicants' networking sites
If employers have any questions about whether information found through pre-employment screening should be used in the decision making process, they should consult employment counsel before using that information.
Part II - Social Media in the Workplace
The use of social media in employment and post-employment situations.
Social media is changing communications between employers and employees and among co-workers.
Employee communications
The employee newsletter is out and the company Facebook group is in. Employees of the 21st century want a different relationship with their employer and co-workers than that of prior generations. They are used to receiving information that is current and relevant to them, and they expect the same ability to preselect and customize the information they receive in the workplace. Employees want to be able to ask questions and provide feedback to management. With more employees teleworking or working from multiple locations, they want the ability to communicate with their co-workers. Today's workers like to create their own news in their personal lives and share it with others electronically, and they expect to be able to do the same with their work lives.
The International Association of Business Communicators Research Foundation & Bucks Consultants surveyed 1,500 employers in June 2009. An astonishing 97% of the employers said that they frequently use social media to communicate with their employees. Of these, 19% reported occasional use, with only 1% reporting that they used social media rarely or never. Whether by company emails, an intranet website, Facebook group or other tools, clearly social media have become critical to employer/employee communications.
Social media usage policies
Just as employers adopted Internet and computer use policies in the 1990's, now they are developing social media usage policies. These policies can be part of the company's electronic communications usage policy or a stand-alone policy. The key to an effective social media usage policy is frequent adaptation to new technologies and programs, new legal requirements related to both technology and the workplace, and communication with employees.
Distractions and productivity
Employers worry about lost employee productivity due to the distractions of social media in the workplace. The temptations to communicate with their friends and family members are everywhere. Text messaging, cell phones and instant messaging provide near instantaneous dialogue which can be more interesting than the daily work assignments.
Twitter feeds and other alerts are used to notify blog followers when a new posting has been added. Younger workers are used to multitasking. They made their way through high school and college with laptops, iPods, and cell phones, and can write a paper, text a friend, and download music simultaneously while watching television and talking with friends. They want their work lives to function the same way their personal lives do with constant stimulation and communication.
Do employers have the right to force their employees to focus on the task at hand and not use social media while at work? The courts are still working that issue out, but at least one federal court has suggested that employers might have the right to prevent employees from accessing blogs while at work. Nickolas v. Fletcher, 2007 U.S. Dist. Lexis 23843 (E.D. Ky. 2007).
Monitoring
An employer might want to monitor its employees' online conduct while at work. The argument goes something like this: "The employee is on my time, in my facility, and using my computer equipment. Why shouldn't I be able to monitor what's going on?"
Any monitoring should be done with care. In Pietrylo v. Hillstone Restaurant Group, 2008 WL 6085437 (D.N.J. 2008), a Newark jury found that the employer violated the federal Stored Communications Act by secretly monitoring employees' postings on a private password-protected Internet chat room. This followed an earlier case, Konop v. Hawaiian Airlines, Inc., 302 F.3d 868 (9th Cir. 2002), where the court also held that secret monitoring by an employer of a password protected website visited by an employee while at work violated the federal Stored Communications Act.
However, earlier this year, the U.S. Supreme Court unanimously held that a public employer's review of an employee's text messages on an employer-issued device was a reasonable search under the Fourth Amendment. City of Ontario v. Quon, No. 08-1332, 560 U.S. ___ (2010). This case involved the use of a pager issued to the employee by the employer. The employer authorized a set number of text messages per month and allowed employees to pay for any overage. Employees were not prohibited from using the pager to send and receive personal text messages. The employer noticed that one employee had an excessive number of text messages and asked its service provider for copies of the text messages from that employee's phone. It found messages to the employee's wife and girlfriend. The employee claimed that his privacy had been violated. The lower court had held that the service provider violated the Stored Communications Act when it provided the employee's text messages to the employer. The Supreme Court reversed, holding that the employer had a right to see text messages sent and received on the employer's pager. While this case involved a public employer (and courts have typically allowed greater employer control of public employees), the court clearly stated that employees do not have an expectation of privacy when using equipment provided by the employer.
Other Worries
Employers have more serious potential issues than lost productivity to worry about. Social media tools present an easy method of accessing and communicating information. This can include the unauthorized disclosure of confidential information. While the concerns about unauthorized disclosure using social media tools are similar to unauthorized disclosure in more traditional ways, now the disclosure is at the click of a mouse to multiple recipients. Unauthorized disclosure can include the business plans and information of clients as well as those of the employer.
Unfortunately, social media tools can also be used to harass co-workers. What might be a harmless exchange of jokes or photos between friends can take on a new life when they are spread around the office. The seemingly innocent friend request on Facebook from a co-worker can take on new meaning. How does a female employee respond to a "friend" request from her male supervisor?
The technology behind social media presents another new challenge to employers, the inability to effectively respond to misinformation. A fleeting complaint lingers forever and can be accessed or rebroadcast by other employees or those outside of the company. Information remains in cyberspace indefinitely. The employer's response to misinformation or even a later retraction by the defaming party is unlikely to reach all who received the initial communication. Any communication issued by an employee is seemingly valid, even when the employee is a self-appointed company "spokesperson."
Employers might consider charging employees who misuse social media at the workplace with using company equipment inappropriately and follow appropriate disciplinary measures. The social media usage policy should provide for discipline for abuse of the policy and explicitly state that social media may not be used to violate other employer policies, including harassment and non-discrimination policies.
Internal investigations
In a June 2009 survey, Proofpoint asked US employers to report on internal investigations at their companies in the past 12 months. The results of the survey show that employers do have a reason to be concerned about leaks of confidential or proprietary information. Employers reported conducting investigations of leaks by:
Email - 43%
Blog or message board - 18%
Video - 18%Facebook and
LinkedIn - 17%Twitter or SMS texts - 13%
The same employers also reported on the results of their investigations, with a substantial number finding violations of company policies. The rates of employees disciplined or terminated for policy violations were:
Email - 31% terminated
Blog or message board - 17% disciplined, 9% terminated
Video - 15% disciplined, 8% terminated
Social networks - 8% terminated
Twitter/SMS texts - no reported actions
Employer responses
Employers can take a number of measures to reduce the problems that can arise from the use or misuse of social media. As a first step, employers should remind their employees that they have no expectation of privacy when using the employer's electronic equipment or network. This includes employer supplied smart phones, voice mail, and email. Next, employers should review and update as necessary their Internet usage policies to include the use of social media and clearly state what employee actions will result in discipline or even termination.
To address the potential misuse of social media, a social media usage policy should prohibit the use of the employer's name by employees outside of official company communications. The policy also should discipline employees for posting any negative statements about the employer or any derogatory comments about the employee's co-workers or supervisors.
Whether it is two pizza parlor employees abusing food for their YouTube video or anonymous misstatements on a blog about a company's products or services, an employer's reputation can be easily and speedily damaged through the misuse of social media tools. Postings favoring the employer's competitors or slamming its customers, or, in the case of associations, its members, can also be detrimental and the intentional disclosure of confidential employer information can be devastating.
Employer social media policies should prohibit:Disclosure of confidential employer information
Discrimination against or harassment of co-workersUsing the employer's trademarks Infringing the intellectual property rights of othersMaking statements adverse to the employer's business interests or reputationCriticism of customers or business partnersStatements supporting competitorsObscenity
Legal limitations
Multijurisdictional employers may face inconsistent laws when trying to establish uniform policies for their employees. Some states prohibit an employer from acting with respect to employee activity that is not related to the employer or is not on working time. In addition, there are laws that protect concerted activity by employees - the protected right of employees to discuss common issues related to the workplace (these are the laws protecting labor unions). There are also laws that protect complaints related to the violation of workplace laws such as state and federal whistleblower laws. However, employees do not have a right to engage in activity injurious to the employer that does not fall within these limited exceptions. Employers should consult with counsel before establishing policies or taking steps to address the misuse of social media by their employees.
Off- duty conduct
Employers can tread over the line when they attempt to discipline employees for their off-duty conduct. Many states have off-duty conduct laws that prohibit employers from basing employment decisions on legal activities of employees outside of work time. Employers need to be aware of the state laws applicable to each of the jurisdictions where their employees are located to avoid violating these laws.
Postings complaining about the employee's work, the employer, supervisors, or co-workers or postings critical of the employer's product or service can be grounds for disciplinary action up to and including termination. For example, a teacher who was fired for an inappropriate MySpace page sued the employer and lost in Spanierman v. Hughes, 576 F. Supp. 2d 292 (D. Conn. 2008). Even when the conduct does not rise to the level of disciplinary action, it can cause the employer to question the employee's maturity or judgment.
Post-employment
Former employees who left on their own or maintain a positive relationship with their former employer, supervisor and co-workers rarely raise concerns about the potential for harm to the employer through their online activities. However, the disgruntled former employee is a different story. Just as they are not concerned about the bridges they burn, these employees are not worried about the potential consequences of the statements they publish online or their tweets about their former employer, supervisor and even co-workers. The potential for a defamation claim against the former employee can be great. Alas, the opportunity to collect damages is not great.
Some employers have a real concern that confidential information will be released by disgruntled former employees. Requiring employees with access to confidential information, as a condition of employment, to sign a confidentiality and nondisclosure agreement which remains in effect following the termination of the employment relationship is one way to address this potential problem.
Social media non-compete
Employers who sanction employee blogs, Facebook groups, Twitter accounts, and other means of communicating through social media often do not think through the consequences of setting up these accounts with one employee as the face of the company.
What happens when the employee who has been regularly posting blogs on behalf of the company decides to leave? Who owns the profile? Who owns the content? More importantly, who owns the followers? Even if the now former employee does not object to the employer taking over his blog, what if the employer does not have the login name and password?
To address these issues, savvy employers are having their employees sign social media non-competition agreements. Under these social media non-competes, the profile, content and followers of a blog or other communication tool belong to the employer. These agreements are more akin to a non-solicitation agreement than a traditional non-compete.
They are difficult (if not impossible) to enforce but they clearly define the intent of the parties if the employer sees litigation (or alternative dispute resolution) as a necessary step to protect its brand or marketing position.
Conclusion
The now widespread use of social media in and outside of the workplace is not the end of the world as we know it. True, the situations employers can face are different, and small problems can very quickly magnify and multiply. But the sensible employer will respond appropriately, working with its employees to identify appropriate social media usage policies and exploiting the communication benefits that social media can bring to the workplace of the 21st century.
Eileen Morgan JohnsonCounselWhiteford, Taylor & Preston, L.L.P.3190 Fairview Park Drive, Suite 300 Falls Church, VA 22042t: 703-280-9271 f: 703-280-8947 m: 202-615-0894 emjohnson@wtplaw.com Bio vCard http://www.wtplaw.com/
.
===========================
..
N.B. A relevant item, NY Ethics Committees Tackle Social Media Mining has been posted on Nicole Black's Law Blog Sui Generis--a New York law blog . It addresses the issue of the ethics of attorneys using social media and cites the New York City Bar’s opinion (Formal Opinion 2010-2) Ms. Black can be reached at nblack@nicoleblackesq.com .
NYPPL
Nov 24, 2010
Proposed amendment of 4 NYCRR 73.2 addresses the disqualification of individuals from participating in the New York State Health Insurance Plan
Proposed amendment of 4 NYCRR 73.2 addresses the disqualification of individuals from participating in the New York State Health Insurance Plan Source: NYS Register, November 24, 2010
The New York State Department of Civil Service has proposed amending 4 NYCRR 73.2 with respect to the disqualification of individuals from participating in the New York State Health Insurance Plan (‘‘NYSHIP’’) and receiving NYSHIP benefits
Text of proposed rule: That subdivision (e) of Section 73.2 of Part 73 of the Regulations of the Department of Civil Service (President’s Regulations) is amended to read as follows:
(e) Disqualification. The president may disqualify from participation in the health insurance plan and from receiving benefits thereunder any employee or retired employee or dependent of an employee or retired employee who has secured or attempted to secure participation in the health insurance plan or benefits under the plan for himself or another by fraud, deception or a false statement of a material fact, or who has accepted benefits for himself or another knowing he was not entitled thereto. No person shall be disqualified or denied benefits pursuant to this subdivision unless he is first given a written statement of the reasons therefor and afforded an opportunity to make an explanation and submit facts in opposition to such action. Such employee, retired employee or dependent of an employee or retired employee may be restored to eligibility for coverage under the plan only on approval of the president and subject to such conditions as may be imposed by the president, including repayment of sums expended for benefits obtained by fraud, deception or false statement of a material fact, or accepted by the employee with knowledge that he was not entitled thereto.
Public comment will be received until: 45 days after publication of the notice. Data, views or arguments concerning the proposed amendment may be submitted to Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us
The text of the proposed amendment and related information is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
NYPPL
The New York State Department of Civil Service has proposed amending 4 NYCRR 73.2 with respect to the disqualification of individuals from participating in the New York State Health Insurance Plan (‘‘NYSHIP’’) and receiving NYSHIP benefits
Text of proposed rule: That subdivision (e) of Section 73.2 of Part 73 of the Regulations of the Department of Civil Service (President’s Regulations) is amended to read as follows:
(e) Disqualification. The president may disqualify from participation in the health insurance plan and from receiving benefits thereunder any employee or retired employee or dependent of an employee or retired employee who has secured or attempted to secure participation in the health insurance plan or benefits under the plan for himself or another by fraud, deception or a false statement of a material fact, or who has accepted benefits for himself or another knowing he was not entitled thereto. No person shall be disqualified or denied benefits pursuant to this subdivision unless he is first given a written statement of the reasons therefor and afforded an opportunity to make an explanation and submit facts in opposition to such action. Such employee, retired employee or dependent of an employee or retired employee may be restored to eligibility for coverage under the plan only on approval of the president and subject to such conditions as may be imposed by the president, including repayment of sums expended for benefits obtained by fraud, deception or false statement of a material fact, or accepted by the employee with knowledge that he was not entitled thereto.
Public comment will be received until: 45 days after publication of the notice. Data, views or arguments concerning the proposed amendment may be submitted to Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us
The text of the proposed amendment and related information is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
NYPPL
Separate layoff units for NYS Department of Environmental Conservation law enforcement personnel proposed
Separate layoff units for NYS Department of Environmental Conservation law enforcement personnel proposed
Source: NYS Register, November 24, 2010
The amendment, if adopted would “designate the Agency Law Enforcement Services negotiating unit as a separate layoff unit with Dept. of Environmental Conservation.”
The text of the proposed rule and any required statements and analyses may be
obtained from: Shirley LaPlante, NYS Department of Civil Service, Albany, NY 12239, (518) 473-6598, email: shirley.laplante@cs.state.ny.us
Data, views or arguments concerning the proposed amendment may be submitted to: Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us Public comment will be received until: 45 days after publication of this notice.
The full text of the proposal submitted to the Department of State is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
NYPPL
Source: NYS Register, November 24, 2010
The amendment, if adopted would “designate the Agency Law Enforcement Services negotiating unit as a separate layoff unit with Dept. of Environmental Conservation.”
The text of the proposed rule and any required statements and analyses may be
obtained from: Shirley LaPlante, NYS Department of Civil Service, Albany, NY 12239, (518) 473-6598, email: shirley.laplante@cs.state.ny.us
Data, views or arguments concerning the proposed amendment may be submitted to: Judith I. Ratner, Deputy Commissioner and Counsel, NYS Department of Civil Service, Albany, NY 12239, (518) 473-2624, email: judith.ratner@cs.state.ny.us Public comment will be received until: 45 days after publication of this notice.
The full text of the proposal submitted to the Department of State is posted on the Internet at:
http://www.dos.state.ny.us/info/register/2010/nov24/pdfs/rules.pdf
NYPPL
Video evidence exonerates security officers charged with using excessive force
Video evidence exonerates security officers charged with using excessive force
Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v Charles and Ross, OATH Index Nos. 2802/10 & 2803/10
The NYC Health and Hospital Corporation filed disciplinary charges alleging that two Lincoln Medical Center hospital special officers, Morris Charles and Christopher Ross, used excessive force against a hospital visitor when they escorted him outside.
OATH Administrative Law Judge Kara J. Miller determined that the officers and the visitor began to struggle inside the vestibule between the inner and outer doorways of the facility and then on the sidewalk in front of the building.
However, Judge Miller ruled that the video evidence presented by the Corporation failed to support the charges filed against the two officers and, further, that Charles and Ross “credibly established that the visitor initiated the physical altercation by cursing loudly and trying to hit them with a cane.”
Finding that the two security officers had reasonably attempted to de-escalate the situation and when that failed, the force used was not excessive under the circumstances, Judge Miller recommended that the disciplinary charges be dismissed.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2802.pdf
NYPPL
Health & Hospitals Corp. (Lincoln Medical & Mental Health Ctr.) v Charles and Ross, OATH Index Nos. 2802/10 & 2803/10
The NYC Health and Hospital Corporation filed disciplinary charges alleging that two Lincoln Medical Center hospital special officers, Morris Charles and Christopher Ross, used excessive force against a hospital visitor when they escorted him outside.
OATH Administrative Law Judge Kara J. Miller determined that the officers and the visitor began to struggle inside the vestibule between the inner and outer doorways of the facility and then on the sidewalk in front of the building.
However, Judge Miller ruled that the video evidence presented by the Corporation failed to support the charges filed against the two officers and, further, that Charles and Ross “credibly established that the visitor initiated the physical altercation by cursing loudly and trying to hit them with a cane.”
Finding that the two security officers had reasonably attempted to de-escalate the situation and when that failed, the force used was not excessive under the circumstances, Judge Miller recommended that the disciplinary charges be dismissed.
The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2802.pdf
NYPPL
Repeated acts of insubordination, excessive absences and untimely completion of assigned tasks warrants termination of the employee
Repeated acts of insubordination, excessive absences and untimely completion of assigned tasks warrants termination of the employee
Matter of Gibbons v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 08571, Decided on November 16, 2010, Appellate Division, Second Department
Grace Gibbons, a court reporter in the District Court, Nassau County, for 22 years, was served with disciplinary charges.
In the course of the disciplinary hearing the Office of Court Administration presented evidence that Gibbons had been “insubordinate to her supervisors and to a District Court Judge, that she failed to produce transcripts in a timely manner, and that she was excessively absent without providing sufficient notice.”
The disciplinary hearing officer, Colleen M. Fondulis, found Gibbons guilty of a number of the charges filed against her and recommended that she be dismissed from her position. The Deputy Chief Administrative Judge for Courts Outside of New York City, Jan H. Plumadore, concurred, finding Gibbons guilty of the misconduct and incompetence alleged in many of the 20 specifications. Judge Plumadore adopted the hearing officer's recommendation as to the penalty to be imposed and terminated Gibbons from her position.
Gibbons filed a petition pursuant to CPLR Article 78 appealing Judge Plumadore’s determination.
The Appellate Division said that test of the lawfullness of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.* In this instance, said the court, it found that that the administrative determination was supported by substantial evidence.
Further, the court said that "[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists," citing Matter of Berenhaus v Ward, 70 NY2d 436.
In considering the penalty imposed on Gibbons, termination, the Appellate Division noted that a penalty imposed following an administrative disciplinary hearing based on a finding that the individual is guilty of one or more of the charges must be sustained unless it is "so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” the so-called “Pell Standard.”**
Considering Gibbons’ “repeated acts of insubordination, absences, and untimely completion of transcripts,” the Appellate Davison said that the penalty imposed, termination, did not shock its sense of fairness.
* Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"
** Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08571.htm
NYPPL
Matter of Gibbons v New York State Unified Ct. Sys., Off. of Ct. Admin., 2010 NY Slip Op 08571, Decided on November 16, 2010, Appellate Division, Second Department
Grace Gibbons, a court reporter in the District Court, Nassau County, for 22 years, was served with disciplinary charges.
In the course of the disciplinary hearing the Office of Court Administration presented evidence that Gibbons had been “insubordinate to her supervisors and to a District Court Judge, that she failed to produce transcripts in a timely manner, and that she was excessively absent without providing sufficient notice.”
The disciplinary hearing officer, Colleen M. Fondulis, found Gibbons guilty of a number of the charges filed against her and recommended that she be dismissed from her position. The Deputy Chief Administrative Judge for Courts Outside of New York City, Jan H. Plumadore, concurred, finding Gibbons guilty of the misconduct and incompetence alleged in many of the 20 specifications. Judge Plumadore adopted the hearing officer's recommendation as to the penalty to be imposed and terminated Gibbons from her position.
Gibbons filed a petition pursuant to CPLR Article 78 appealing Judge Plumadore’s determination.
The Appellate Division said that test of the lawfullness of an administrative determination made after a hearing required by law is limited to whether that determination is supported by substantial evidence.* In this instance, said the court, it found that that the administrative determination was supported by substantial evidence.
Further, the court said that "[t]he courts may not weigh the evidence or reject the choice made by [an administrative agency] where the evidence is conflicting and room for choice exists," citing Matter of Berenhaus v Ward, 70 NY2d 436.
In considering the penalty imposed on Gibbons, termination, the Appellate Division noted that a penalty imposed following an administrative disciplinary hearing based on a finding that the individual is guilty of one or more of the charges must be sustained unless it is "so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law,” the so-called “Pell Standard.”**
Considering Gibbons’ “repeated acts of insubordination, absences, and untimely completion of transcripts,” the Appellate Davison said that the penalty imposed, termination, did not shock its sense of fairness.
* Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact"
** Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08571.htm
NYPPL
Errors in processing a disciplinary action results in annulment of determination
Errors in processing a disciplinary action results in annulment of determination
Collins v Parishville-Hopkinton CSD, 256 AD2d 700
The Collins case demonstrates that even what one might assume is an “open and shut” disciplinary case can go awry.
It was undisputed that Ann Collins, a full-time bus driver employed by the Parishville-Hopkinton Central School District, brought a 12-pack of beer with her to the district’s bus garage and that she drank some of the beer while waiting to be taken to a bus drivers training workshop.
The district filed disciplinary charges against her pursuant to Section 75 of the Civil Service Law, alleging Collins that she:
1. brought and consumed beer on school district property;
2. attended a bus driver safety workshop after having consumed beer;
3. was under the influence of alcohol at the training session;
4. drove out of the district’s parking lot at a high rate of speed, spinning the vehicles tires and “fishtailing;” and
5. appeared distracted and inattentive at the training session.
Although Collins was found guilty “of the charges laid against her” and terminated, the Appellate Division annulled the determination because it found that “the determination of the hearing officer and of the Board of Education were replete with error.”
The hearing officer erred by finding the employee guilty of some offenses with which she had not been charged. This is not permissible under Section 75 unless the charges are amended by the appointing authority, here the school board. Such an error is a denial of due process; the employee must have notice of what offenses he or she is charged with and have an opportunity to prepare a defense.
In Collins’ case, the Appellate Division pointed out that the determination made in a disciplinary proceeding “must be based on the charges [and] no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.” The court ruled that the hearing officer erred when he found Collins guilty of two uncharged specifications of misconduct and based his penalty recommendation on those findings.
The school board erred by failing to explain its decision to find the employee guilty of all the original charges, despite the fact that the hearing officer found the employee innocent of some of the original charges.
An appointing authority may ignore a hearing officer’s finding of innocence on a specific charge and nevertheless find the employee guilty of that charge but in such a circumstance it behooves the appointing authority to cite evidence in the record to support its determination. If the employee chooses to appeal the determination, the courts typically will view an “unsupported” determination as arbitrary and capricious.*
As to the action taken by the school board, the Appellate Division explained that “although the Board of Education was not bound by the hearing officer’s determination to dismiss four of the charges [i.e., charges 2-5] levied against [Collins] and was entitled to find [her] guilty of those charges if the evidence provided adequate factual support therefore, it was incumbent upon the Board of Education to render a decision with specific factual findings supporting its conclusions in that regard.”
In other words, while the board could find Collins guilty of charges 2-5 as reflected by its resolution, it was required to set out the evidence it relied upon to support its findings of guilt if it hoped to have its determination withstand judicial scrutiny.
The court said that under the circumstances, the board’s decision had to be annulled and the matter remanded to it so that it may make findings of fact in support of whatever decision it may deem proper “based on the evidence previously presented” to it. Clearly, the Appellate Division’s directive precludes the district from holding a new hearing on the “formal” charges it initially filed against Collins.
* According to the decision, the hearing officer found that Collins brought and consumed beer on school property; offered beer to other drivers; and left beer in the open back of her pick-up truck parked in the district’s parking lot. Concluding that this constituted poor judgment, he recommended that Collins be dismissed. The School Board passed, without further elaboration, a resolution finding Collins “guilty of the charges laid against her and each of them.” It then adopted the hearing officer’s recommendation that Collins be dismissed. It appears that the hearing officer found Collins guilty of charge 1, together with 2 other offenses not charged. The school board apparently found Collins guilty of the charges filed against her, including charge 1, but did not adopt the findings of the hearing regarding Collins offering beer to other drivers and leaving beer exposed in the back of her truck.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
NYPPL
Collins v Parishville-Hopkinton CSD, 256 AD2d 700
The Collins case demonstrates that even what one might assume is an “open and shut” disciplinary case can go awry.
It was undisputed that Ann Collins, a full-time bus driver employed by the Parishville-Hopkinton Central School District, brought a 12-pack of beer with her to the district’s bus garage and that she drank some of the beer while waiting to be taken to a bus drivers training workshop.
The district filed disciplinary charges against her pursuant to Section 75 of the Civil Service Law, alleging Collins that she:
1. brought and consumed beer on school district property;
2. attended a bus driver safety workshop after having consumed beer;
3. was under the influence of alcohol at the training session;
4. drove out of the district’s parking lot at a high rate of speed, spinning the vehicles tires and “fishtailing;” and
5. appeared distracted and inattentive at the training session.
Although Collins was found guilty “of the charges laid against her” and terminated, the Appellate Division annulled the determination because it found that “the determination of the hearing officer and of the Board of Education were replete with error.”
The hearing officer erred by finding the employee guilty of some offenses with which she had not been charged. This is not permissible under Section 75 unless the charges are amended by the appointing authority, here the school board. Such an error is a denial of due process; the employee must have notice of what offenses he or she is charged with and have an opportunity to prepare a defense.
In Collins’ case, the Appellate Division pointed out that the determination made in a disciplinary proceeding “must be based on the charges [and] no person may lose substantial rights because of wrongdoing shown by the evidence, but not charged.” The court ruled that the hearing officer erred when he found Collins guilty of two uncharged specifications of misconduct and based his penalty recommendation on those findings.
The school board erred by failing to explain its decision to find the employee guilty of all the original charges, despite the fact that the hearing officer found the employee innocent of some of the original charges.
An appointing authority may ignore a hearing officer’s finding of innocence on a specific charge and nevertheless find the employee guilty of that charge but in such a circumstance it behooves the appointing authority to cite evidence in the record to support its determination. If the employee chooses to appeal the determination, the courts typically will view an “unsupported” determination as arbitrary and capricious.*
As to the action taken by the school board, the Appellate Division explained that “although the Board of Education was not bound by the hearing officer’s determination to dismiss four of the charges [i.e., charges 2-5] levied against [Collins] and was entitled to find [her] guilty of those charges if the evidence provided adequate factual support therefore, it was incumbent upon the Board of Education to render a decision with specific factual findings supporting its conclusions in that regard.”
In other words, while the board could find Collins guilty of charges 2-5 as reflected by its resolution, it was required to set out the evidence it relied upon to support its findings of guilt if it hoped to have its determination withstand judicial scrutiny.
The court said that under the circumstances, the board’s decision had to be annulled and the matter remanded to it so that it may make findings of fact in support of whatever decision it may deem proper “based on the evidence previously presented” to it. Clearly, the Appellate Division’s directive precludes the district from holding a new hearing on the “formal” charges it initially filed against Collins.
* According to the decision, the hearing officer found that Collins brought and consumed beer on school property; offered beer to other drivers; and left beer in the open back of her pick-up truck parked in the district’s parking lot. Concluding that this constituted poor judgment, he recommended that Collins be dismissed. The School Board passed, without further elaboration, a resolution finding Collins “guilty of the charges laid against her and each of them.” It then adopted the hearing officer’s recommendation that Collins be dismissed. It appears that the hearing officer found Collins guilty of charge 1, together with 2 other offenses not charged. The school board apparently found Collins guilty of the charges filed against her, including charge 1, but did not adopt the findings of the hearing regarding Collins offering beer to other drivers and leaving beer exposed in the back of her truck.
============================================
If you are interested in learning more about disciplinary procedures involving public officers and employees, please click here: http://thedisciplinebook.blogspot.com/
============================================
NYPPL
Jurisdiction of the Commissioner of Education to consider Taylor Law and Open Meetings Law issues
Jurisdiction of the Commissioner of Education to consider Taylor Law and Open Meetings Law issues
Matter of Goldin and the Wappingers Falls CSD, Decisions of the Commissioner of Education, 14043
This decision by the Commissioner of Education points out he does not have jurisdiction to resolve a dispute merely because the issue involves a school district. In this Education Law Section 310 appeal filed with the Commissioner, the issues raised concerned the terms of a collective bargaining agreement and the State’s Open Meetings Law.
After noting that Goldin’s appeal had to be dismissed for a number of procedural reasons including her failure to include all necessary parties -- the Board of Education and the Congress -- the Commissioner dismissed the appeal on the grounds that he did not have the authority to resolve these issues.
Since 1988 collective bargaining agreements between the Wappingers Central School District and the Wappingers Congress of Teachers provided that the Congress’ president, in order to conduct union business, “will teach three periods per day if he/she is a secondary teacher and will act as a substitute three days per week if he/she is an elementary teacher.”
A 1995 “side letter” signed by school superintendent John G. Marmillo and Congress president Ronald L. Warman relieved Warman of all of his teaching duties in order to allow him to conduct Congress business. The Congress was to reimburse the district in accordance with an agreed upon formula based on “60 percent of the substitute pay rate.”
Contending that the “side letter is an illegal document,” Dione Goldin filed an appeal with the Commissioner pursuant to Section 310 of the Education Law naming school superintendent John G. Marmillo and Congress president Ronald L. Warman as the respondents. She asked the Commissioner of Education to annul the side letter and order the Congress to reimburse the district the “salary for the period covered under the letter” paid to its president.
This decision demonstrates that including all the “necessary parties” is critical in prosecuting a Section 310 appeal before the Commissioner. As an example, in an appeal in which parents sought to have a school bus driver dismissed because of alleged “abusive conduct” towards students after the district declined to do so, the Commissioner said that “the parents’ failure to name the driver as a respondent required that he dismiss their appeal” [Appeal of Lippman (Holland Central School District), Decision 14041]. The decision points out that “a party whose rights would be adversely affected by a determination of an appeal in favor of the petitioner is a necessary party and must be joined as such.”
The Commissioner pointed out that “to the extent that [Goldin] seeks an order directing the Wappingers Congress of Teachers to reimburse the school district, union organizations are not subject to the jurisdiction of the Commissioner of Education under Education Law Section 310.”
Goldin also complained that the Board of Education violated the Open Meetings Law. The Commissioner said that alleged violations of the Open Meetings Law must be pursued in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, rather than a Section 310 appeal.
NYPPL
Matter of Goldin and the Wappingers Falls CSD, Decisions of the Commissioner of Education, 14043
This decision by the Commissioner of Education points out he does not have jurisdiction to resolve a dispute merely because the issue involves a school district. In this Education Law Section 310 appeal filed with the Commissioner, the issues raised concerned the terms of a collective bargaining agreement and the State’s Open Meetings Law.
After noting that Goldin’s appeal had to be dismissed for a number of procedural reasons including her failure to include all necessary parties -- the Board of Education and the Congress -- the Commissioner dismissed the appeal on the grounds that he did not have the authority to resolve these issues.
Since 1988 collective bargaining agreements between the Wappingers Central School District and the Wappingers Congress of Teachers provided that the Congress’ president, in order to conduct union business, “will teach three periods per day if he/she is a secondary teacher and will act as a substitute three days per week if he/she is an elementary teacher.”
A 1995 “side letter” signed by school superintendent John G. Marmillo and Congress president Ronald L. Warman relieved Warman of all of his teaching duties in order to allow him to conduct Congress business. The Congress was to reimburse the district in accordance with an agreed upon formula based on “60 percent of the substitute pay rate.”
Contending that the “side letter is an illegal document,” Dione Goldin filed an appeal with the Commissioner pursuant to Section 310 of the Education Law naming school superintendent John G. Marmillo and Congress president Ronald L. Warman as the respondents. She asked the Commissioner of Education to annul the side letter and order the Congress to reimburse the district the “salary for the period covered under the letter” paid to its president.
This decision demonstrates that including all the “necessary parties” is critical in prosecuting a Section 310 appeal before the Commissioner. As an example, in an appeal in which parents sought to have a school bus driver dismissed because of alleged “abusive conduct” towards students after the district declined to do so, the Commissioner said that “the parents’ failure to name the driver as a respondent required that he dismiss their appeal” [Appeal of Lippman (Holland Central School District), Decision 14041]. The decision points out that “a party whose rights would be adversely affected by a determination of an appeal in favor of the petitioner is a necessary party and must be joined as such.”
The Commissioner pointed out that “to the extent that [Goldin] seeks an order directing the Wappingers Congress of Teachers to reimburse the school district, union organizations are not subject to the jurisdiction of the Commissioner of Education under Education Law Section 310.”
Goldin also complained that the Board of Education violated the Open Meetings Law. The Commissioner said that alleged violations of the Open Meetings Law must be pursued in State Supreme Court pursuant to Article 78 of the Civil Practice Law and Rules, rather than a Section 310 appeal.
NYPPL
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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.
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