Substantial evidence requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably”

Substantial evidence requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably”
Matter of Lory v County of Wash., 2010 NY Slip Op 07657, Decided on October 28, 2010, Appellate Division, Third Department

Washington County Sheriff's Department charged Chad R. Lory with four counts of misconduct arising out of his employment as a correction officer pursuant to Civil Service Law §75 alleging that Lory (1) failed to perform his assigned duties in a professional manner, (2) failed to obey all lawful orders, (3) engaged in conduct which tended to undermine the efficiency and discipline within the Department, and (4) was inattentive to duty.

The Hearing Officer found Lory guilty of all four charges and recommended that he be terminated from his position. The Washington County Sheriff Hearing Officers findings and recommendation and Lory was dismissed from his position.

In rejecting Lory’s appeal, the Appellate Division addressed a number of substantive and procedural issues. The court found that:

1. “The violations charged were sufficiently detailed to enable [Lory] to prepare an adequate and extensive defense;

2. “Any references to uncharged conduct found in the determination … were necessary to refute [Lory’s] denial of the charge that his attention was diverted from his duties;

3. The Sheriff’s Department ”was not precluded from instituting charges based on conduct that was [earlier] the subject of counseling and complaints”; and

4. “The Hearing Officer's determination is sufficiently detailed, such that petitioner was not deprived of the opportunity to intelligently challenge and obtain adequate judicial review of the same.”

As to the substance of Lory's claims, the Appellate Division said that the standard of review to be applied in reviewing an administrative determination made pursuant to Civil Service Law §75 is whether the determination is supported by substantial evidence. This, said the court, requires proof "so substantial that from it an inference of the existence of the fact found may be drawn reasonably."

Reviewing the record established in the course of the hearing,* the Appellate Division said that it found substantial evidence to support the Hearing Officer’s findings.

In addition, the court said that “credibility determinations are ‘solely within the province of the [H]earing [O]fficer,’ and this Court may neither substitute its own judgment for that of the Hearing Officer nor weigh the evidence presented, citing Perryman v Village of Saranac Lake, 64 AD3d 830.

As to the penalty imposed, the Appellate Division said that the evidence supports the Hearing Officer's determination that petitioner's conduct evidenced a lack of professional judgment and posed a serious security risk. Accordingly, the court said that it did not find the penalty of dismissal "so disproportionate to the offenses as to be shocking to one's sense of fairness."

As to Lory’s contention that the Hearing Officer should have conducted a separate hearing with respect to the penalty to be recommended, the Appellate Division held that under the under the circumstances in this case, “the Hearing Officer did not err in making a penalty recommendation without having first conducted a separate hearing.”

* §75.3, in pertinent part, provides that “If such officer or employee is found guilty, a copy of the charges, his written answer thereto, a transcript of the hearing, and the determination shall be filed in the office of the department or agency in which he has been employed, and a copy thereof shall be filed with the civil service commission having jurisdiction over such position. A copy of the transcript of the hearing shall, upon request of the officer or employee affected, be furnished to him without charge.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07657.htm
NYPPL

Public officers and employees may engage in outside employment, aka “moonlighting,” subject to certain restrictions and limitations

Public officers and employees may engage in outside employment, aka “moonlighting,” subject to certain restrictions and limitations
Kastoff v NYS Dept. of Social Services, 195 A.D.2d 808

"Moonlighting" has been a common practice in both the public and private sectors. The Kastoff ruling by the Appellate Division explores some of the guidelines that may control a public employee's eligibility to accept "outside employment" after his or her normal working hours.

Kastoff, a hearing officer with the NYS Department of Social Services [DSS], requested the department's approval to serve as an acting village justice one evening a week in the event the elected village justice was unavailable or recused himself from the proceeding. DSS denied Kastoff's request, indicating that "it would be inappropriate" for him to accept such an appointment. When the DSS did not respond to Kastoff's request for a written explanation of its decision, he sued to annul its determination. The Supreme Court granted Kastoff's petition and DSS appealed.

The Appellate Division said that Kastoff's outside employment was controlled by the provisions of §74 of the Public Officers Law and the "relevant" DSS guidelines. Such laws, rules, regulations and policies required that Kastoff avoid activities that were "in substantial conflict with the proper discharge of his duties in the public interest" and not accept any employment "which (would) impair his independence of judgment in the exercise of his official duties” or which would "require him to disclose confidential information which he has gained by reason of his official position or authority."

Additionally it noted that DSS guidelines prohibited outside employment that would "create or appear to create a conflict of interest with [the] policies and programs of [DSS] or diminish [Kastoff's] effectiveness in the performance of his assigned duties."

The Appellate Ddivision affirmed a lower court ruling granting Kastoff's petition to be allowed to accept outside employment as an acting village justice. The court said that nothing in the record established that Kastoff's service as an acting village justice would be in substantial conflict with his DSS duties and responsibilities and that it did not find any rational basis for DSS to deny his request.

It appears that unless the appointing authority can clearly demonstrate an actual or potential conflict of interest or some substantial incompatibility between an individual’s public employment and the individual's proposed outside employment, a request for approval to engage in "moonlighting" should be approved. In some instances a public employer has negotiated a "no outside employment" provision in the course of collective bargaining under the Taylor Law that provides that approval of outside employment is at the sole discretion of the appointing authority.

However, other provisions of law may bar moonlighting involving certain employers.

For example, an article in the August 25, 2010 issue of the Buffalo News reported: “Police officers cannot work in a licensed bar, restaurant or nightclub in New York State,’ quoting William S. Crowley, public affairs director for the State Liquor Authority who cited [§128 of] the ABC Law as prohibiting such employments. However, during a telephone interview Thomas J. Donohue, Esq., Special Counsel to the State Liquor Authority, pointed out that there is one exception to the Authority’s interpretation of §128 with respect to police officers being prohibited from being employed by its licensees. He commented that §128-a of the Alcoholic Beverage Control Law permits police officers to work at a licensed premise in certain cases.*

Some public employers have adopted policies or negotiated provisions in collective bargaining agreements that limit the ability of its workers to "moonlight" or accept outside employment.

Violating such policies can have serious consequences, as four Saratoga County Sheriff Department employees learned.

The four, including William Marshall, the president of the union representing the Department's civilian employees [the Saratoga County Deputy Sheriffs Benevolent Association], were moonlighting as security personnel for M J Designs, a private sector employer. Marshall was a "road patrol deputy" sheriff, while the other three served as "desk officers."

The Department said that moonlighting was specifically prohibited by its collective bargaining agreement with another union, Saratoga County Deputy Sheriffs Police Benevolent Association, which represents only road patrol personnel.

The Department also noted that it had an administrative policy barring moonlighting and this policy applied to both the Department's road patrol and non-road patrol personnel.

The case also had a criminal aspect. The County's District Attorney had presented charges that the four had committed "official misconduct" to a grand jury. Official misconduct is a misdemeanor.

The County and the four employees agreed to settle the all of the charges alleged. Under the terms of the settlement agreement, the four agreed to a six-month leave without pay. In addition, Marshall agreed to resign from his union position and to "never again serve as a union officer."

One of the concerns noted by the Department was its risk of being sued if one of its employees made an arrest or injured an individual while working a second job.

The Rivera case involves a similar situation (Rivera v Farrell, NYS Supreme Court, Justice Stallman, April 5, 2001, [Not selected for publication in the Official Reports]).

Rivera, a New York City Department of Sanitation [DOS] supervisor, was "moonlighting" as an income tax advisor. According to the decision, Rivera "promoted a tax-evasion scheme, informed other DOS workers about how to evade taxes, and filled out their payroll forms so that taxes would not be withheld, in return for a fee."

Served with disciplinary charges, Rivera was terminated after being found guilty of violations of the DOS Code of Conduct by his filing a W-4 tax withholding allowance certificate falsely claiming exemptions to which he was not entitled, falsely claiming "tax-exempt status" and failing to a file a tax return for the tax year 1994.

The decision indicates that Rivera had earlier pled guilty to failing to file a tax return for the tax year 1994, a misdemeanor.**

DOS alleged that Rivera violated Code of Conduct 3.2, by engaging in conduct prejudicial to good order and which tends to discredit the City or Department, and Code of Conduct 4.4, filing false records or statements.

Rivera appealed, contending that dismissal "was disproportionate compared to sanctions imposed in similar cases." He claimed that (1) others similarly situated, with worse disciplinary records, received suspensions, not termination and (2) three sanitation workers who failed to pay taxes and filed false W-4 forms received 30-day suspensions.

Judge Stallman, after distinguishing the misdeeds of the other DOS workers cited by Rivera with respect to the disciplinary penalties imposed, upheld Rivera's termination. The court said that Rivera had failed to meet his burden of proving that DOS acted arbitrarily, capriciously or contrary to law. Under the circumstances, said the court, the penalty of termination "does not shock the judicial conscience; it was thus not an abuse of discretion."

As an alternative argument for overturning his termination, Rivera submitted a Certificate of Relief from Civil Disabilities he had obtained pursuant to Section 701 of the Corrections Law.

Judge Stallman, after commenting that Rivera failed to demonstrate the relevance of the Certificate insofar as this case was concerned, indicated that even if it were relevant, such a certificate does not exempt a civil servant from administrative discipline.

In another “moonlighting” case, Timothy Kelly was terminated after being found guilty of unauthorized "off-duty employment" and falsifying records. Ultimately the Court of Appeals considered the matter in terms of a court's authority to overturn or modify an administrative disciplinary decision or a disciplinary penalty imposed on a worker [Kelly v Safir, 96 N.Y.2d 32].

The Court of Appeals, ruled:

1. The courts may not modify such a determination if substantial evidence supports it; and

2. A court must uphold an administrative penalty unless it finds that it is so disproportionate to the offense as to be shocking to one's sense of fairness -- the Pell standard [Pell v Board of Education, 34 NY2d 222].

* §128-a of the Alcoholic Beverage Control Law provides that “Notwithstanding any inconsistent provision of law to the contrary, the authority shall promulgate such rules and regulations as may be necessary to provide that it shall not be unlawful for a police officer employed in this state, having written permission and consent from his commanding officer, to work in a premises licensed to sell beer at retail for off-premises consumption under section fifty-four of this chapter or to work solely as a security guard or director of traffic on the premises of a volunteer firefighters' organization licensed to sell beer and wine at retail pursuant to a temporary permit for on-premises consumption under section ninety-seven of this chapter.

** On a related note, some years ago the Internal Revenue Service checked the returns of some 200 police officers and deputy sheriffs in the Indianapolis, Indiana, area that had requested or received "off-duty work permits." It reported that almost 50% of the returns under-reported the total income earned by these taxpayers. IRS said that those found to have underreported their income faced substantial interest charges and penalty payments.
NYPPL

False claim - work-related injury

False claim - work-related injury
Egan v Von Essen, 260 AD2d 479

New York City firefighter Richard M. Egan claimed he injured himself by falling out of a chair while at work. On May 10, 1994, Egan filed an application for a service-incurred disability pension with the Fire Department Pension Fund based on back injuries he allegedly suffered by the fall.

In the course of disciplinary action taken against Egan, the administrative law judge [ALJ] found that Egan had injured his back while participating in a nonwork-related jujitsu class. In addition, the ALJ decided that Egan violated certain regulations of the Fire Department as well as his oath of office by filing an official report containing statements concerning the incident that he knew were untrue.

Based on the findings and recommendation of the ALJ, the Fire Commissioner fired Egan. Egan challenged the Commissioner’s decision, contending that it was not supported by substantial evidence. He also contended that even assuming that he was guilty of the charges filed against him, the penalty of dismissal was unduly harsh.

The Appellate Division rejected Egan’s appeal. It said that under the circumstances of this case, it found that the charges were supported by substantial evidence, including Egan’s “admission of wrongdoing to several witnesses.”

As to the penalty imposed by the commissioner, the court said that “contrary to [Egan’s] contention, the penalty of dismissal was not ‘shocking to one’s sense of fairness’, in view of the evidence that he violated Fire Department regulations and engaged in acts of dishonesty,” citing Pell v Board of Education, 34 NY2d 222.

Similarly, in Miller v NYC Department of Corrections, 260 AD2d 190, the Appellate Division, 1st Department, affirmed the dismissal of New York City correction officer Marie Miller based on the correction commissioner’s finding that Miller made “false and misleading statements during investigatory interviews,” and, accordingly, is guilty of conduct unbecoming a correction officer.
NYPPL

Free speech

Free speech
Council 82 [ex rel Kuhnel], v State of New York, App. Div., 255 AD2d 54, Affirmed, 94 NY2d 321

State Correction Department rules do not trump a correction officer’s First Amendment right to fly a Nazi flag at his home said the Appellate Division in a decision that affirmed an arbitrator’s ruling in the Kuhnel case. This “free speech” ruling was affirmed by the Court of Appeals.

Edward Kuhnel, a state correction officer, flew a Nazi flag from the front porch of his home. He was served with a notice of discipline charging him with violating a Correction Department’s rule providing that:

[a] no employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or [i]ts personnel; and

[b] an employee shall not join or otherwise affiliate himself with any organization, body, or group of persons when such association or affiliation will place his personal interest or interest as a member of such group in conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee.

Kuhnel was suspended without pay pending the completion of a disciplinary arbitration. An arbitrator decided that while the state had probable cause to suspend Kuhnel without pay pursuant to the collective bargaining agreement, he was not guilty of the charges contained in the notice of discipline.

The arbitrator ordered the department to reinstate Kuhnel to his position with back pay and benefits.

The department attempted to have the arbitrator’s award vacated [Section 7511 of the Civil Practice Law and Rules], while Council 82 moved to confirm the award. Rejecting the department’s claims that the arbitrator’s award was totally irrational, the Appellate Division focused on “whether the underlying arbitration or the award resulting therefrom was violative of a strong public policy.”

The court held that the department “failed to demonstrate either that the disciplinary charges brought against Kuhnel were not properly the subject of arbitration or that the public policy of this State, ... prohibits, in an absolute sense, the presence within our prison system of those that display the Nazi flag, or any other flag that may be seen as symbolizing bigotry, racism or totalitarianism.” Accordingly, said the court, it was “constrained to affirm” the arbitration award.

In affirming the Appellate Division’s decision, the Court of Appeals said:

"Simply put then, the issue before this Court is not whether we agree with the arbitrator's assessment of the evidence, interpretation of the contract or reasoning in fashioning the award. We are not authorized to revisit those questions. We must focus on the result only, and can vacate the award if the arbitration agreement itself violates public policy; if the award intrudes into areas reserved for others to resolve; or if, because of its reach, the award violates an explicit law of this State. Our analysis cannot change because the facts or implications of a case might be disturbing, or because an employee's conduct is particularly reprehensible…. However, in order for us to adopt the State's argument, we would have to reject the specific factual findings made by the arbitrator that Kuhnel in fact posed no such threat. As abhorrent as Kuhnel's personal conduct is, Judges cannot reject the factual findings of an arbitrator simply because they do not agree with them (see, United Paperworkers Intl. Union v Misco, Inc., 484 US 29, at 38)."
NYPPL

Testing for drugs

Testing for drugs
Roy v City of New York, 685 NY2d 668

How much evidence is sufficient to require an employee to take a drug test? And if the employee refuses to take the drug test, is that grounds for dismissal?

The Appellate Division addressed those questions in the Roy case. The court ruled that an informant’s statement to a police officer that she had observed Gary Roy, a New York City police officer, using drugs on numerous occasions constituted substantial evidence and provided the amount of reasonable suspicion required for an order directing a drug test for cause.

The Appellate Division said the informant’s story was reasonably detailed. The fact that some of information provided by the informant was self-incriminatory also suggested credibility to the court. The Appellate Division also commented that Roy’s termination for refusing to submit to a drug test when ordered to do so, under the circumstances, did not shock its sense of fairness, upholding Roy’s termination.

However, there was a “back pay” issue to be resolved. The Appellate Division said that Roy had been suspended without pay for more than 30 days pending resolution of the disciplinary action. The decision notes that Roy was suspended without pay on May 2, 1996 and dismissed, following the hearing and determination of the charge supporting the suspension, on July 26, 1996.

Since there was no evidence that Roy was responsible for the delay in the determination of the charge beyond the 30 days suspension period permitted by Civil Service Law Sections 75(3), he is entitled to back pay for the period from June 2, 1996 to July 26, 1996, less any earnings he may have received from other sources during that period.

This is somewhat troublesome, however. Sections 75, 76 and 77 of the Civil Service Law originally provided for such an adjustment for earnings received from other sources during a period of suspension without pay in excess of 30 days upon the restoration of the individual to his or her former position.

But these three sections were amended in 1984. Chapter 710 of the Law of 1984 deleted the phrase “compensation which he may have earned in any other employment or occupation....”

These sections now provide that an employee who is acquitted of disciplinary charges or whose reinstatement is directed by a civil service commission or the court is to be “restored to his position with full pay for the period of the suspension less the amount of any unemployment insurance benefits he may have received during such period.” It would seem that the same rationale would be applied in cases where an individual has been suspended without pay for a period in excess of that authorized by statute.

Similar language is used in Education Law Section 3020-a.4(b) with respect to the payment of back salary upon acquittal.
NYPPL