Criticism of employee performance serving pursuant to a contract with a private entity
Brackman v City of New York, Supreme Court, [Not selected for publication in the Official Reports]
If a public employee does not have tenure, he or she may be dismissed at any time, for any reason, or for no reason, provided that the termination does not otherwise constitute an unlawful act on the part of the public employer. At best, such an individual may demand, and receive, a name clearing hearing if there has been publication of the alleged disparaging remarks concerning his or her work performance.
Being successful in clearing one’s name via a name-clearing clearing hearing, however, does not entitle the individual to reinstatement to his or her former position.
The Brackman case involved a novel variation of this type of situation -- the rights of a terminated employee of an independent contractor performing work for a public entity.
The contractor, Data Industries, was to perform certain data processing related services for the City of New York. City officials were extremely critical of the work being done under the contract by Brackman, one of Data Industries’ employees.
City officials complained that Brackman was not performing satisfactorily and did not provided the services the City expected. This criticism resulted in Brackman’s dismissal from the project and from Data Industries.
Brackman sued for damages for the alleged defamation arising in the context of his work as a computer consultant for New York City’s Department of Employment. The court granted the City motion to dismiss Brackman’s petition for two reasons:
1. Brackman had signed a release in exchange for a sum of money when he was terminated by Data Industries covering “all actions, causes of action [and] suits [...] by reason of any matter, cause or thing whatsoever against Data Industries, the City of New York, the Department of Employment and its Management Information System Division;” and
2. The allegedly defamatory remarks are “quintessential expressions of opinion,” which are fully protected by the state and federal constitutions.
Justice Stallman said that all of the statements concerning Brackman’s abilities and his performance on the project use loose, figurative language, and none of the statements are objectively capable of being characterized as true or false.
Citing Williams v Varig Brazilian Airlines, 169 AD2d 434, the court said that “Disparaging remarks concerning a person’s job performance are routinely held to be constitutionally protected opinion.”
Dismissing Brackman’s petition, Justice Stallman said that as an at-will employee in the private sector there was no tort liability for wrongful or abusive discharge.
The lesson gleaned from Brackman is that as an at-will employee -- the private sector equivalent of a provisional or temporary public employee -- Brackman did not even have a right to a name clearing hearing, much less the right to sue the City or it officials for damages after being fired by the Data Industries.
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
December 29, 2010
Determining membership in a negotiating unit for the purposes of collective bargaining
Determining membership in a negotiating unit for the purposes of collective bargaining
Rockland County v Federation of Teachers Local 1817, 275 AD2d 413
Clearly the incumbents of positions in the negotiating unit are covered by collective bargaining contracts negotiated pursuant to the Taylor Law.
Is an agreement between the parties to include a particular individual in the negotiating unit if the position filled by that individual is not included in the negotiating unit enforceable?
This was one of the issues considered by the Appellate Division when Rockland County attempted to obtain a stay of arbitration of a grievance demanded by an employee of the Rockland County Community College, Patricia Harnett.
Harnett was employed by the college in a position funded by a grant. Because she was paid from grant monies, she was excluded from the negotiating unit represented by Local 1817. Therefore her employment was not covered by the collective bargaining agreement between the college and Local 1817.
According to the Local, however, Harnett and the president of the college had agreed that she should be included as a member of the negotiating unit.* This, the Local argued, meant that she was covered by the Taylor Law agreement between the college and Local 1817.
Harnett’s status became an issue when she filed a complaint under the grievance procedure set out in the collective bargaining agreement and ultimately demanded that the issue be submitted to arbitration.
Rockland objected and attempted to obtain a stay of arbitration pursuant to Section 7503 of the Civil Practice Law and Rules. A State Supreme Court justice ruled that Harnett’s grievance had to be submitted to arbitration.
The Appellate Division reversed, rejecting Local 1817’s argument that Harnett was covered by the collective bargaining agreement as a result of a settlement entered into by Harnett and the president of Rockland Community College.
The Appellate Division characterized the settlement as ultra vires since it had not been ratified by the college’s board of trustees.
In commercial law, the term ultra vires is used to describe acts beyond the scope of the power of a corporation. Here the Appellate Division used the term to describe the absence of authority on the part of the college president to agree to include Harnett within the negotiating unit without specific approval by the college’s board of trustees.
This suggests that the Appellate Division would have been less troubled by Local 1817’s argument had the college trustees ratified the agreement between the college president and Harnett.
In the alternative, assume that the agreement between the president and Harnett provided that the terms and conditions of her employment were to be determined by the collective bargaining contract instead of deeming her to be a member of the collective bargaining unit, i.e., the provisions of the collective bargaining agreement were incorporated by reference into her contract of employment by the college. If such a contract of employment was duly ratified by the appointing authority, Harnett might have been able to sue for breach of contract when her demand for arbitration was rejected by the college.
* Presumably Harnett’s position would have been included in the negotiating unit but for the source of funding for the item.
Rockland County v Federation of Teachers Local 1817, 275 AD2d 413
Clearly the incumbents of positions in the negotiating unit are covered by collective bargaining contracts negotiated pursuant to the Taylor Law.
Is an agreement between the parties to include a particular individual in the negotiating unit if the position filled by that individual is not included in the negotiating unit enforceable?
This was one of the issues considered by the Appellate Division when Rockland County attempted to obtain a stay of arbitration of a grievance demanded by an employee of the Rockland County Community College, Patricia Harnett.
Harnett was employed by the college in a position funded by a grant. Because she was paid from grant monies, she was excluded from the negotiating unit represented by Local 1817. Therefore her employment was not covered by the collective bargaining agreement between the college and Local 1817.
According to the Local, however, Harnett and the president of the college had agreed that she should be included as a member of the negotiating unit.* This, the Local argued, meant that she was covered by the Taylor Law agreement between the college and Local 1817.
Harnett’s status became an issue when she filed a complaint under the grievance procedure set out in the collective bargaining agreement and ultimately demanded that the issue be submitted to arbitration.
Rockland objected and attempted to obtain a stay of arbitration pursuant to Section 7503 of the Civil Practice Law and Rules. A State Supreme Court justice ruled that Harnett’s grievance had to be submitted to arbitration.
The Appellate Division reversed, rejecting Local 1817’s argument that Harnett was covered by the collective bargaining agreement as a result of a settlement entered into by Harnett and the president of Rockland Community College.
The Appellate Division characterized the settlement as ultra vires since it had not been ratified by the college’s board of trustees.
In commercial law, the term ultra vires is used to describe acts beyond the scope of the power of a corporation. Here the Appellate Division used the term to describe the absence of authority on the part of the college president to agree to include Harnett within the negotiating unit without specific approval by the college’s board of trustees.
This suggests that the Appellate Division would have been less troubled by Local 1817’s argument had the college trustees ratified the agreement between the college president and Harnett.
In the alternative, assume that the agreement between the president and Harnett provided that the terms and conditions of her employment were to be determined by the collective bargaining contract instead of deeming her to be a member of the collective bargaining unit, i.e., the provisions of the collective bargaining agreement were incorporated by reference into her contract of employment by the college. If such a contract of employment was duly ratified by the appointing authority, Harnett might have been able to sue for breach of contract when her demand for arbitration was rejected by the college.
* Presumably Harnett’s position would have been included in the negotiating unit but for the source of funding for the item.
New York City Civil Service Commission’s ruling applicant qualified controls
New York City Civil Service Commission’s ruling applicant qualified controls
City of New York v Civil Service Commission, Supreme Court, New York County, Docket Number: 0401706 [Not selected for publication in the Official Reports]
The New York Policy Department (NYPD) challenged a determination by the New York City Civil Service Commission holding that Hope Mahoney was qualified for appointment to the position of police officer with the Department.
Having passed the written test, Mahoney was also required to submit to a psychological examination to determine her fitness for duty as a police officer. After conducting an evaluation, the Police Department’s psychologist concluded that Mahoney was “psychologically unsuited for police work.”
Mahoney then saw her own her medical expert, Dr. Richard E. Ovens. Ovens conducted his own psychological evaluation of Mahoney. Dr. Ovens’ evaluation described Mahoney as “possess[ing] the requisite intellectual abilities, emotional resources and coping skills to meet the demands and stresses associated with the unique duties of a . . . police officer.”
In response to this, the Police Department’s expert, Dr. Arko, reviewed Dr. Ovens’ evaluation. Dr. Arko’s conclusion: Mahoney should be rejected for appointment to the position of police officer based on “poor judgment and impulse control” as evidenced by her two job terminations, and her driving record. NYPD forwarded Dr. Arko’s report to the New York City Civil Service Commission (CSC).
After reviewing all the records submitted to it, the CSC decided that a hearing was appropriate in order to resolve the factual issues related to Mahoney’s disqualification. Ultimately the CSC issued a decision reversing the NYPD’s disqualification of Mahoney, and advised NYPD that
“having reviewed the entire record and considering the arguments and testimony presented at the hearing, we conclude as follows. . . Having heard from both experts, we find that Dr. Ovens [sic] evaluation and assessment of the appellant was accurate and therefore more credible.”
NYPD filed an Article 78 petition challenged the decision of the CSC, contending that CSC’s determination was irrational in crediting the testimony of Dr. Oven’s over the testimony of Dr. Chiu-Palmer, and the other medical experts employed by NYPD.
According to the decision, “Dr. Ovens conducted a more comprehensive evaluation of Mahoney than Chiu-Palmer,” and that CSC rationally credited Dr. Ovens’ testimony over that of Chiu Palmer’s “based on his stronger educational background in psychology and his thirty years experience as a police officer.”
The court pointed out that the CSC is empowered by Section 813(d)* of the New York City Charter “to hear and decide appeals of petitioners’ determinations as to employment eligibility.” However, said the court, although CSC’s determinations of such appeals are subject to judicial review under Article 78, in such instances review by the court “is limited to the question of whether the decision of the administrative agency was arbitrary or capricious or irrational.”
In addition, citing Smith v. City of New York, 228 AD2d 381, leave to appeal denied, 89 NY2d 806, the court commented that “it has been held that “wide discretion is afforded to civil service commissions in determining fitness of candidates. The exercise of that discretion is to be sustained unless it has been clearly abused.”
Accordingly, said the court, “Under this standard, there is no basis for overturning the CSC determination that Mahoney is qualified to be a police officer. Specifically, it cannot be said that the CSC’s decision to credit the opinion of Dr. Ovens over that of Chiu-Palmer was irrational in light of Ovens’ substantial qualifications, including his doctorate in clinical psychology, his thirty years of experience as a police officer, and his practice which involves the treatment of traumatized police officers.”
NYPD’s appeal was dismissed and the Civil Service Commission’s determination upheld.
* The NY City Charter provides that: the civil service commission shall have the power to hear and determine appeals by any person aggrieved by any action or determination of the commissioner. . . and may affirm, modify or reverse such action or determination when there exists a rational basis in the record to support the decision.
City of New York v Civil Service Commission, Supreme Court, New York County, Docket Number: 0401706 [Not selected for publication in the Official Reports]
The New York Policy Department (NYPD) challenged a determination by the New York City Civil Service Commission holding that Hope Mahoney was qualified for appointment to the position of police officer with the Department.
Having passed the written test, Mahoney was also required to submit to a psychological examination to determine her fitness for duty as a police officer. After conducting an evaluation, the Police Department’s psychologist concluded that Mahoney was “psychologically unsuited for police work.”
Mahoney then saw her own her medical expert, Dr. Richard E. Ovens. Ovens conducted his own psychological evaluation of Mahoney. Dr. Ovens’ evaluation described Mahoney as “possess[ing] the requisite intellectual abilities, emotional resources and coping skills to meet the demands and stresses associated with the unique duties of a . . . police officer.”
In response to this, the Police Department’s expert, Dr. Arko, reviewed Dr. Ovens’ evaluation. Dr. Arko’s conclusion: Mahoney should be rejected for appointment to the position of police officer based on “poor judgment and impulse control” as evidenced by her two job terminations, and her driving record. NYPD forwarded Dr. Arko’s report to the New York City Civil Service Commission (CSC).
After reviewing all the records submitted to it, the CSC decided that a hearing was appropriate in order to resolve the factual issues related to Mahoney’s disqualification. Ultimately the CSC issued a decision reversing the NYPD’s disqualification of Mahoney, and advised NYPD that
“having reviewed the entire record and considering the arguments and testimony presented at the hearing, we conclude as follows. . . Having heard from both experts, we find that Dr. Ovens [sic] evaluation and assessment of the appellant was accurate and therefore more credible.”
NYPD filed an Article 78 petition challenged the decision of the CSC, contending that CSC’s determination was irrational in crediting the testimony of Dr. Oven’s over the testimony of Dr. Chiu-Palmer, and the other medical experts employed by NYPD.
According to the decision, “Dr. Ovens conducted a more comprehensive evaluation of Mahoney than Chiu-Palmer,” and that CSC rationally credited Dr. Ovens’ testimony over that of Chiu Palmer’s “based on his stronger educational background in psychology and his thirty years experience as a police officer.”
The court pointed out that the CSC is empowered by Section 813(d)* of the New York City Charter “to hear and decide appeals of petitioners’ determinations as to employment eligibility.” However, said the court, although CSC’s determinations of such appeals are subject to judicial review under Article 78, in such instances review by the court “is limited to the question of whether the decision of the administrative agency was arbitrary or capricious or irrational.”
In addition, citing Smith v. City of New York, 228 AD2d 381, leave to appeal denied, 89 NY2d 806, the court commented that “it has been held that “wide discretion is afforded to civil service commissions in determining fitness of candidates. The exercise of that discretion is to be sustained unless it has been clearly abused.”
Accordingly, said the court, “Under this standard, there is no basis for overturning the CSC determination that Mahoney is qualified to be a police officer. Specifically, it cannot be said that the CSC’s decision to credit the opinion of Dr. Ovens over that of Chiu-Palmer was irrational in light of Ovens’ substantial qualifications, including his doctorate in clinical psychology, his thirty years of experience as a police officer, and his practice which involves the treatment of traumatized police officers.”
NYPD’s appeal was dismissed and the Civil Service Commission’s determination upheld.
* The NY City Charter provides that: the civil service commission shall have the power to hear and determine appeals by any person aggrieved by any action or determination of the commissioner. . . and may affirm, modify or reverse such action or determination when there exists a rational basis in the record to support the decision.
December 28, 2010
Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideas
Public Personnel Administrators invited to join iZoca, a free service on the Internet to exchange information and ideas
Personnel administrators and other professionals serving with State and municipal departments and agencies interested in exchanging ideas and in discussing selected court and administrative decisions and related matters affecting public employers and employees in New York State are invited to become members of iZoca* and join the Public Personnel Administrators group.
The initial PPA posting is at: http://www.izoca.com/groups/public-personnel-administrators/discussions/33670
iZoca allows members to connect with both their communities and their groups. The platform provides members an opportuntiy to share information and exchange ideas.
In addition, iZoca provides powerful group features that help keep you informed and engaged with all your group activities. Once your free account is created, you will be able to join Public Personnel Administrators and other groups, or even start your own membership group in addition to those already available.
To become a member of the Public Personnel Administrators group, go to:
http://www.izoca.com/join/groups/public-personnel-administrators
* The name iZoca is derived from the Spanish word “zocalo” which is referred to as a square or plaza in Mexico where people congregate. iZoca was founded in 2007 and is located in New York's Tech Valley Region.
Personnel administrators and other professionals serving with State and municipal departments and agencies interested in exchanging ideas and in discussing selected court and administrative decisions and related matters affecting public employers and employees in New York State are invited to become members of iZoca* and join the Public Personnel Administrators group.
The initial PPA posting is at: http://www.izoca.com/groups/public-personnel-administrators/discussions/33670
iZoca allows members to connect with both their communities and their groups. The platform provides members an opportuntiy to share information and exchange ideas.
In addition, iZoca provides powerful group features that help keep you informed and engaged with all your group activities. Once your free account is created, you will be able to join Public Personnel Administrators and other groups, or even start your own membership group in addition to those already available.
To become a member of the Public Personnel Administrators group, go to:
http://www.izoca.com/join/groups/public-personnel-administrators
* The name iZoca is derived from the Spanish word “zocalo” which is referred to as a square or plaza in Mexico where people congregate. iZoca was founded in 2007 and is located in New York's Tech Valley Region.
Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character
Court sustains Commissioner of Education’s determination suspending educator’s certification for one year after finding he lacked good moral character
Matter of Mudge v Huxley, 2010 NY Slip Op 09311, Decided on December 16, 2010, Appellate Division, Third Department
Randy Mudge, a certified as a teacher and school administrator, requested a hearing in response to a notice from the State Department of Education that a substantial question existed with respect to his moral character.
The hearing panel determined that Mudge “lacked the good moral character necessary to be a teacher in New York State” and recommended suspension of his certificates for one year.
Mudge appealed and although the Commissioner* “modified the findings of the panel," she sustained the one-year suspension of his certificates. Mudge then filed a petition in Supreme Court challenging the Commissioner’s decision.
The Appellate Division said that its review of the Commissioner’s ruling “in this context is limited to whether it is arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion.”**
According to the decision by the Appellate Division, Mudge admitted that he had had sexual intercourse with two former students. Finding a “pattern of behavior in affording the girls preferential treatment while they were students, including the pre-graduation trips to “Mets games,” [the Commissioner] concluded that Mudge had groomed them for a sexual relationship while they were students and then, shortly after they graduated, exploited the relationships that he had cultivated.”
The Appellate Division rejected Mudge’s argument that the Commissioner’s conclusion regarding “grooming of the students prior to graduation is irrational.”
Although Mudge argued that each of the various factors considered by the Commissioner is innocent by itself, and his character is unassailable, the court said that it could not agree. It said that “Given the evidence of [Mudge’s] pattern of behavior with both girls, [the Commissioner’s] determination that [Mudge] was engaged in grooming and that he lacks the requisite moral character to be a teacher in this state is supported by a rational basis.
The Appellate Division then confirmed the Commissioner’s determination and dismissed Mudge’s appeal.
* Interim Commissioner of Education Carole F. Huxley
** The Appellate Division noted that Supreme Court’s transfer of Mudge’s appeal to it “was improper because the appropriate standard of review is not whether the determination is supported by substantial evidence,” it said that it would retain the proceeding and resolve the issues “in the interest of judicial economy.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09311.htm
Matter of Mudge v Huxley, 2010 NY Slip Op 09311, Decided on December 16, 2010, Appellate Division, Third Department
Randy Mudge, a certified as a teacher and school administrator, requested a hearing in response to a notice from the State Department of Education that a substantial question existed with respect to his moral character.
The hearing panel determined that Mudge “lacked the good moral character necessary to be a teacher in New York State” and recommended suspension of his certificates for one year.
Mudge appealed and although the Commissioner* “modified the findings of the panel," she sustained the one-year suspension of his certificates. Mudge then filed a petition in Supreme Court challenging the Commissioner’s decision.
The Appellate Division said that its review of the Commissioner’s ruling “in this context is limited to whether it is arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion.”**
According to the decision by the Appellate Division, Mudge admitted that he had had sexual intercourse with two former students. Finding a “pattern of behavior in affording the girls preferential treatment while they were students, including the pre-graduation trips to “Mets games,” [the Commissioner] concluded that Mudge had groomed them for a sexual relationship while they were students and then, shortly after they graduated, exploited the relationships that he had cultivated.”
The Appellate Division rejected Mudge’s argument that the Commissioner’s conclusion regarding “grooming of the students prior to graduation is irrational.”
Although Mudge argued that each of the various factors considered by the Commissioner is innocent by itself, and his character is unassailable, the court said that it could not agree. It said that “Given the evidence of [Mudge’s] pattern of behavior with both girls, [the Commissioner’s] determination that [Mudge] was engaged in grooming and that he lacks the requisite moral character to be a teacher in this state is supported by a rational basis.
The Appellate Division then confirmed the Commissioner’s determination and dismissed Mudge’s appeal.
* Interim Commissioner of Education Carole F. Huxley
** The Appellate Division noted that Supreme Court’s transfer of Mudge’s appeal to it “was improper because the appropriate standard of review is not whether the determination is supported by substantial evidence,” it said that it would retain the proceeding and resolve the issues “in the interest of judicial economy.”
The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09311.htm
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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; 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.
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