An entertaining example of enforcing administrative law

An entertaining example of enforcing administrative law
Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2010, All rights reserved http://lawprofessors.typepad.com/adminlaw/

"Drop that Head of Cabbage, Mister, and Step Back from Your Cultivator with Your Hands in the Air September 20, 2010", posted on the International Municipal Lawyers Association - Local Government Blog by Dwight Merriam (Robinson & Cole, LLP, Hartford, CT):

DeKalb County, Georgia, can teach us all something about zoning enforcement.

The zoning enforcement authorities cited Steve Miller for growing too many vegetables on his 2-acre lot in a residential zone. Actually, it’s not that he was growing the vegetables; it was that he was selling them at an off-site farmers’ market, you see, because that makes it a commercial activity.

Isn’t there some federal law about transporting zucchini over county lines for the purpose of illegal sale? ...

EMM
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Criticism and reprimand distinguished in the context of entitlement to a disciplinary hearing

Criticism and reprimand distinguished in the context of entitlement to a disciplinary hearing
Ozol v Center Moriches UFSD, NYS Supreme Court, [Not selected for publication in the Official Reports]

Is a letter to an individual concerning his or her work performance constructive criticism or pejorative reprimand? Characterizing the letter as a "reprimand" constitutes discipline, entitling the individual to an Education Law Section 3020-a hearing or a contract disciplinary procedure. In contrast, if the letter simply contains "criticism of a teacher's performance," it may not rise to the level of formal disciplinary action and thus no disciplinary hearing would be required. How to distinguish between the two was the central issue in the Ozol case.

Center Moriches Union Free School District elementary school teacher Jean Ozol was handed a letter by the Superintendent informing her that she was being placed on a paid leave of absence until further notice and that:

1. The school district's attorney has been asked to review the information regarding an incident involving students "during which you displayed, [in the opinion of the Superintendent], conduct unbecoming a teacher" and that the "filing of Section 3020-a charges is a serious consideration at this time;" and

2. During the period of the leave of absence (a) Ozol was not to be on school grounds; and (b) Ozol was to refrain from any contact with students at the elementary school.

A copy of the letter was placed in Ozol's personnel file.

According to New York State Supreme Court Justice Oshrin's opinion, this letter and subsequent actions by the District directed towards Ozol constituted discipline. Why did the Superintendent take this action? It was in response to an incident that occurred while Ozol was teaching a fifth grade physical education class during which a student reported to class fifteen minutes late.

The Superintendent subsequently advised Ozol that "the letter should be considered a formal letter of reprimand." The Superintendent also commented that "it is my conclusion as Superintendent of Schools that your actions were inappropriate in that instance." Ozol was directed "... to refrain from any similar actions in the future."

In addition, the letter "strongly urged ... [Ozol to] enroll in one or more enumerated courses, the participation in which will provide [you] with the opportunity to improve [your] classroom management skills and instructional techniques." This letter was also placed in Ozol's personnel file. Ultimately Ozol sued, contending that the letters written by the Superintendent and other actions taken against her by the District, including a temporary reassignment, violated her rights under Section 3020-a of the Education Law.

The District objected, claiming that any judicial action was premature because Ozol had not exhausted the administrative remedies available to her under the controlling Taylor Law agreement. Why? Because, the District argued, Ozol had not filed a contract grievance. In addition, the District characterized its actions as part of an "evaluation procedure" and thus not discipline within the meaning of Section 3020-a.

The Court was not persuaded by the District's claims, however. The ruling notes that (1) the Taylor Law agreement did not contain "an exclusive remedy clause that would expressly require the exhaustion of administrative remedies prior to seeking judicial review," and (2) the term grievance as used in the contract referred to the resolution of "a dispute between the parties as to the meaning, interpretation or application of the provisions of this Agreement."

The decision also notes that another relevant provision set out in the agreement. The Court said that Article 5, Paragraph 4, of the contract states that "[t]his procedure shall not be used as a method of .... circumventing provisions of State Statutes relating to tenure, retirement, compensation, or disciplinary proceedings."

The Court decided that the letters placed in Ozol's personnel file, her suspension, and her teaching reassignment constituted disciplinary action within the meaning of Section 3020-a and thus not covered by the contract's grievance procedure.

Significantly, the decision indicates that in determining whether a letter in a personnel file constitutes a reprimand, and thus requiring a hearing under Section 3020-a of the Education Law, a Court must recognize the distinction between admonitions to a teacher which are critical of performance and are in the nature of evaluations or administrative efforts to achieve improvement of performance which do not require any formal hearing, and a formal reprimand and actions of a punitive nature, denoting disciplinary action requiring a due process hearing.

Insofar as "admonitions" are concerned, Justice Oshrin said that courts have ruled that the supervisory personnel of a school district have the right, and the duty, to make administrative evaluations as an adjunct to their responsibility to supervise the faculty of the schools, citing Holt v. Board of Education, Webutuck Central School District, 52 NY2d 625.

In contrast, factors to be considered in determining whether a particular letter should be characterized as a formal reprimand rather than an admonition include whether the letter (1) is from the teacher's immediate supervisor or from the Board of Education; or (2) is directed towards an improvement of [future] performance or is a formal reprimand for prior alleged misconduct; or (3) in the nature of a performance evaluation or a castigation for misconduct.

Also of some relevance is whether the letter uses the term "reprimand" and whether the letter uses the accusatory language of formal charges in describing the teacher's conduct. In this instance, said the Court, the Superintendent advised Ozol that she was being placed on a paid leave of absence; that she has displayed conduct unbecoming a teacher; that Section 3020-a charges may be filed; and that she may not go on school grounds or contact students at the elementary school during the period of her leave.

Finally, on February 14, 1997, the Superintendent wrote a letter described as "a formal letter of reprimand," in which Ozol was chastised for her actions and was directed to refrain from similar acts in the future.

Under the circumstances, the Court said it could only conclude that the Superintendent's actions were intended to be disciplinary and punitive in nature, thus triggering the need to file formal disciplinary charges against Ozol pursuant to Section 3020-a and requiring a disciplinary hearing to be held. The Court also observed that although the other contract provisions cited by the District provide for reviewing and challenging materials placed in an individual's personnel file, there was no provision for the removal of formal letters of reprimand from such files.

Concluding that the dispute between the parties was not covered by the Taylor Law agreement, the Court ruled that Ozol was not required to exhaust the remedies provided in the agreement prior to seeking judicial relief and rejected the District's motion to dismiss Ozol's action.
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Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"

Arbitrator holds that a long delay in requesting a new hearing date results in the "death of the grievance"
Local 3973 v Albany County, AD 3rd Dept., 245 AD2d 770, Motion for leave to appeal denied, 91 NY2d 813

Can an arbitrator decide that a request to reschedule a postponed arbitration was made too late and dismiss the underlying grievance? This was the central issue resolved in an appeal filed by Local 3973 after an arbitrator dismissed a grievance filed by Albany County deputy sheriff Chris Curry.

Curry was involved in an automobile accident on September 15, 1993 while on duty. As a result, he was sent a letter of discipline and lost two vacation days. Curry filed a disciplinary grievance. Eventually Local 3973 demanded arbitration on Curry's behalf in accordance with the collective bargaining agreement then in place.

The arbitration was scheduled for June 7, 1994. The union asked for a postponement. The arbitrator granted the request but did not set a new date for the arbitration. Two years had passed before the union asked for a new arbitration date. The arbitration hearing was held on September 17, 1996.

The arbitrator issued an award dismissing the grievance because "the two-year lapse between the original hearing date and the time when [the union] requested a new date 'was beyond any reasonable norm' and constituted the 'death of the grievance.'"

The union objected to the dismissal of Curry's grievance and filed a petition pursuant to Article 75 of the Civil Practice Law and Rules in an effort to vacate the award. Essentially, Local 3973 contended that the arbitrator did not have any authority to dismiss the grievance.

The Appellate Division, Third Department, affirmed a lower court's ruling rejecting the union's claim. The decision notes that to vacate an award on the grounds that the arbitrator exceeded his or her authority, a showing must be made that a specific limitation on that power enumerated in the arbitration clause itself has been violated. In this instance, said the Court, the agreement did not specifically place any limitation on the arbitrator's authority with regard to determining the timeliness of any post filing procedures such as the rescheduling of arbitration dates.

Because of the agreements "broad scope" and lack of any specific prohibition against the arbitrator's making determinations involving "postfiling procedures," the Appellate Division concluded that the question of the timeliness of postfiling procedures fell within the authority of the arbitrator to determine.
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An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB

An employer’s changing its reasons for its actions not necessarily fatal in defending against an improper practice charge before PERB
Public Employees Federation and New York, 30 PERB 3045

Suppose an employer gives one reason to explain an action and later offers a different explanation for its decision. The "real motive" for an action was among the issues raised by the Public Employee Federation [PEF] in its appeal of a PERB administrative law judge's [ALJ] ruling.

New York State Labor Department employee Ronald Goldstein was not permanently appointed to an associate economist's position after serving in the position as a provisional appointee. The PEF filed charges alleging that Labor violated Section 209-a.1(a) and (c) of the Public Employees' Fair Employment Act, contending that Goldstein was not made permanent because of his activities as a PEF officer.

PERB sustained its ALJ's dismissal of the complaint based on Department testimony that "deficiencies in Goldstein's job performance" was the reason why Goldstein was not appointed permanently to the title, rather than his union activities.

However, PEF argued that the Department initially gave a different reason for Goldstein's removal: that "the Department of Civil Service required his removal ... because a new eligibility list had been established." PEF argued the Department should not have been allowed to introduce "performance testimony" in its defense.

PERB upheld the ALJ's decision to allow the job-performance testimony, indicating that "a demonstrated discrepancy in the reasons for an action is clearly relevant to an assessment of a respondent's motive for an action, but not dispositive of that motive as a matter of law."

The citing of a particular reason, even if pretextual, by a party does not mean that there were not and cannot be other, lawful reasons for its actions, PERB said.

PERB held that the fact that an employer gave one reason but not another, or no reason whatsoever, does not prohibit it from submitting evidence of a reason, or additional reasons, at a later date, including at a hearing before an ALJ.
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Termination from a position funded by a federal grant

Termination from a position funded by a federal grant
Mucci v Binghamton, Appellate Division, 245 AD2d 678, Appeal dismissed, 91 NY2d 921, Motion for leave to appeal denied, 92 NY2d 802

In the Mucci case, the Appellate Division was asked to determine if the City of Binghamton abolished a position as a subterfuge to avoid having to file disciplinary charges against the permanent incumbent of the position.

City Community Development Attorney Lawrence A. Mucci's position was funded by federal Community Development Block Grant [CDBG] monies. The City's 1996 budget did not include Mucci's position among the positions to be funded from the Block Grant. As a result, Mucci's position was abolished and he was terminated.

Mucci sued, contending that Binghamton acted in bad faith in eliminating his position because "his termination was not for economic or efficiency reasons but was related to job performance entitling him to a hearing pursuant to Section 75 of the Civil Service Law." The City's action, Mucci complained, was a subterfuge for disciplinary action, thereby denying him his statutory due process right to notice and hearing as required by Section 75.

The Appellate Division concluded that Mucci did not prove that his position was eliminated in an effort to avoid having to file disciplinary charges against him in order to remove him from his position. The Court said that Mucci had the burden of proof of demonstrating that the City acted in bad faith, which, under the circumstances, meant that he had to show that:

1. There were no bona fide reasons for the elimination of the position; or

2. That there were no savings resulting from the abolishment of the position; or

3. Someone was appointed to perform Mucci's former duties.

While observing that the City could have used other funds to continue Mucci's position or could have modified CDBG's budget to continue the position, the fact that it did not do so was not persuasive. The Appellate Division ruled that Mucci failed to meet his burden of proof.

The Court noted that Binghamton was faced with a "financial crisis" due to declining revenues. Although Mucci's former duties were performed by the City's Corporation Counsel or by "outside private counsel on an as needed basis," critical to the Court's holding was the fact that no one was hired in Mucci's place nor was another position created to perform his former duties.

According to the ruling, indications of the City's "good faith" in abolishing Mucci's position included: (1) an evaluation "by an outside source" that Mucci's position was not required and (2) some 20 positions, including Mucci's, were abolished in the 1996 budget, allowing the City to reduce its tax burden and to make more efficient use of limited Federal monies.
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