School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education

School employee employed in a classified service position may not appeal adverse disciplinary decision to the Commissioner of Education
Guadagnino v Lancaster CSD, CEd 14080

The Lancaster Central School District filed disciplinary charges against Anthony P. Guadagnino pursuant to Section 75 of the Civil Service Law. The charges alleged that Guadagnino, a custodian, made false, baseless and damaging statements concerning alleged inappropriate conduct by a building principal, the president of the school board and others to various district officials and staff members.

Found guilty of all charges, Guadagnino was dismissed from his position. His appeal to the Erie County Civil Service Commission pursuant to Section 76 of the Civil Service Law was denied.

Guadagnino next filed an appeal with the Commissioner of Education pursuant to Section 310 of the Education Law contending that the school district violated federal and state law protecting “whistle blowers” by terminating him in retaliation for his making and pursuing his allegations of “inappropriate conduct.”

The Commissioner dismissed the appeal for lack of subject matter jurisdiction. He said that with respect to Guadagnino’s claims concerning “whistle blowing” [Civil Service Law Section 75-b], such claims may be asserted as a defense in a Section 75 hearing. However, nothing in the Education Law authorizes an appeal to the Commissioner from disciplinary action taken under Section 75. The Commissioner noted that “it is well established ... that the suspension or termination of classified employees is not an appropriate subject of an appeal brought pursuant to Education Law Section 310.”

As to Guadagnino’s federal claims, the Commissioner pointed out that the federal law cited, 5 USC 1213, is generally applicable to federal employees and those in federally related employment.
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Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement

Comptroller may subpoena employee’s medical records in reviewing employer-initiated application for disability retirement
Burns v NY State and Local Police and Fire Retirement Systems, 258 AD2d 692

Town of Clarkstown police officer Robert Burns was granted Section 207-c benefits after suffering a work-related injury in May 1993. In 1996, the department filed an application for disability retirement with the State and Local Police and Fire Retirement Systems [PFRS] seeking Burns “involuntary retirement from the police force.”*

When PFRS asked Burns to sign a consent form for the release of his medical records for its review, he refused. The Comptroller then issued subpoenas for the production of his medical records to a hospital and to two physicians. Burns attempted to quash the subpoenas on the grounds that the release of his medical records would “violate the physician-patient privilege” of Section 4505 of the Civil Practice Law and Rules. The Appellate Division affirmed a lower court’s ruling that Section 4504 did not protect Burns’ medical records since the Comptroller had the authority to determine applications for retirement benefits and had statutory authority to issue subpoenas.

The Appellate Division said that Burns “affirmatively placed his medical condition in issue and effectively waived the physician-patient privilege” by applying for Section 207-c benefits.

The Court said that “to exempt medical records essential to a determination of whether the disability resulted from an in-service injury would vitiate the purpose of [Section 363-c(c)(2) of the Retirement and Social Security Law], expressly permitting a municipal employer to seek the involuntary retirement of a disabled officer.”

* Both Section 207-a and Section 207-c of the General Municipal Law authorize the employer to file an application for disability retirement on behalf of an individual receiving benefits pursuant to these sections.
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Employee may be disciplined for excessive absence from work

Employee may be disciplined for excessive absence from work
Gradel v Sullivan Co. Public Works, 257 AD2d 972

May an individual who has been authorized to take time off from work be disciplined for “excessive absence” based on an accumulation of “authorized” absences?

The Gradel case involved Section 75 disciplinary charges that were filed against Len Gradel, a Sullivan County sanitation worker. The charges alleged misconduct in the form of excessive absences, as well as poor job performance and insubordination, notwithstanding Gradel’s claim that he was authorized to take the time off.

“[T]he fact that [Gradel] was authorized to take the days off does not preclude a finding of guilt, especially where, as here, [Gradel] was repeatedly informed by memoranda that his pattern of absences was disruptive and burdensome to his employer and co-workers,” the Appellate Division ruled, citing Romano v Town Bd. of Town of Colonie, 200 AD2d 934.

Another issue involved the penalty imposed. Finding Gradel guilty of all of the charges filed against him, a hearing officer recommended that Gradel be suspended without pay for four days and placed on probation for one year.

The county, while agreeing with the hearing officer’s determination as to guilt, imposed the penalty of termination instead of the penalty recommended by the hearing officer. Gradel contended that the penalty imposed was excessive.

The Appellate Division rejected his arguments, holding that there was ample evidence in the record to support the hearing officer’s findings and confirm the county’s decision as to the penalty imposed. The court said that it was “unpersuaded by [Gradel’s] contention that the penalty of termination, which exceed that recommended by the Hearing Officer, was disproportionate to the offenses committed as to shock one’s sense of fairness.”
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Website established for those interested in joining the Cuomo-Duffy administration

Website established for those interested in joining the Cuomo-Duffy administration
Source: Cuomo-Duffy Transition Committee

Interested in joining the Cuomo-Duffy administration?

There is a website where those interested in positions in the Cuomo-Duffy administration may submit their resumes for consideration electronically.

The several transition focus committees will review these resumes and subsequently submit their recommendations to Governor-elect Cuomo and Lieutenant Governor-elect Robert Duffy with respect to staffing key positions with the new administration.

Resumes for all administration positions may be filed at http://www.worksforny.com/.
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Court hearing not available when claims that the appointing authority acted in bad faith are ”conclusory and speculative”

Court hearing not available when claims that the appointing authority acted in bad faith are ”conclusory and speculative”
Matter of Swindell v Antonelli, 2010 NY Slip Op 08346, Decided on November 16, 2010, Appellate Division, First Department

Tajiri Swindell, an employee of the NYC Department of Corrections, was on the promotion list for Captain. When Swindell not appointed as Captain, she initiated an Article 78 action alleging that the decision not to promote her to captain was made in bad faith.

Supreme Court temporarily restrained Department of Correction from making appointments from the new list pending a court hearing.

The Appellate Division vacated the lower court’s order and dismissed Swindell’s petition.

The court said that the Department’s decision, in the light of “the open confidential investigation,” not to promote Swindell was “rational, reasonable, and made in good faith.”

Swindell’s claims of bad faith, said the court, were conclusory and speculative and thus she was not entitled to a judicial review of her claims.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08346.htm
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