Name-clearing hearings

Name-clearing hearings
Aquilone v City of New York, 262 AD2d 13, Motion for leave to appeal denied, 93 NY2d 819

A public employee who has been terminated from his or her position may be entitled to a name-clearing hearing if the reasons for his or her separation have been made public by the employer and those reasons tend to “stigmatize” the individual.

The Aquilone case addresses whether a retiree who continues to work as a consultant to the employer is entitled to a name-clearing hearing if his or her behavior prior to retirement is criticized in an investigatory report, putting his or her consulting relationship in jeopardy.

Edward Aquilone, a former Executive Director of Personnel for the New York City Board of Education, won a court order in state Supreme Court directing the school board to hold a name-clearing hearing, only to have the order vacated by the Appellate Division.

Aquilone retired from his position in 1989. Two years later, the Deputy Commissioner of Investigation issued a report that concluded that Aquilone had participated in a cover-up of sexual misconduct involving a fellow employee. The report said that Aquilone appointed friends of the employee to a hearing panel to guarantee a result favorable to the accused and “ensure the proceeding’s secrecy”. The report alleged that Aquilone neglected to give a record of the hearing to the Board’s Office of Personnel Security or log the file into that office’s computer system.

Noting that Aquilone had already retired, the deputy commissioner’s report suggested that suspension or termination of [Aquilone] occasional consulting jobs with the board would constitute “appropriate disciplinary action.”

A four-judge panel of the Appellate Division, 1st Department, ruled that because Aquilone had been retired for two years when the stigmatizing allegations were made, and he was not fired, suspended or demoted, he is not entitled to a name-clearing hearing.

The court ruled that a name-clearing hearing was not appropriate because such a hearing “is a remedy for the deprivation of a person’s due process right when an employee is terminated along with a contemporaneous public announcement of stigmatizing factors, including illegality, dishonesty, immorality, or a serious denigration of the employee’s competence,” citing Donato v Plainview-Old Bethpage School District, 96 F.3d 623, cert. denied 519 US 1150.

In addition, the Appellate Division commented that defamation standing alone does not constitute a deprivation of a liberty interest protected by the due process clause -- some “stigma plus” must be shown before it rises to the level where the individual’s constitutional rights may have been adversely affected.

The court also cited Martz v Inc. Vill. Of Valley Stream, 22 F.3d 26, in which the Second Circuit U.S. Court of Appeals said:

in the context of defamation involving a government employee, defamation ... is not a deprivation of a liberty interest unless it occurs in the course of dismissal or refusal to rehire the individual as a government employee or during termination or alteration of some other legal right or status ... the “plus” is not only significant damage to a person’s employment opportunities, but dismissal from a government job or deprivation of some other legal right or status.

In addition, the court pointed out that reports such as that issued by the deputy commissioner are protected by an “absolute privilege,” referring to the Court of Appeals’ ruling in Ward Telecommunications and Computer Systems Inc. v State of New York, 42 NY2d 289.

In the Ward case, the Court of Appeals -- New York State’s highest court -- ruled that “official ordered reports issued on behalf of the State Comptroller by the Division of Audit and Accounts are subject to an absolute privilege in any action for defamation based on the content of such reports.”

The rationale for this, said the court, was that the public’s interest demands that there be no legal or practical constraint placed on the content of the Comptroller’s reports or deterrent to their availability for public scrutiny.

Applying this rationale to Aquilone’s situation, the Appellate Division said that “the same rule must apply to the results of an official investigation into cover-up of a sex crime committed by a public employee.”
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Testimony by the appointing authority in a disciplinary action

Testimony by the appointing authority in a disciplinary action
DiMattina v LaBua, 262 AD2d 409

One of the issues considered by the Appellate Division in the DiMattina case appeal concerned the fact that the appointing authority both preferred the charges filed against Thomas J. DiMattina and testified against him at the disciplinary hearing that followed.

DiMattina, a Town of Huntington employee, was dismissed from his position after he was found guilty of having “wrongfully obtained and withheld Town-owned lumber, wrongfully obtained and withheld Town-owned tools and equipment, abused his authority, and improperly influenced subordinate Town employees with respect to political activities.”

The appointing authority, the director of the Department of General Services, had preferred the charges against DiMattina and testified at the subsequent disciplinary hearing. But the Appellate Division noted that “he properly disqualified himself from reviewing the recommendations of the Hearing Officer and acting on any of the charges.”

The determination was made by the Deputy Director, who was authorized to act generally in the Director’s absence pursuant to local law and who had been properly designated to render a final determination in DiMattina’s case.

The court said that “it is well settled that when an officer institutes charges of misconduct and testifies at an ensuing hearing, that officer, in the interest of fairness, must disqualify [himself or] herself from reviewing the Hearing Officer’s recommendations and rendering a final determination.” This was done in this case.
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Documents concerning an employee’s separation and post-termination employment benefits available under New York's Freedom of Information Law

Documents concerning an employee’s separation and post-termination employment benefits available under New York's Freedom of Information Law

William E. Hamilton submitted a Freedom of Information Law (FOIL) request seeking documentation concerning "the modification, amendment and/or termination of the employment agreement" between the Jordan-Elbridge Central School District and its superintendent, Marilyn Dominick, as well as any document relating to the termination of Dominick's employment with the district and any post-termination employment benefits. When the District declined to provide Hamilton with the documents he sought, he filed a petition in Supreme Court seeking a court order compelling the District to provide the documents he had sought.

Judge Greenwood stated that only one document was at issue: the agreement between Jordan-Elbridge and Dominick concerning her resignation and retirement.

Explaining that FOIL is based upon a presumption of access and all records of an agency are available except to the extent that the records or portions thereof fall within one or more grounds for denial, as set forth in Public Officer's Law §87,* the court noted that the statute is to be “liberally construed and its exemptions narrowly interpreted so that the public is granted maximum access to the records of government.”

Significantly, Judge Greenwood commented that “both case law and the Committee on Open Government Advisory Opinions have held that a contract between an administrator and a school district must be disclosed under the FOIL, and neither the characterization of the documents as personal records nor their placement in personnel files render the documents confidential or deniable under the law.”

In response to the School District’s “justification for withholding the document,” Judge Greenwood conducted an in camera inspection of the document in question** and concluded that “none of the personal information alleged is contained in the agreement as [the District] claimed. Nor does the agreement contain a confidentiality provision as alleged by [the School District].***

In addition, Judge Greenwood said that the Court “would not be not bound by a confidentiality agreement and must make its own determination regarding disclosure.”

Finally, Judge Greenwood indicated that a party is entitled to its legal fees in prosecuting a FOIL proceeding if the party establishes that:

1) it has substantially prevailed;

2) the record sought was of clearly significant interest to the general public; and

3) the agency lacked a reasonable basis in law for withholding the record.

Here, said the court, there was no confidentiality agreement upon which the School District could have reasonably relied, nor is there any confidential information contained in the document that was required to be redacted.

Also, said the court, Hamilton had shown that the document is of significant interest to the general public and the Superintendent’s desire to keep the reason for her retirement and value of her severance package secret is not a sufficient basis under the Freedom of Information Law to deny the subject FOIL request.

Accordingly, Judge Greenwood awarded Hamilton “attorney's fees in the amount of $2,500.”

* The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise within the ambit of the several exemptions permitted by FOIL otherwise consistent with law. For example, the release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].

** The term “in camera” is used to characterize a hearing or inspection of documents that takes places in private, often in a judge's chambers.

*** Robert J. Freeman, Executive Director, Committee on Open Government, has addressed “non-disclosure agreements.” His views are set out in the “Staff Advisory Opinion” posted on the Internet at http://www.dos.state.ny.us/coog/ftext/f14114.htm Further, in LaRocca v Jericho UFSD, 220 AD2d 424, the Appellate Division said that “as a matter of public policy, the Board of Education cannot bargain away the public’s right to access to public records.” The court ruled that the settlement agreement in question, or any part of it, providing for confidentiality or purporting to deny the public access to the document “is unenforceable as against the pubic interest.”

The decision, Hamilton v Board of Educ. of the Jordan-Elbridge Cent. School Dist., 2010 NY Slip Op 51663(U), Decided on September 23, 2010, Supreme Court, Onondaga County, Judge Donald A. Greenwood [Not selected for publication in the Official Reports], is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_51663.htm
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Although an employer is required to provide a disabled individual with a reasonable workplace accommodation, commuting to work is not job-related

Although an employer is required to provide a disabled individual with a reasonable workplace accommodation, commuting to work is not job-related

Robin DiNatale initiated a proceeding pursuant to Executive Law §298 seeking to annul the determination by the New York State Division of Human Rights that she failed to establish that her employer, the New York State Insurance Fund, discriminated against her by refusing to accommodate her disability when it declined to permit her to work from her home. The Appellate Division affirmed the Division’s determination and dismissed DiNatale’s petition.

Although DiNatale had asked the Fund to allow her to work from her home, she conceded at the hearing held by a Division Administrative Law Judge that “nothing in her work environment caused the symptoms from which she suffered.” According to DiNatale, her symptoms “were aggravated by her drive to and from work” and thus she should be permitted to work from her home as an accommodation for her disability.

While the State’s Human Rights Law* requires employers to make reasonable accommodations to disabled employees, provided that the accommodations do not impose an undue hardship on the employer, the Appellate Division said that a reasonable accommodation is defined, in relevant part, “as an action that permits an employee with a disability to perform his or her job activities in a reasonable manner."

Noting that DiNatale had declined to move closer to her place of employment, had not asked anyone else, including family members or friends, to drive her to and from work and had not attempted to use available public transportation to commute to work, the court said that her employer was not required to accommodate her difficulties in commuting to and from work.**

An employee's commute, explained the court, "is an activity that is unrelated to and outside of [the] job [, and] an employer is required to provide reasonable accommodations that eliminate barriers in the work environment,” citing Salmon, 4 F Supp 2d at 1163. In the Appellate Division's view, an individual's commuting to and from work did not encompass his or her "work environment" insofar as the employer's duty to provide a reasonable accommodation was concerned.

* See Executive Law §296(3)(b)

** The decision notes that DiNatale had tried carpooling with one individual but the carpooling “was not convenient for that person.”

The decision, Matter of DiNatale v New York State Div. of Human Rights, 2010 NY Slip Op 06895, Decided on October 1, 2010, Appellate Division, Fourth Department, is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_06895.htm
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Who is the employer?

Who is the employer?

Who was the employer who fired Floral Park Public Library part-time library clerk Barbara Beers: the Village of Floral Park or the Floral Park Public Library? Such a simple question is not as easy to answer as one might expect.

Barbara Beers was terminated from her position as a part-time clerk by the Floral Park Public Library. She sued both the village and the library, claiming that she had been unlawfully removed from her position without a hearing.

Actually Beers filed a “hybrid proceeding” consisting of an Article 78 to compel the library to reinstate her to her former position and a complaint contending the library violated 42 USC 1983, a federal civil rights statute, when it deprived her of a property right -- her job -- without a due process hearing. She also named the village as a defendant based on representations by its attorney that she had been an employee of the village.

In response, both the village and the library filed motions seeking to have Beers’ petition dismissed. The village said it should be severed from the action on the grounds that (notwithstanding the village attorney’s statements to Beers) it was not Beers’ former employer. The village argued that the library was not an agency or department of the village.

The library contended that Beers’ Article 78 action was untimely, having been filed more than four months after she had been terminated. A Supreme Court judge granted both motions and Beers appealed.

The Appellate Division commenced its analysis by noting that a public library is an educational corporation chartered by the New York State Board of Regents with the authority to hire, fire, and pay its employees and that the Education Law provides that a public library is an entity that is “separate and distinct from the municipality that created it.” It then noted that the relationship between the municipality and the public library may be varied by contract, either express or implied.

Was there an implied contract? Based on the record of the municipality’s behavior, the Appellate Division said that there was a triable issue of fact to be resolved as to which entity was Beers’ employer.

The court noted that the village had offered Beers a comparable clerk’s job and sent her a notice directing her to appear on a date certain for employment. In addition, the court said that the village, in its original answer, admitted “that it employed her”. Accordingly, said the court, it was not clear if the village assumed responsibility for the library’s employees, and thereby responsibility for her termination.

As to Beers’ claims against the library, the Appellate Division said that her Article 78 action was untimely because it was filed more than four months after her termination. It commented that Beers “knew that she worked in the library and that the library functioned separately through a board of trustees.”

However, the Appellate Division ruled that Beers’ complaint contending that the library had violated her civil rights under 42 USC 1983 because it terminated her without a hearing was timely.

The question of who is Beers’ employer and whether she was denied her rights to due process will now have to be considered by a state Supreme Court judge.

The decision, Beers v Village of Floral Park, 262 AD2d 315 , is posted on the Internet at:
http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=1&origin=Search&query=%22BARBARA+BEERS%22&rlt=CLID_QRYRLT508845531171910&rltdb=CLID_DB199475431171910&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA289785431171910&sv=Split&tempinfo=word&vr=2.0
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