Duty of fair representation
Matter of Beattie, 32 PERB 3023
Representation by an attorney provided by a union is an important right of membership in an employee organization. The Matter of Beattie decision makes the point that an employee organization’s duty to represent a member “in any further pursuit” of his or her claims against an employer, or in defense against any adverse action taken by the employer, ceases if the individual employs a private attorney to handle the matter.
Guilderland Teachers Aide Association member Patricia Beattie filed improper practice charges against the association with PERB in which she alleged that:
1. The association refused to file a complaint charging another school district employee with sexual harassment when asked to do so.
2. The association’s president told Beattie she would lose her job [sic] because she had employed a private attorney to represent her concerning her sexual harassment complaint.
According to the PERB decision, in response to a June 1996 complaint, Rex Trobridge, an association representative, initially determined that Beattie might have been sexually harassed by another school district employee. Trobridge later learned that in January 1996 the employee Beattie named in her complaint alleged the reverse: that Beattie had sexual harassed him. The association advised Beattie that it would provide her with legal representation in both cases.
Before the association’s attorney had filed any complaint with the Division of Human Rights or had met with the school superintendent on her behalf, Beattie hired private counsel. PERB said that at that point in time the association’s duty to represent her ceased.
Meanwhile, a private attorney named Thomas Kenney was employed by the Guilderland School District to investigate both sets of allegations. Kenney found that “each interviewee with knowledge of the events covered by the complaints corroborated [the other employee’s] claims [of sexual harassment] and offered no support for Beattie’s claims [of sexual harassment].” Ultimately Beattie was told of Kenney’s findings and was formally reprimanded by the school superintendent.
PERB sustained its administrative law judge’s dismissal of the charges Beattie filed against the association. It ruled that Beattie’s claim that her complaint “was handled in a perfunctory manner” by the association was not supported by the record.
PERB, in a footnote, observed that Association attorney Harold Beyer testified that he intended to pursue Beattie’s complaint with the State Division of Human Rights after exhausting the school district’s sexual harassment procedure.
As to Beattie’s allegation that association president Barbara Coogan violated the Taylor Law when she commented that “Beattie was crazy to hire a private attorney...,” PERB said that “there is simply nothing improper in the timing or content” of the statement.
PERB said that it viewed Cooper’s statement as “merely an expression of [her] incredulity that a union member would choose not to utilize the counsel provided by the union, at no charge, and instead choose to pay a private attorney.”
Such a statement, said PERB, in no way violated the Taylor Law since it was an expression of an opinion by Cooper, and as such, “is not actionable.
NYPPL
Summaries of, and commentaries on, selected court and administrative decisions and related matters affecting public employers and employees in New York State in particular and possibly in other jurisdictions in general.
ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS
November 02, 2010
Criminal conviction may bar teaching if the applicant cannot satisfy the relevant criteria set out in Section 753 of the Correction Law
Criminal conviction may bar teaching if the applicant cannot satisfy the relvant criteria set out in Section 753 of the Correction Law
Arrocha v NYC Bd. of Education, 93 NY2d 361
Sometimes an individual who has been convicted of a crime applies for a license to teach or for employment as a teacher.
The Correction Law protects individuals from unlawful discrimination based on his or her conviction of a crime. In other words, an individual may not be automatically barred from teaching because of his or her previous conviction. Instead, the school board should examine the individual’s application in light of the eight criteria set out in Section 753 of the Correction Law:
a. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
b. The specific duties and responsibilities necessarily related to the license or employment sought.
c. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
d. The time that has elapsed since the occurrence of the criminal offense or offenses.
e. The age of the person at the time of occurrence of the criminal offense or offenses.
f. The seriousness of the offense or offenses.
g. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
h. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.”
In the Arrocha case, the Court of Appeals -- New York’s highest court -- overturned lower courts’ rulings and said the New York City Board of Education properly considered all eight factors when it refused to grant a teaching license to a person with a criminal record.
Jose Luis Arrocha asked the New York City Board of Education for a license to teach high school Spanish in 1996. He noted in his application form that he had been convicted in 1987, at age 36, of criminal sale of a controlled substance (a B felony) for selling a $10 bag of cocaine to an undercover officer, and subsequently served the minimum of a two-to-six year prison term.
Arrocha submitted a certificate of relief from disabilities. Courts have discretion to issue such certificates to ex-convicts, which are intended to remove any automatic bar to employment or licensure (Correction Law Section 701). Arrocha also submitted letters of recommendation attesting to his skill as a teacher.
His application was rejected on the grounds that his criminal conviction was “serious in nature” and that employment as a teacher “would pose a risk to the safety and welfare of the student population and Board of Education employees.”
Arrocha sued, contending that (1) it was arbitrary and capricious of the board to block his application because of a nine-year old conviction, and (2) the board’s decision violated the Correction Law.
The Court of Appeals said that as a general rule, the courts “cannot interfere [with an administrative decision] unless there is no rational basis for the exercise of discretion” by the administrative agency.
The court pointed out that Section 752.1 of the Correction Law allows an employer to reject an applicant without running afoul of the law where “a direct relationship between [the previous criminal offense] and the specific license or employment sought” exists. Also, Section 752.2 allows such a decision where granting the license or employment would “involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” It observed that the school board detected a “direct relationship” and an “unreasonable risk,” and it was reluctant to substitute its judgment for that of the board.
The Court of Appeals said the board appeared fair in its deliberations. The record showed that the board had considered all eight of the factors in reaching its conclusion, balancing elements that favored granting Arrocha a license against others that tended to mitigate against such an action.
The Court of Appeals concluded that the board was not obligated to rebut the presumption of Arrocha’s rehabilitation and was entirely justified in considering the nature and seriousness of this particular crime, a B felony cocaine sale “committed by Arrocha at the mature age of 36...” The court said Arrocha’s age when apprehended was legitimately viewed as being “of overriding significance when issuing a high school teaching license.”
The decision suggests that it is consistent with public policy of New York State to refuse to employ a person convicted of drug dealing as a teacher. Support for this view may be found in Section 3020-a of the Education Law.
Section 3020-a(2)(b) bars the suspension without pay of a teacher against whom disciplinary charges have been filed, unless otherwise permitted under an alternate disciplinary procedure negotiated pursuant to the Taylor Law, except in cases where the individual has been convicted of a felony involving illegal drugs. The inclusion of this exception suggests the legislature is deeply troubled by the prospect of schoolchildren being exposed to teachers with felony drug convictions. Section 3020-a(2)(b) also allows a school district or BOCES to suspend a teacher against whom disciplinary charges have been filed without pay if he or she has been convicted of a felony involving the physical or sexual abuse of a minor or a student.
NYPPL
Arrocha v NYC Bd. of Education, 93 NY2d 361
Sometimes an individual who has been convicted of a crime applies for a license to teach or for employment as a teacher.
The Correction Law protects individuals from unlawful discrimination based on his or her conviction of a crime. In other words, an individual may not be automatically barred from teaching because of his or her previous conviction. Instead, the school board should examine the individual’s application in light of the eight criteria set out in Section 753 of the Correction Law:
a. The public policy of this state, as expressed in this act, to encourage the licensure and employment of persons previously convicted of one or more criminal offenses.
b. The specific duties and responsibilities necessarily related to the license or employment sought.
c. The bearing, if any, the criminal offense or offenses for which the person was previously convicted will have on his fitness or ability to perform one or more such duties or responsibilities.
d. The time that has elapsed since the occurrence of the criminal offense or offenses.
e. The age of the person at the time of occurrence of the criminal offense or offenses.
f. The seriousness of the offense or offenses.
g. Any information produced by the person, or produced on his behalf, in regard to his rehabilitation and good conduct.
h. The legitimate interest of the public agency or private employer in protecting property, and the safety and welfare of specific individuals or the general public.”
In the Arrocha case, the Court of Appeals -- New York’s highest court -- overturned lower courts’ rulings and said the New York City Board of Education properly considered all eight factors when it refused to grant a teaching license to a person with a criminal record.
Jose Luis Arrocha asked the New York City Board of Education for a license to teach high school Spanish in 1996. He noted in his application form that he had been convicted in 1987, at age 36, of criminal sale of a controlled substance (a B felony) for selling a $10 bag of cocaine to an undercover officer, and subsequently served the minimum of a two-to-six year prison term.
Arrocha submitted a certificate of relief from disabilities. Courts have discretion to issue such certificates to ex-convicts, which are intended to remove any automatic bar to employment or licensure (Correction Law Section 701). Arrocha also submitted letters of recommendation attesting to his skill as a teacher.
His application was rejected on the grounds that his criminal conviction was “serious in nature” and that employment as a teacher “would pose a risk to the safety and welfare of the student population and Board of Education employees.”
Arrocha sued, contending that (1) it was arbitrary and capricious of the board to block his application because of a nine-year old conviction, and (2) the board’s decision violated the Correction Law.
The Court of Appeals said that as a general rule, the courts “cannot interfere [with an administrative decision] unless there is no rational basis for the exercise of discretion” by the administrative agency.
The court pointed out that Section 752.1 of the Correction Law allows an employer to reject an applicant without running afoul of the law where “a direct relationship between [the previous criminal offense] and the specific license or employment sought” exists. Also, Section 752.2 allows such a decision where granting the license or employment would “involve an unreasonable risk to property or to the safety or welfare of specific individuals or the general public.” It observed that the school board detected a “direct relationship” and an “unreasonable risk,” and it was reluctant to substitute its judgment for that of the board.
The Court of Appeals said the board appeared fair in its deliberations. The record showed that the board had considered all eight of the factors in reaching its conclusion, balancing elements that favored granting Arrocha a license against others that tended to mitigate against such an action.
The Court of Appeals concluded that the board was not obligated to rebut the presumption of Arrocha’s rehabilitation and was entirely justified in considering the nature and seriousness of this particular crime, a B felony cocaine sale “committed by Arrocha at the mature age of 36...” The court said Arrocha’s age when apprehended was legitimately viewed as being “of overriding significance when issuing a high school teaching license.”
The decision suggests that it is consistent with public policy of New York State to refuse to employ a person convicted of drug dealing as a teacher. Support for this view may be found in Section 3020-a of the Education Law.
Section 3020-a(2)(b) bars the suspension without pay of a teacher against whom disciplinary charges have been filed, unless otherwise permitted under an alternate disciplinary procedure negotiated pursuant to the Taylor Law, except in cases where the individual has been convicted of a felony involving illegal drugs. The inclusion of this exception suggests the legislature is deeply troubled by the prospect of schoolchildren being exposed to teachers with felony drug convictions. Section 3020-a(2)(b) also allows a school district or BOCES to suspend a teacher against whom disciplinary charges have been filed without pay if he or she has been convicted of a felony involving the physical or sexual abuse of a minor or a student.
NYPPL
November 01, 2010
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
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
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
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
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CAUTION
Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL.
For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf.
Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
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NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard.
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