Former employees alleged they were the target of selective prosecution in administrative disciplinary action

Former employees alleged they were the target of selective prosecution in administrative disciplinary action
Bey v New York City Civil Service Commission, Supreme Court, Justice Madden, 2001 NY Slip Op 30058(U), [not officially reported]

New York City conducted an investigation to determine which employees were claiming tax-exempt status or were claiming an excessive number of exemptions. About 1,400 City employees were identified, including the Bey correction officers.

Pedro Rivera Bey, Oba Hassan Wat Bey, Edward Ebanks, Herbert L. Hinnant, and Michael Nichols [hereinafter collectively referred to as Bey] are former tenured New York City Correction Department officers.

Identifying themselves as "Black and of Moorish national origin,” and believing that they were exempt from federal and state taxes, they filed Federal and New York State tax forms claiming exemptions from income tax withholdings. Some of these correction officers also filed IRS forms for nonresident aliens or filed self-made forms entitled "Certificates of Foreign Status for Moorish-Americans."

In April 1998, the Correction Department served disciplinary charges alleging that the Bey employees had engaged in conduct unbecoming an officer by: 1) knowingly submitting Federal and State tax forms falsely claiming exemption from taxation; 2) submitting false tax information with the intent to defraud the State of New York; and 3) violating their oaths of office by submitting documents disclaiming their United States citizenship.

The City's Office of Administrative Trials and Hearings [OATH] held a joint hearing for 17 Correction Department employees pursuant to Civil Service Law Section 75. OATH found that Bey and his co-plaintiffs were guilty of all charges filed against them except their alleged "disclaiming of their United States citizenship." The Department imposed the penalty recommended by OATH: termination.

In response to an appeal filed by the Bey employees pursuant to Section 76 of the Civil Service Law, the City's Civil Service affirmed the Correction Department's dismissal Bey correction officers.

Bey's appeal to State Supreme Court set out several claims but only one survived: the claim that "[t]he charges, the hearing procedures and the discharge of the [Bey officers] violated their statutory and constitutional rights." The Supreme Court justice ruled that Bey raised a triable issue when he alleged that employees who were not Moorish-Americans and who engaged in the same or similar misconduct, were permitted to change their W-4s and, further, these employees were not discharged.

Justice Madden ruled that assuming that the allegations in Bey's petition were true, it is sufficient to raise the only issue here subject to judicial review pursuant to Article 78 of the Civil Practice Law and Rules: the constitutional claim of selective prosecution.

In making a claim of selective prosecution, the individual alleges that he or she has been denied his or her constitutional right to equal protection of the laws as guaranteed by the 14th Amendment and the New York State Constitution forbidding a public authority from applying or enforcing an admitted valid law "with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circum­stances.

According to the decision, both the "unequal hand" and the "evil eye" requirements must be proven: i.e., there must be not only a showing that the law was not applied to others similarly situated but also "that the selective application of the law was deliberately based upon an impermissible standard such as race, religion or some other arbitrary classification."

The court said that Bey's petition alleges that he and his co-correction officers were singled out based upon their race, religion and, or, national origin, because the Correction Department and other City agencies permitted "other employees" who were not "Moorish-American" to change their withholding forms, and no disciplinary charges were filed against them and they were not discharged.

As these allegations were found sufficient to state a cause of action for impermissible discriminatory prosecution, the court dismissed all of Bey's allegations except those dealing with the selective prosecution claim and said that a trial was required to resolve this issue.

The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2001/2001_30058.pdf

In the absence of any “expressed” contractual limitations, an arbitrator is free to fashion a fitting and necessary remedy to a contract dispute

In the absence of any “expressed” contractual limitations, an arbitrator is free to fashion a fitting and necessary remedy to a contract dispute
Matter of City of New York v District Council 37 AFSCME, 2010 NY Slip Op 05671, Decided on June 24, 2010, Appellate Division, First Department

An arbitrator ruled that a number of individuals employed as New York City Public Health Advisors (PHAs) by the City’s Department of Health and Mental Hygiene were entitled to $1,800 for each year since the filing of the grievance claiming that they had been performing out-of-title work.

The City appealed, contending that any monetary remedy for the out-of-title work should be “the difference in pay between existing titles covered under the parties' collective bargaining agreement, and not some "new term" of compensation "created" by the arbitrator.” The City argued that the remedy provided by the arbitrator was “in excess of her powers under the collective bargaining agreement and contrary to the public policy that compensation be negotiated.”

Supreme Court dismissed the City’s appeal and the Appellate Division sustained the lower court’s determination.

The Appellate Division said that regardless of any arbitral precedent there might be for such a limitation on the arbitrator's remedy-fashioning powers under collective bargaining agreements like this one, “it plainly can have no application where, as here, there is no dispute that the hybrid out-of-title duties performed by the PHAs do not match the job specifications of any other existing titles.”

Under the circumstances, said the court, “an arbitrator's powers are not limited, as the City appears to argue, to a cease and desist order.”

As there was no “plain and express contractual limitation” in the collective bargaining agreement limiting the powers of the arbitrator, “the arbitrator properly directed the parties to negotiate; when the negotiations reached an impasse, the arbitrator properly invited the parties to submit proof of the value of the out-of-title services performed, including their last best offers; and, on that basis, fashioned fitting and necessary relief.”

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05671.htm

Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction

Having a residence in the jurisdiction not always the same as having a domicile in the jurisdiction
Matter of Johnson v Town of Amherst, 2010 NY Slip Op 05447, Decided on June 18, 2010, Appellate Division, Fourth Department

The Town of Amherst’s Town Code required its employees to be “domiciliaries of the Town.”

James I. Johnson’s family’s home, however, was in Elba, New York and the evidence in the action showed that he “listed the Elba address on his New York State income tax forms, that he had no intention of moving his family to [Amherst] and that he established residency in [Amherst] solely to comply with the original residency requirements of his employment.”
As a result Johnson was terminated from his position with Amherst for failing to comply with the Code’s requirement that he be a domiciliary of the Town.

Johnson sued and asked the court to annul his termination by the Town of Amherst based on its “residency requirement” that Town employees to be domiciliaries of the Town. Supreme Court sustained the Town’s decision and the Appellate Division affirmed the lower court’s ruling.
The Appellate Division explained that "[D]omicile means living in [a] locality with intent to make it a fixed and permanent home."*

Noting that "[j]udicial review of an administrative determination following a hearing required by law is limited to whether the determination is supported by substantial evidence," the Appellate Division said that the evidence presented at the hearing established that Johnson’s family lived in a home in Elba, and that he established a residency in the Town “solely to comply with the original residency requirements of his employment.”

The court concluded that the determination that Johnson is a domiciliary of Elba rather than the Town is supported by substantial evidence and dismissed his appeal.

The Appellate Division also commented that Johnson was fully apprised of the evidence that the Town would consider in making its determination and that he was given "numerous opportunities to respond and to present his own evidence" to establish that he, in fact, was domiciled in Amherst but that he failed to come forward with such evidence.

* Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2010/2010_05447.htm

Sovereign immunity

Sovereign immunity
Alston v State of New York, Ct. of Appeals, 97 N.Y.2d 159

The doctrine of sovereign immunity generally shields a state from suit absent its consent. In Alden v Maine, 527 US 706, the Supreme Court of the United States found that State sovereign immunity is "implicit in the constitutional design." States have claimed sover­eign immunity with respect to their being sued in federal court for alleged violation of various acts of Congress including the Fair Labor Standards Act. New York's claim of sovereign immunity was a critical element in resolving the Alston case.

In 1991, Benjamin Alston and 102 other State parole officers sued the State, claiming that it had failed to pay them overtime in violation of the Fair Labor Standards Act. In 1997, the United States District Court, Northern District of New York, dismissed the action based on the US Supreme Court's ruling in Seminole Tribe of Florida v Florida, 517 US 44. In Seminole the high court said that Article I of the Constitution did not give Congress the power to defeat a states' Eleventh Amendment sovereign immunity from suits commenced or prosecuted in Federal courts.

Alston appealed to the Second Circuit United States Court of Appeals, but the parties agreed to a voluntary dismissal of the action in view of the fact that the Second Circuit had ruled against other claimants in a similar case.

In 1998, Alston filed the same lawsuit in the New York's State Court of Claims. The Court of Claims dismissed the complaint holding that it lacked subject matter jurisdiction because Alston's petition was untimely.

The Appellate Division affirmed the Court of Claims' ruling. It said that "when New York waived its immunity subject to a six-month Statute of Limitations for FLSA claims brought against it as provided by the Court of Claims Act Section 10 ..., such limitation could not be overridden by the Article I powers delegated to Congress, whereby a two or three-year Statute of Limitations was created for FLSA claims." In other words, Alston should have filed his petition with the Court of Claims within six months of the "accrual of his cause of action." The Court of Appeals sustained the Appellate Division's determination.

In the words of the Court of Appeals:

"The issue before us is whether, under the terms of the waiver of sovereign immunity found in Court of Claims Act Section 8, the State retained its immunity as to these claims because claimants failed to comply with the time limitations set forth in Court of Claims Act Section 10(4), upon which the [State's] waiver was conditioned."

The court's conclusion: the State retained its immunity. Why? Because, explained the court, although Section 8 of the Court of Claims Act provides that "the state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to ac­tions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article."

Accordingly, the State's waiver of sovereign immunity was not absolute, but was condi­tioned upon a claimant's compliance with the limitations on the waiver, including the relevant filing deadlines.

The Court of Appeals ruled that "because claimants failed to file their claims in the Court of Claims within six months after their accrual ... and did not timely seek relief from the court under Court of Claims Act 10(6), the State was entitled to dismissal of this claim on sovereign immunity grounds.

Terminating an employee during a disciplinary probation period

Terminating an employee during a disciplinary probation period
Fortner v NYC Dept. of Corrections, 280 A.D.2d 381

In many cases disciplinary charges are "settled" by the employee agreeing to serve a "disciplinary probationary period." The majority of such settlements set out the terms and conditions of the probation and typically provide for the termination of the individual without any further hearing if he or she violates the terms of the settlement.

Steven T. Fortner was serving a disciplinary probation period following the settlement of disciplinary charges that had been filed against him by the New York City Department of Corrections.

The department terminated him, contending that "he violated the terms of his limited probation as set forth in his negotiated plea agreement."

Fortner sued, alleging that he had been terminated in bad faith. The court disagreed, finding that Fortner produced no evidence to support his claim that his dismissal was motivated by bad faith.

Fortner had also asked the court to annul his termination and have the matter remitted to the Department "for reconsideration of the sanction."

The Appellate Division decided that such action was not appropriate under the circumstances since Fortner's termination did not "shock the judicial conscience."

Further, said the court, terminating Fortner for violating the terms of his disciplinary probationary period did not constitute an abuse of discretion on the part of the appointing authority.

The lesson here is that the courts will sustain the termination of an individual serving a disciplinary probation period without a hearing if the employee is discharged for violating or failing to comply with the terms of the disciplinary probation agreed upon.

Suppose the court finds that the employee's termination was inconsistent with the terms and conditions of his or her disciplinary probationary period?

As the Taylor decision indicates [Taylor v Cass, 505 NYS2d 929], in such a situation the individual will be reinstated with back salary.

The Taylor court determined that under the terms of Taylor's disciplinary probation, he could be terminated without any hearing if, in the opinion of his superior, Taylor's job performance was "adversely affected" by his "intoxication on the job."

The court said the appointing authority gave two reasons for it terminating Taylor for violating the terms of his disciplinary probationary period:

1. Taylor's "failing to give a fair day's work"; and

2. Taylor's "sleeping during scheduled working hours."

However, the court found that Taylor's termination was improper because Taylor was not terminated for the sole reason specified in the settlement: his intoxication on the job adversely affecting his performance of the job.

Sometimes the disciplinary probation established resulting from the settlement of the disciplinary action does not limit the appointing authority's discretion in terminating the employee. The Wright case demonstrates such a situation.

In Wright v City of New York, 596 NYS2d 372, the Appellate Division ruled that an employee who had agreed to a disciplinary probation in settlement of disciplinary charges filed against him that provided that his probation status would be the same as any other probationary employee was not entitled to a pre-termination hearing when he was dismissed because of subsequent incidents.

In other words, under the terms of Wright's disciplinary probation he was treated as a "new employee" and he could be summarily terminated for any lawful reason.