Police officer’s association with individuals involved in alleged criminal activity results in dismissal from the position

Police officer’s association with individuals involved in alleged criminal activity results in dismissal from the position
Richardson v Safir, 258 AD2d 328

The Appellate Division upheld the dismissal of New York City police officer Edward Richardson based on a determination that Richardson “knowingly associated with a person he reasonably believed was engaged in criminal activity.”

Richardson was also found guilty of making “false and misleading statements in an official Department investigation.”

The court said that the determination leading to Richardson’s termination was supported by substantial evidence, “including, in particular, [Richardson’s] own testimony in the official investigation.”
NYPPL

Assurance of reemployment of an educator negates his or her eligibility for unemployment insurance benefits between school years

Assurance of reemployment of an educator negates his or her eligibility for unemployment insurance benefits between school years
Huff v Commissioner of Labor, 247 AD2d 734, 257 AD2d 832

In case involving a claim for unemployment insurance benefits, Buffalo City School District teacher’s aide Dennis Huff, Sr. filed an application for unemployment insurance benefits in June 1997 at the end of the 1996-1997 academic year.

Applying the provisions of Section 590.11 of the Labor Law, the Unemployment Insurance Appeals Board ruled that Huff was ineligible for such benefits for the summer of 1997 because the Buffalo City School District had given him a reasonable assurance that he would be rehired on the same terms and conditions of employment for the 1997-1998 school year effective September 1997.

Huff appealed, contending that Section 590.11 did not apply in his situation “because he normally provided services for an educational institution that accepts students year-round.” The Appellate Division, noting that Huff had made the same argument “in prior unsuccessful claims,” observed that the applicable Taylor Law contract covers Huff’s employment only during the academic year -- September through the June next following. The employment of aides for summer school, said the court, “is dictated by entirely different criteria.”
NYPPL

Discontinuation of employer’s cafeteria service a mandatory subject for collective bargaining

Discontinuation of employer’s cafeteria service a mandatory subject for collective bargaining
CSEA Local 1000 & Nassau County, 32 PERB 3005

For at least nine years the Nassau County Medical Center (NCMC) provided food service in its cafeteria between the hours of 2:00 a.m. and 4:00 a.m. When the County unilaterally discontinued providing such service and refused to negotiate its action, CSEA filed an improper practice charge with PERB.

A PERB administrative law judge ruled that Nassau County violated the Taylor Law by acting unilaterally with respect to mandatory subjects of negotiations “without a meritorious defense.” PERB sustained the ruling, pointing out that the cafeteria was open for at least nine years to serve the 200 to 300 employees who worked the midnight shift at NCMC. This, said PERB, affected the employees’ term and conditions of employment since its use by employees “is both an economic fringe benefit, as it avoids any need for employees to eat and drink off premises at higher cost, and it is a matter directly affecting their health, personal comfort and convenience.” PERB told Nassau to reinstate the food service it provided before it closed NCMC’s cafeteria and “to make unit employees whole” to the extent that it can be shown that the closing resulted in their incurring additional expense for food and beverages.

A collateral issue involved the County’s directing the employees to discontinue the use of their personal appliances such as electronic ovens and “heat generating electrical appliances” at their workstations. PERB said that the County’s interest in protecting the patient’s safety overcame the employees’ interest in their having such convenience items available to them at their workstation and dismissed this branch of CSEA’s improper practice charge.
NYPPL

Hearing officer recommends employee’s termination based on circumstantial evidence that was corroborated by other evidence

Hearing officer recommends employee’s termination based on circumstantial evidence that was corroborated by other evidence
NYC Department of Sanitation v O’Neill, OATH Index #2632/10

The New York City Department of Sanitation’s General Order No. 2001-19 addressing “trade waste” prohibits its employees from removing material originating from a home renovation performed by a contractor.*

OATH Administrative Law Judge Alessandra Zorgniotti found that circumstantial evidence,** supported by other evidence, proved the charge brought against Brian O’Neill, a sanitation worker employed by the Department.

Significantly, the ALJ found that a telephone tip from a man who called a Department Superintendent on July 30, 2007, was corroborated by other evidence gathered by the agency such as the caller’s description of the two sanitation workers involved. The descriptions matched O’Neill and his partner, and the caller’s reporting that “he saw these men loading construction debris onto a sanitation truck at a location at the end of [O’Neill’s] route in Brooklyn.”

The Department’s Borough Chief went to the location and he saw a house under renovation with signs of recent construction activity.

Additional circumstantial evidence consisted of the contents of O’Neill’s truck when it was “dumped.” The last material loaded came out first and it included construction debris, including carpet the Borough Chief had seen at the house.

In addition, there was testimony by a supervisor that the tonnage reports for July 30, 2007, for the section indicated that “most trucks picked up between nine and ten tons and that [O’Neill’s] truck was the only truck over thirteen tons” if waste,

Although the ALJ found that there was insufficient evidence to prove O’Neill had accepted a gratuity from anyone in connection with the removal of the “trade waste,” she recommended that O’Neill be terminated in view of his “short tenure and the absence of mitigating circumstances.”

* Even if collected materials have not been generated by a contractor for a fee, the trade waste directive can be violated if a sanitation worker services a residential stop which contains construction debris in excess of six bags, bundles, boxes, and cans. If the material exceeds this six-container limit, the sanitation worker is permitted to complete the collection only by notifying and procuring the approval of his or her supervisor.

** A finding of misconduct may be established in a disciplinary proceeding solely by circumstantial evidence. Dep’t of Sanitation v. Guastafeste, OATH Index No. 658/00, at 10, aff’d, 282 A.D.2d 398

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/10_Cases/10-2632.pdf
NYPPL

Contractor to indemnify the agency for the agency's liabilities only if the liability resulted from activities that were among its contractual duties

Contractor to indemnify the agency for the agency's liabilities only if the liability resulted from activities that were among its contractual duties
Ramos v City of New York, 2010 NY Slip Op 07821, Decided on November 4, 2010, Appellate Division, First Department

Tristar provided security services at the premises pursuant to a contract between it and the City whereby Tristar personnel were to check ID’s of people who worked at the premises, scanning people who did not work there, checking bags for weapons, and patrolling the exterior of the building.

The contract between the City and Tristar required Tristar to provide unarmed and armed uniformed guard services at the City's premises and included a provision that Tristar was to indemnify the City for "claims arising out of or in any way related to this Contract . . . resulting or alleged as resulting from the negligence of the Contractor . . . in its performance of this Contract."

Guillermo Ramos was employed by Tristar as a security guard and was injured while working at premises owned by the City of New York. Ramos claimed that he was directed by an employee of the City, who supervised him at the premises, to turn off the heater/fan that was located in a closet on the main floor of the premises and allegedly received a severe electric shock in so doing. Ramos sued the City and the City commenced a third-party action against Tristar for contractual indemnification.

The Appellate Division dismissed the City’s action seeking indemnification from Tristar, noting that although Tristar had a duty to indemnify the City for Tristar's negligence in the performance of its duties, it was not obligated to indemnify the City for the City’s negligence.

Here, said the court, Ramos’ “injuries arose when he attempted to turn off the switch for the heater/fan which was an activity clearly outside of the scope of his duties as a security guard.”

Accordingly, Tristar was not obligated to indemnify the City as a matter of law as there was no proof that Ramos’ injuries arose from Tristar's breach of a duty of care owed to the City or from the work Tristar performed under its contract with the City.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_07821.htm
NYPPL