Running for elected office could adversely affect individual’s continuation in his or her public employment

Running for elected office could adversely affect individual’s continuation in his or her public employment
Cusumano v Board of Commissioners, App. Div., 251 A.D.2d 404,

The Cusumano case shows that the decision of a public employee to run for public office may have an unexpected, and unintended, impact on his or her public employment.

In December the Franklin Square and Munson Fire Department held an election for members of its Board of Commissioners. Both Louis R. Cusumano and Theodore Braun submitted valid nominating petitions to run for a vacancy on the board and their names were placed on the ballot.

On the day of the election, Braun, a New York City police officer, asked the board to remove his name from the ballot. He said that he had learned that Section 1129 of the New York City Charter prohibited city police officers that accepted a nomination for elective office from continuing their employment with the city. The board refused to remove Braun’s name from the ballot. To further complicate matters, Braun was elected to the vacancy.

Cusumano sued, seeking an order directing that the election result be set aside, claiming that the board had “improperly failed” to honor Braun’s attempt to decline his nomination. Although a State Supreme Court justice granted Cusumano’s petition, the Appellate Division reversed that ruling.

The Appellate Division pointed out that while Section 176(7) of the Town Law allows a fire district resident to file a nominating petition, there is no provision in the Town Law authorizing the removal of a candidate’s name from the ballot once he or she has filed a lawful petition.

In addition, the court commented that as “Braun was properly nominated ... the fact that he subsequently learned that he could not continue his employment as a New York City police officer if he accepted the nomination did not disqualify him from running for office.”

Accordingly, the Court concluded that the relief Cusumano requested was not warranted because the board’s refusal to remove Braun’s name from the ballot “cannot be considered a failure to perform a duty enjoined upon it by law....”

The decision is silent as to the impact of Braun’s nomination for, and election to, the board on his employment as a New York City police officer.

Educator's ignoring repeated warnings not to engage in physical contact with students held justified termination

Educator's ignoring repeated warnings not to engage in physical contact with students held justified termination
Forte v Mills, Appellate Division, 250 A.D.2d 882

According to his supervisors at the Manhasset Union Free School District, physical educator teachers Garry Forte had a habit of poking female students in the back and occasionally “snapped their bra straps” during physical education class. After he failed to heed repeated warnings against engaging in physical contact with his students, he was served with disciplinary charges pursuant to Section 3020-a.

A Section 3020-a disciplinary hearing panel found Forte guilty of conduct unbecoming a teacher and insubordination. The panel recommended that Forte be dismissed from his position. The Commissioner of Education sustained the hearing panel’s determination and the penalty imposed.

Forte appealed the Commissioner’s determination. The Appellate Division rejected his appeal, finding that the determination (1) was neither arbitrary nor capricious; (2) was not affected by an error of law; and (3) had a rationale basis.

The decision points out that Forte admitted that he had been orally cautioned against touching students and that he continued to do so “as part of his motivational and instructional technique.” Based on the testimony of witnesses and Forte’s admission, the court said that it found no basis to overturn the Commissioner’s determination.

As to the penalty imposed, dismissal, the Appellate Division said that “dismissal is appropriate where a teacher, having been repeatedly warned against physical contact with students, fails to avoid such contact which, regardless of its purpose, may be interpreted by those students as sexually suggestive or harassing.”

In addition, the court pointed out that with Forte’s “wholly disregarding the progressive discipline imposed in the past,” the penalty imposed was not so disproportionate to the offense as to be shocking to one’s sense of fairness, citing Pell v Board of Education, 34 NY2d 222.

Commission’s authority to determine applicant’s qualification for appointment not compromised by court’s order directing the production of evidence

Commission’s authority to determine applicant’s qualification for appointment not compromised by court’s order directing the production of evidence
Matter of McElligott v Nassau County Civ. Serv. Commn., 57 AD3d 671

The Nassau County Civil Service Commission disqualified Maurice McElligott for appointment as a police officer after finding that he did not meet the psychological requirements of the position.

McElligott challenged the Commission’s determination and in the course of the trial Supreme Court directed the Commission to produce "the actual written protocol used, if any, in determining passage or non passage [sic] of applicant's MMPI-2 test" and "evidence demonstrating in what manner [McElligott's] and other candidates' MMPI-2 test results fall outside [the acceptable] range [of scores],” thereby requiring McElligott submit to “a Stage II screening evaluation.”

The basis for the Supreme Court’s action was that if found that the Commission’s psychological expert’s statements directly contradicted the Commission's representation "that only candidates whose scores fall outside the established acceptable range are referred to Stage II of the screening process.”

The Commission appealed, claiming that the court’s order interfered with its power to determine the qualifications for appointment to police officer positions.

The Appellate Division affirmed, commenting that the Supreme Court’s directive neither constituted an attempt to interfere with the Commission’s discretion to determine the qualifications of police officers nor “impermissibly expand the scope of the instant proceeding.”

Rather than demand irrelevant evidence of the MMPI-2 results of other candidates, the Appellate Division ruled that Supreme Court simply directed the Commission to produce evidence, such as a written protocol, that set forth the guidelines for determining whether any given candidate's MMPI-2 score fell outside of a pre-determined "normal" range that would trigger the decision to refer such candidate to Stage II psychological evaluation.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09797.htm

Unilaterally deducting employee leave accruals and creating a noncontractual procedure for recouping holiday pay violated employer's duty to negotiate

Unilaterally deducting employee leave accruals and creating a noncontractual procedure for recouping holiday pay violated employer's duty to negotiate
Sullivan County Patrolman's Benevolent Association, Inc. and County of Sullivan and Sullivan County Sheriff, U-26725 [Source: PERB’s Recent Decisions posting on the Internet]

The Board affirmed the decision of the ALJ finding that the County violated the Taylor Law by unilaterally implementing a system for the recovery of leave accruals and holiday pay which a unit employee allegedly owed to the County and by deducting vacation, sick leave and personal leave from the employee's leave accrual. The Board found that the ALJ properly retained jurisdiction over the charge, which alleged violations of §§209a.1(a), (c), (d) and (e) of the Act.

The ALJ dismissed the (a) and (c) allegations for failure of proof and did not defer the (d) and (e) allegations, even though a decision with respect to those allegations necessitated interpretation of the expired collectively negotiated agreement.

The Board discussed and clarified both its jurisdictional and merits deferral policies regarding (d) and (e) allegations.

PERB affirmed the ALJ, finding that neither jurisdictional nor merits deferral was appropriate in this case because the ALJ had already decided the (a) and (c) allegations, the parties were holding the arbitration of the related grievance in abeyance pending the outcome of the improper practice proceeding and the County was not seeking deferral.

Reaching the merits of the case, the Board held that the County violated §§209a.1(d) and (e) of the Act when it unilaterally deducted leave accruals and set up a noncontractual procedure for recouping holiday pay from an employee who had been on GML §207 leave intermittently over the course of several months.

Public law takes precedence over private law

Public law takes precedence over private law*

Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/ -- From Law.com, "9th Circuit: No Choice of Law on Independent Contractor Status" by Cheryl Miller of The Recorder

In a significant victory for employment plaintiffs, the 9th U.S. Circuit Court of Appeals on Tuesday held that employers cannot use choice-of-law contracts to avoid California labor regulations.

While workplace contracts may be subject to out-of-state law, actual workplace terms and conditions affecting workers in the Golden State are governed by California statutes ...

"While the contracts will likely be used as evidence to prove or disprove the statutory claims, the claims do not arise out of the contract, involve the interpretation of any contract terms, or otherwise require there to be a contract," [the judge] wrote. The plaintiffs' "claims arose under the Labor Code, a California regulatory scheme, and consequently, California law should apply to define the boundaries of liability under that scheme."

Narayan involves the red-hot issue of employee classification. Plaintiffs lawyers say that multistate companies have increasingly tried to designate workers as independent contractors to avoid California's perceived worker-friendly regulations on overtime and meal-and-rest periods. ...

EMM


* Harvey Randall Comments: Essentially “public law” refers to laws, rules and regulations enacted by a public entity and applicable to all relevant persons and organizations subject to that entity’s jurisdiction while “private law” refers to contracts and agreements between individuals and organizations that are binding only on the parties to the contract or agreement.

However, the Congress of the United States, will, from time to time, enact a “private law” that affects or apples to only an individual, family, or a small group. These private laws are generally adopted to redress some injury resulting from a government programs or in connection an executive agency ruling such as deportation order.

Such private laws are cited, for example, as Pvt.L. 107-006, the abbreviation Pvt.L. indicating that it is a “private law.”

In addition, State legislatures, including New York State’s Legislature, may adopt bills in the nature of “private law” that apply only to a single individual, group of individuals, or certain political subdivisions of the State. For an example of a “private bill” introduced during the 2010 Legislative Session see A1598 Zebrowski – which would authorize Beth Barsamian to receive an ordinary death benefit of her daughter, Lauren Barsamian.