ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

December 08, 2010

Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"

Complimentary Webinar - Assessing the Risks of Moving to "The Cloud"
Source: Virtual LegalTech

A one-hour webinar entitled, "Addressing and Assessing the Risks of Moving to the Cloud," will offered by Virtual LegalTech on December 14, 2010 from 1:30 – 2:30 PM ET.

The webinar will discuss the merits and pitfalls of the cloud, examining the issues surrounding chain of custody, legal hold and review capabilities in the event of an e-discovery request and how well will privacy be maintained.

Participants in the webinar are eligible for CLE in certain jurisdictions.*

Registration is complimentary. Follow this link to register.

The full schedule for these CLE accredited sessions* at Virtual LegalTech on December 14, 2010 follows:

9:00 – 10:00 am ET – Information Governance: Managing your Information to Reduce the Costs of Discovery

9:30 – 10:30 am ET – Ethical and Privilege Issues for Pharmaceutical Whistleblowers Counsel

10:00 – 11:00 am ET – Facing the Legal Dangers of Social Media1

2:15 – 1:15 pm ET – Frontiers of E-Discovery: What you Need to Know about Predictive Coding

1:30 – 2:30 pm ET – Addressing and Assessing the Risks of Moving to the Cloud

3:00 - 4:00 pm ET – Ethical Considerations in the New Era of Whistleblower Claims Under Dodd-Frank and Other Statutes

3:45 – 4:45 pm ET – Back to the Future: The Most Important 2020 E-Discovery Cases, and a Look Ahead to 2011

If you have additional CLE questions, please contact Virtual LegalTech at 212.457.7912 or via e-mail at ljackson@alm.com .

* Complimentary CLE is approved by the responsible authorizing agencies in New York, California and Illinois. Approval of CLE credit is pending in Florida.

Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defense

Disciplinary charges must sufficiently specific so as to permit the accused to prepare his or her defense
Wolfe v Kelly, 2010 NY Slip Op 08847, decided on December 2, 2010, Appellate Division, First Department

Eric Wolfe, a New York City Police Department detective, was served with disciplinary charges alleging that He was guilty of perjury and the confiscation of drugs and money for personal gain involving Wolfe’s “stopping unidentified individuals in unspecified locations and confiscating unspecified amounts of narcotics and cash for his own personal gain on four occasions that occurred on unspecified dates at some time during a 24-month period between January 1998 and December 1999.”

Terminated from his position, Wolfe contended that he was denied due process of law, and that the lack of specificity in the charges prevented him from preparing any type of defense other than offering a general denial of any wrongdoing.

The Appellate Division, noting that Wolfe’s disciplinary hearing was held some six to eight years after the alleged acts of misconduct occurred, agreed.

Specification 1 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals who were traveling in cabs and confiscated, without affecting [sic] an arrest and for personal monetary gain, a quantity of heroin from one, and a quantity of prescription drugs from the other."

Specification 2 alleged that "on two separate occasions between January 1998 and December 1999," Wolfe "stopped two individuals and confiscated, for personal monetary gain, a quantity of United States currency."

Specification 3 alleged that on or about and between April 23, 1998, and December 17, 1998, Wolfe testified falsely while under oath during an official court proceeding, in violation of Penal Law §210.15.

The Appellate Division explained that “It is well settled that the principles of due process applicable to criminal trials apply to government administrative proceedings, citing Matter of Murray v Murphy, 24 NY2d 150” and that the requirements of due process of law applied here because Wolfe has a constitutionally protected property interest in continued public employment.

Further, said the court, due process requires that the accused employee be provided with the notice of the charges that are "reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him . . . and to allow for the preparation of an adequate defense," citing Matter of Block v Ambach, 73 NY2d 323.
While the specificity of the notice of charges required varies from case to case, but it must be specific enough to give actual notice to the party being charged.

The Appellate Division agreed with Wolfe that indicating a general time frame that spanned two entire years was not reasonably specific so as to satisfy due process requirements.*

The Appellate Division characterized the Department’s rebuttal of Wolfe’s claims to the effect that Wolfe could have offered an alibi defense by testifying about "any times during those two years when . . . he was not partners with [New York City police officers Julio] Vasquez or [Thomas] Rachko"** as “an incomprehensible — and inane — argument, and one that impermissibly shifts the burden of proof” to Wolfe.

In addition, the court commented that:

Equally incomprehensible is that, in denying petitioner's motion to dismiss for violation of due process, the ADC stated that "the unique nature of events alleged, the places where the misconduct occurred and the witnesses present, provided the defense with ample opportunity to prepare." The alleged incidents could only be assumed as "unique" if [Wolfe] was, indeed, guilty as charged. Otherwise, as the record reflects, there was nothing at all unusual or "unique" about any of the circumstances surrounding the alleged misconduct.

Annulling the Commissioner’s determination as to Specifications 1 and 2, the Appellate Division then rejected Wolfe’s arguments with respect to Specification 3 “given the low threshold in a substantial evidence analysis” and affirmed the Commissioner's determination that Wolfe was guilty of Specification 3.

As the penalty imposed on Wolfe, termination from his position, the court remanded the matter to the Department for its reconsideration based the court's annulling Specifications 1 and 2.

* The Appellate Division said that Wolfe’s alleged misconduct in specifications one and two applied to three or four discrete incidents and was therefore “not an offense of an ongoing/continuing nature.”

** In November 2003, Vasquez and Rachko were arrested for the theft of $169,000 from a narcotics merchant who was under federal surveillance. Both subsequently entered into cooperation agreements with federal authorities, the terms of which required them "to testify at any proceeding in the Eastern District of New York or elsewhere as requested by the [U.S. Attorney's] Office." They were required to testify at Wolfe’s hearing. The decision notes that “In exchange for their testimony, Vasquez and Rachko were given the possibility of lighter sentences, and the Manhattan District Attorney's office agreed not to prosecute them for any crimes they may have committed in New York County. Both former officers were facing terms of life imprisonment at the time of petitioner's administrative hearing but had not been sentenced.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_08847.htm

Placement on a preferred list

Placement on a preferred list
Bratge v Stockbridge Valley CSD, Decision of the Commissioner of Education #14454

The Bratge case demonstrates the importance of complying with all statutory and contractual procedures relevant to personnel actions.

The Stockbridge Valley Central School District appointed Katrina Bratge as an Assistant Building Principal/Guidance Counselor [K-12]. Bratge’s appointment was subject to a three-year probationary period.

In March 1999 School Superintendent Charles Stratton met with Bratge. According to Bratge, the superintendent told her that the district intended to eliminate her position in favor of creating a new full-time guidance counselor position and converting a part-time business administrator position to a full-time position.

Stratton, on the other hand, said that he had told Bratge that he intended to terminate her probationary employment but that she would be allowed to resign rather than be terminated.

In August 1999 Bratge wrote to the school board indicating that she did not intend to resign her position and requested it place her name on the preferred eligibility list for appointment as a guidance or administrative position should one become available in accordance with Sections 2510(3) and 3013(3) of the Education Law.

In response, the district wrote to Bratge advising her that because she had voluntarily resigned from her position and had returned to a position with the Rome City School District ... she had no recall rights. Bratge wrote the district to clarify the events that had led to her asking to be placed on a preferred list and repeated her request. When the district failed to act, Bratge asked the Commissioner to order it to place her on a preferred list.

Although the Commissioner ruled that Bratge’s appeal had to be dismissed because it was untimely, he elected to comment on the merits of her appeal.

The Commissioner pointed out that the problem resulted because the district did not provide Bratge with a clear and unambiguous notice of its intentions. Although the district claims that Bratge agreed to resign and asked for her letter of resignation, it never actually received a written resignation from her.

Despite not having received Bratge’s written resignation, the Commissioner noted, the district did not take the procedural steps required to terminate her probationary employment.* This, according to the Commissioner, left Bratge unsure of her exact status and the district believing that the position was vacant as of the beginning of the 1999-2000 school year.

The Commissioner also took the opportunity to point out that personnel decisions must comply with all applicable legal and contractual requirements. In the event the district provides an employee with an option of resigning in lieu of termination, it must comply with all statutory and contractual notification requirements if it then wishes to terminate an employee who does not voluntarily submit his or her written resignation.

One issue not addressed by the Commissioner: assuming that Bratge had a right to have her name place on a preferred list, would her returning to a position with the Rome City School District have any impact on her status on such a list?

Here are some points to keep in mind regarding preferred lists:

1. Typically the most senior individual on the list may be passed over or, under certain circumstances, have his or her name removed from the list, only if he or she actually declines the appointment.

2. The name of an individual may not be removed from a preferred list if he or she merely declines appointment to a different position for which certification of the preferred list was not mandated or deemed appropriate.

3. The individual is not required to seek information concerning the existence of any vacancy for which he or she could be certified.

4. While an appointing authority is not required to fill a vacant position, if it elects to do so, it must use the appropriate preferred list if one exists. (Under certain circumstances, a public employer may be required to use other types of preferred lists such as a special military list.)

5. If an individual accepts other employment, his or her name is to remain on the preferred list until it may otherwise be lawfully removed. For example, Jones is laid off from Position A and subsequently accepts a position to a lower rank position for which the preferred list was certified. If Position A is reestablished and Jones is eligible for certification from the preferred list and is the most senior person on the list, Jones must be certified for appointed to the newly created position.

* The fact that the district did not take the procedural steps required to terminate Bratge’s probationary employment suggests that had Bratge filed a timely appeal the Commissioner might have found that she had attained tenure by estoppel.
____________________________________

For information about PELP's electronic handbook Layoff, Preferred Lists and Reinstatement of public employees in New York, go to: http://nylayoff.blogspot.com/
____________________________________
NYPPL

Rejection of an applicant for appointment as a police officer based on “psychological unsuitability”

Rejection of an applicant for appointment as a police officer based on “psychological unsuitability”
Massaro v Mercado, 276 AD2d 445

After being rejected for appointment as a police officer, Louis Massaro filed a complaint with the Division of Human Rights. Massaro contended that the New York Police Department had unlawfully discriminated against him because of his disability. According to the decision, Massaro was rejected for appointment as a police officer of the grounds of psychological unsuitability for the position.

After initially finding probable cause, the State Division of Human Rights [DHR] dismissed Massaro’s compliant without conducting an administrative hearing. Massaro sued in an effort to compel DHR to conduct a hearing, only to have his petition dismissed by State Supreme Court Judge Lottie Watkins.

The Appellate Division affirmed Judge Watkins’ action, holding that DHR “was not required to conduct a hearing simply because it had previously made a probable cause determination in [Massaro’s] favor.”

There was no question that Massaro was rejected after a finding of psychological unsuitability. However, said the court, this is neither a disability within the meaning of the Human Rights Law nor was it perceived as a disability by the Police Department.

As the Division of Human Rights cannot disturb a hiring decision absent a showing that the decision was influenced by unlawful discrimination, the Appellate Division agreed that it should not be required to hold a hearing when it is clear that such a showing cannot be made.
NYPPL

Determining if assigned duties constitute out-of-title work

Determining if assigned duties constitute out-of-title work
CSEA v Angello, App. Div., Third Dept.,

CSEA, representing 128 employees of the Central New York Developmental Disabilities Service Organization serving as Developmental Aide - In Residence [DA-IR9] filed a grievance claiming that such employees were routinely assigned supervisory duties of a SG-12 Developmental Assistant I - In Residence [DAI-IR12] and that such tasks constituted out-of-title work under the relevant Taylor Law contract.

The SG-12 duties allegedly assigned to the SG-9 workers: submit budget reports, purchase requests, maintenance logs, time and attendance sheets, vehicle reports, formulate menus, supervise client recreational activities, provide for subordinate staff training and make decisions concerning the operation of the sleepover residences on a regular basis.

The grievance was denied at all steps of the contract grievance procedure and CSEA appealed. A state supreme court dismissed CSEA’s petition after finding that the duties complained of were not beyond the contemplation of the job description for DA-IR9 nor excessively complex or difficult, that CSEA failed to show that class members spent a significant amount of time at the objectionable tasks. Supreme Court concluded that there was a rational basis for denial of the grievance.

Pointing out that although [o]ut-of-title work, other than on an emergency basis, is prohibited by Section 61.2 of the Civil Service Law, the performance of duties by a grievant which are substantially similar to those set forth in that person’s job description does not constitute out-of-title work, nor does some overlap of the duties of a DA-IR9 employee and the higher grade DAI-IR12 employee.

The Appellate Division affirmed the lower court’s dismissal of CSEA’s petition. Its rationale: CSEA’s main argument that DA-IR9s were routinely assigned supervisory duties of DA1-IR12s is tempered by CSEA’s concession that “... DA-IR9s do not supervise other employees and the tasks of preparing and submitting budget reports, purchase requests and other documents performed by DA-IR9s in their residential settings ... were rationally determined not to be out-of-title work or [constituted a] permissive overlap of the duties of DAI-IR12s who supervise those residences.”
NYPPL

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.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
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; Staff Judge Advocate General, New York Guard [See also https://www.linkedin.com/in/harvey-randall-9130a5178/]. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com