Using e-mail as evidence in disciplinary actions

Using e-mail as evidence in disciplinary actions
Strauss v Microsoft, USDC SDNY, Lexis 7433

Employers and employees are discovering that with the increased use of electronic mail [e-mail], records thought not to exist may be hidden in computer files. Accordingly, employers are now reviewing computer backup tapes to find evidence of employee misconduct for use in disciplinary actions while employees are using the same sources to discover incriminating evidence of employer wrongdoing such as unlawful discrimination or sexual harassment.

The Strauss case illustrates this trend. Strauss, an employee of Microsoft, alleging she was not promoted because of gender discrimination. Microsoft’s efforts to have her charges summarily dismissed failed when Strauss introduced “explicit e-mail messages from her supervisor” that she found on backup tapes during the discovery phase of litigation.

Courts are usually disposed to granting motions that “appear reasonably calculated to lead to the discovery of admissible evidence.” The fact that the material sought is in electronic rather than a traditional paper form has not been a barrier to approvals.

In another case, Davidian v O’Mara, [USDC TN, 2-97-0020] a newspaper asked a federal district court to allow it to obtain information stored on City of Cooksville [Tennessee] employee’s computer hard drives under the state’s Freedom of Information Law. The newspaper wanted to find out the “web sites” that may have accessed through the City’s computers by its employees by reviewing the “cookie files” stored on the drives.

Originally the city said the newspaper had to pay for the information -- over $300 -- but later decided to refuse to produce the information, claiming the computer files were not public records. However, “cookie files” are like “telephone logs” according to some attorneys involved in First Amendment litigation and therefore must be produced under “Freedom of Information.”

What about employee claims that “personal e-mail” is private and not subject to scrutiny by the employer. As this is still an issue unsettled by the courts, many employers are advising employees that:

1. Workers should not have any “expectation of privacy” with respect to any information, official or personal, prepared using the organization’s computer equipment; and

2. The employer may periodically monitor or review computer files prepared using company equipment.

In some case, unions have attempted to include “employee privacy” provisions in collective bargaining agreements.

Official misconduct

Official misconduct
People v Lynch, Rockland County Court, [Not selected for publication in the Official Reports]

Kevin Lynch, a member of a school board, was charged with “Official Misconduct” [Penal Law Section 195 et seq] as the result of his voting in favor of the district’s purchasing health insurance policy recommended by a consultant hired by the school district. Lynch allegedly had a “secret arrangement” with the consultant and his employer, the court said. After the district had accepted the health insurance plan recommended by the consultant, Lynch “received approximately $107,000 in commissions....”

Section 195.02 provides that a public servant is guilty of official misconduct when, with intent to obtain a benefit or to injure or deprive another person of a benefit he or she knowingly refrains from performing a duty that is imposed upon him or her by law or is clearly inherent in the nature of his or her office.

Lynch contended that Section 195.02 was unconstitutionally vague because there the law did not set out a standard that could be used to determine conduct that was “clearly inherent in the nature of an office.”

Essentially Lynch argued that the Section 195.02 “fails to provide a clear and unmistakable warning as to the acts which will subject one to criminal punishment.” Judge Kelly, however, said “the essential characteristic of official misconduct is that public servants are under an inescapable obligation to serve the public with the highest fidelity.”

Did Lynch’s vote on the health insurance contract constitute “official misconduct?” Judge Kelly thought it did, noting that “... the object of the official misconduct statute is to punish a breach of duty committed with the requisite culpable state of mind ....” Here, said the Court, the evidence reasonably supports the charge that Lynch failed to perform a “duty clearly inherent in the nature of his office.” In addition, said the Court, Lynch had an ethical obligation to perform said his duties free from conflicts and to disclose such conflicts.

According to the Court, Lynch took an oath of office and was provided with an ethics policy enacted pursuant to General Municipal Law Section 806(a). This policy required that, “[i]f [Lynch] participates in the discussion or gives official opinion on any legislation before the Board he will publicly disclose on the official record the nature and extent of any direct or indirect financial or other private interest he has in such legislation.” The policy also prohibited Lynch from “solicit[ing] or accept[ing] any commission, expense, paid trips, or anything of value from individuals or companies who are vendors or potential vendors to the district....”

Judge Kelly concluded that a school board trustee has a duty to procure insurance for the school district "free from conflict” and dismissed Lynch’s motion seeking to have the criminal action against him quashed.

The full text of the ruling is at:
http://nypublicpersonnellawarchives.blogspot.com/

Individual's refusal to participate in a PERB administrative hearing deemed a failure to prosecute his or her complaint

Individual's refusal to participate in a PERB administrative hearing deemed a failure to prosecute his or her complaint
Armata and United Federation of Teachers, 30 PERB 4713

Rebeca Armata elected not to attend the scheduled PERB hearing. Her complaint was dismissed on the grounds that she had failed to prosecute it. Armata then filed charges with PERB alleging that the United Federation of Teachers had violated its duty of fair representation.*

Armata had boycotted a PERB hearing. She had asked PERB’s Administrative Law Judge [ALJ], Angela M. Blassman, to issue nine subpoenas to compel the attendance of witnesses she wished to question such as the school district’s director of personnel, UFT officers and others. Blassman issued a subpoena for one of the witnesses but denied Armata’s other requests.

Armata told the ALJ that she objected to Blassman’s decision and said that “if PERB changes its position (and issues the remaining subpoenas) ... we’ll be happy to attend the hearing.” When Armata failed to appear, the UFT [and the School District] moved to dismiss the charges based on Armata’s failure to appear.

Blassman, characterizing Armata’s action as a “failure to prosecute,” granted the motion, commenting that Armata “flatly refused to appear for the hearing unless I changed my ruling regarding her subpoena requests.”

Blassman’s rationale for the dismissal was that “a party’s intentional refusal to appear at a hearing unless PERB rules in that party’s favor evidences an intentional disregard of PERB’s process and leaves me no choice but to dismiss the charge.” According to Blassman, “to hold otherwise would improperly allow a party, instead of PERB, to control the conduct of PERB’s proceedings and would permit a party to hold PERB and all other parties hostage to that party’s requests.”

The case raises the question: What should a party do if the ALJ declines to rule in its favor concerning procedural issues such as issuing a subpoena? The answer is simple. The proper course of action is for the party to proceed with the hearing and prosecute, or defend, the charge. If necessary, the party could appeal the ruling to PERB, including the denial of any of its procedural motions by the ALJ.

* The New York City Board of Education was also involved in this case as a “statutory party pursuant to Section 209-a.2 of the Civil Service Law” and had filed an answer denying all of Armata’s material allegations.

Considering the impact of the reallocation of the salary grade of positions on the collective bargaining unit

Considering the impact of the reallocation of the salary grade of positions on the collective bargaining unit
CSEA Local 1000, v PERB, Appellate Division, 248 A.D.2d 882

May a public employer unilaterally seek to reallocate certain titles to a higher salary grade, if such an action serves to remove employees from a bargaining unit?

Monroe County submitted a proposal to the County Legislature to upgrade county physical and occupational therapists. Approval of the proposal would remove 12 of the positions from the negotiating unit represented by CSEA.

CSEA Local 1000, contending that Monroe could not do this without first negotiating the proposed change with the union, filed an unfair labor practice charge with PERB. The complaint alleged that “the County engaged in bad-faith negotiations” and that its “tactics” were eroding the bargaining unit.

PERB reversed an administrative law judge’s ruling that the County violated Section 209-a(1)(a) and (d) when it unilaterally reallocated these titles to higher salary grades and the unilateral wage increase applied to bargaining unit titles was a per se violation of Section 209-a(1)(a).

PERB held that the reallocation of employees to a higher salary grade was not a mandatory subject of collective bargaining. In response, CSEA appealed to challenge PERB’s findings and conclusions.

The Appellate Division probed PERB’s rationale for its ruling and found it was based on an earlier decision by the Appellate Division holding that the “allocation of positions to salary grade is primarily related to a ‘mission’ of an employer and not to terms and conditions of employment” [Evans v Newman, 71 AD2 240].

The court found this persuasive and upheld PERB’s decision. Relying on the Evans decision, PERB properly found that local governments should not be compelled to negotiate allocations of positions to salary grades because such decisions are “an essential aspect of the level and quality of service to be provided by a public employer.”

The Appellate Division, noting that its power to overturn a PERB decision is limited as PERB has been given the authority to determine whether a particular matter is a term or condition of employment, said that PERB's determination will be judicially upheld so long as PERB’s interpretation is legally permissible and so long as there is no breach of constitutional rights and protections.

The Appellate Division also rejected CSEA’s argument that the reallocation and removal of 12 employees from the negotiating unit that resulted from the change was the product of improper motives on the part of the County.

According to the court, "it is clear from the record that the decision to reallocate these titles to higher pay groups was motivated solely by the County's demonstrated need to provide competitive salaries for these positions thereby correcting past recruitment and retention problems.

Correction officer charged with disobeying an order to take a post assignment

Correction officer charged with disobeying an order to take a post assignment
NYC Department of Corrections v Callabrass, OATH Index #1981/10

Regina Callabrass, a New York City correction officer, was served with a number of disciplinary charges alleging, among other things, that she was guilty of disobeying an order to take a post assignment.

OATH Administrative Law Judge Tynia Richard recommended that the charge that the Callabrass disobeyed an order to take an assignment be dismissed. ALJ explained that when Callabrass objected to the assignment, the supervisor did not repeat the directive but, instead, commenced looking for another correction officer to accept the assignment.

With respect to Callabrass’ threat “to call in sick” when she received the unwanted assignment, the ALJ said that this constituted “conduct unbecoming an officer.” In addition Judge Richard found that Callabrass had made a false or misleading logbook entry.

After considering Callabrass’ long service record with no prior discipline, ALJ Richard recommended the imposition of a 5-day suspension without pay as the penalty for these two acts of misconduct.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-1981.pdf