Using tape-recorded testimony in an administrative proceeding

Using tape-recorded testimony in an administrative proceeding
Miller v Howard Safir, App. Div., 259 AD2d 337

John Miller, Jr. challenged the New York City police commissioner’s revocation of his designation as a Special Patrolman. The commissioner had determined that Miller was “unfit for the position of Special Patrolman” following an incident during which Miller assaulted an individual.

The Appellate Division noted that the police commissioner’s determination was supported by substantial evidence, including Miller’s own admission that he knocked down the individual’s door and assaulted her.

However, Miller complained that the determination was based on a tape recording by the individual rather than her giving her personally testifying in the presence of the hearing officer.

The Appellate Division ruled that the tape-recorded evidence, which was sworn testimony, constituted substantial evidence, citing Abdur-Raheem v Mann, 85 NY2d 113 and Butler v Coughlin, 193 AD2d 973 in support of its ruling.
NYPPL

Term appointments of employees in the Classified Service

Term appointments of employees in the Classified Service
Wheeler v Washington Co., 259 AD2d 902

Term appointments are rare in the classified service. The Wheeler case involves such a type of appointment and considers the rights of an incumbent upon the expiration of his or her term of office.

Section 100 of the Highway Law provides that a county Superintendent of Highways is appointed for a four-year term and “may be removed from office for malfeasance or misfeasance before expiration of the term.”*

Kenneth F. Wheeler was initially appointed to the position of Superintendent of Highways for a four-year term in 1987 and was reappointed to an additional four-year term, beginning on January 1, 1993. In 1991, his job title was changed to Superintendent of Public Works. At the conclusion of his term on December 31, 1996, Wheeler was not reappointed but remained as Superintendent until a successor was appointed by the Board of Supervisors on February 3, 1997.

Claiming that his termination was unlawful, Wheeler sued.

According to the decision, Wheeler’s most recent term of office as Superintendent of Public Works commenced on January 1, 1993 and expired on December 31, 1996. The issue, as the Appellate Division saw it, was “whether the rights afforded a permanent, competitive employee under Civil Service Law Section 75 extended to [Wheeler] after the expiration of his term of office.”

Wheeler contended that his position was wrongfully reclassified in 1996 from competitive to “unclassified” or noncompetitive status and that his position did not meet the requirements for “unclassified” status. Relying on his alleged permanent, competitive status in the classified service, Wheeler argued that Section 75 barred his termination except for misconduct or incompetence.

The court said that contrary to Wheeler’s contention, he was not terminated or removed from office but rather, his four-year term pursuant to Highway Law Section 100 merely expired. Since he was not reappointed and his successor had not yet been chosen, the position became vacant at the expiration of his term on December 31, 1996.

However, until his successor took office in February 1996, Wheeler was a holdover and an at-will employee as provided by Section 5 of the Public Officers Law. Therefore, the court concluded, Section 75 was inapplicable and thus Wheeler was not entitled to a review of the County’s decision not to reappoint him after completion of his then current term of office.

As to the question of whether Wheeler’s position was wrongfully reclassified from the competitive class to another jurisdictional classification, the Appellate Division said that the change in jurisdictional classification was irrelevant since Wheeler was not removed from his position prior to the expiration of his term of office.

The decision implies that a person holding a term appointment authorized by law, unless reappointed, is to be deemed terminated upon the expiration of his or her term “by operation of law” notwithstanding the fact that he or she may otherwise be protected against removal except for incompetence or misconduct by the provisions of Section 75 of the Civil Service Law.

* Among others in the classified service holding a “term appointment” is the personnel officer of a county, suburban town, or a city where such a position has been established. Such a personnel officer is appointed for a term of six years [Section 15.1.(b), Civil Service Law].
NYPPL

Termination of employment pursuant to Civil Service Law Section 73

Termination of employment pursuant to Civil Service Law Section 73
Fallon v Triboro. Bridge & Tunnel Auth., 259 AD2d 377

An individual who is terminated pursuant to Section 71 or Section 73 of the Civil Service Law because of his or her absence caused by a disability may decide to sue the employer, claiming the termination was unlawful.* Such was the situation underlying the Fallon case.

The Triboro Bridge and Tunnel Authority terminated Gregory Fallon pursuant to Section 73 of the Civil Service Law after he had been continuously absent in excess of one year. Fallon sued, claiming various violations of his civil rights under federal and state law. The court found that Fallon had been absent on disability leave for 12 years and had never sought to return to work, with or without accommodation, even after he was denied ordinary disability retirement benefits.

The Authority had told Fallon that it would terminate him if he failed to qualify for ordinary disability retirement. This, said the Appellate Division, constituted “adequate pretermination notice,” commenting that “[i]n the context of Section 73 discharges, [due process] amounts to no more than an opportunity for the employee to present opposing views as to whether [he] has been absent for one year or more and whether [he] was able to return to [his] position.”

As to any post-termination rights, the Authority “in language tracking the provisions of Civil Service Law Section 73,” had written Fallon advising him of his termination and “that he could apply for a medical examination within a year of the termination of his disability, and if found fit, could apply for reinstatement.” This, said the court, was sufficient to meet due process requirements.

The Appellate Division also ruled that Fallon failed to make a prima facie case of disability-based discrimination under the Vocational Rehabilitation Act (29 USC Section 794) because the Authority “is not a recipient of federal funds.”

Fallon also contended that the Authority had violated the Americans with Disabilities Act. The court determined that his ADA rights had not been violated “since he makes no allegation that he requested an accommodation for his alleged disability and was refused.”

In view of this, the court ruled, “there is no ground to conclude that [the Authority] violated the New York State Human Rights Law (Executive Law Section 296), prohibiting disability-based discrimination” and dismissed Fallon’s appeal.

* Section 71 provides for leave in connection with a work-connected injury or disease. Section 73 provides for the termination of an individual who is on leave pursuant to Section 72, which mandates leaves of absence in the event an employee is unable to work because of an injury or disease that did not result from a work-related incident.
NYPPL

Maryland Police may not claim a "privacy shield" when making a “traffic stop”

Maryland Police may not claim a "privacy shield" when making a "traffic stop”
Source: AELE Law Enforcement Legal Center, http://www.aele.org/, Reproduced with permission. Copyright © 2010 AELE

”A motorist stopped by two Maryland state troopers recorded his interaction with the officers without informing them he was doing so. The recording included both video and audio. He later posted the recordings on the YouTube website. He was subsequently arrested and then indicted on charges that included, among other things, making the recordings of an oral private conversation.”

The trial judge ruled that the recorded audio exchange between the arrestee and the officers was not a private conversation as intended by the provisions of a state wiretap statute.*

In the words of the court: "There is no expectation of privacy concerning a traffic stop on a public street. The law is clearly established that a traffic stop is not a private encounter."

"Charges concerning making and disseminating the recording were dismissed, while charges concerning traffic violations arising from the same incident will go forward."

"Those of us who are public officials and are entrusted with the power of the state are ultimately accountable to the public. When we exercise that power in public fora, we should not expect our actions to be shielded from public observation." State of Maryland v. Graber, #12-K-10-647 (Circuit Court, Harford County, Md. 2010).”

* The relevant Maryland Statutes, Section 10-402(a)(1) and 10-402(a)(2) of the Courts and Judicial Proceedings Article, provide as follows:

1. Section 10-402(a)(1): Except as otherwise specifically provided in this subtitle it is unlawful for any person to wilfully intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept any wire, oral, or electronic communication."

2. Section 10-402(a)(2) defines oral communication as: "... any conversation or words spoken to or by any person in private conversation."
NYPPL

Unemployment Insurance claims

Unemployment Insurance claims
Prusch v Shenendehowa CSD, 259 AD2d 877, Motion for leave to appeal denied, 93 NY2d 816

As a general rule, criticism of an employee’s job performance by a supervisor or receipt of a negative performance evaluation does not necessarily constitute good cause for leaving employment for the purpose of establishing eligibility for unemployment insurance benefits. The same is true with respect to an individual resigning in anticipation of his or her dismissal.

These are the lessons of the Prusch case.

John E. Prusch was employed by the Shenendehowa Central School District as a teacher of foreign languages. He resigned from his position effective April 25, 1997 and applied for unemployment insurance benefits. Prusch indicated that he resigned because he was “stressed out” and because he had received an unsatisfactory rating on a performance review, which recommended that he not be rehired for the upcoming school year.

The Unemployment Insurance Appeal Board rejected Prusch’s claim, ruling that he was disqualified from receiving benefits because he had voluntarily left his employment without good cause. Prusch appealed only to have the Appellate Division affirm the board’s determination.

Although Prusch alleged that he resigned based upon advice from his psychologist that he quit as soon as possible because of stress caused by his negative evaluation, the court commented that the record indicated that he “nevertheless chose to remain, continuing his employment for another month, and his resignation letter contained no reference to a physician’s recommendation.”
NYPPL