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

January 03, 2011

State government policy makers not covered by Age Discrimination in Employment Act [ADEA]

State government policy makers not covered by Age Discrimination in Employment Act [ADEA]
Source: Findlaw.Com Weekly Labor & Employment Law Newsletter, December 27-31, 2010

Opp v. Office of the State's Attorney of Cook County, No. 09-3714 - United States Seventh Circuit, 12/29/2010

”In former assistant state's attorneys' suit against the county state's attorney, claiming unlawful employment termination in violation of the Age Discrimination in Employment Act (ADEA), district court's grant of defendants' motions to dismiss in ruling that the plaintiffs were excluded from the ADEA's coverage because they held policymaking positions as a matter of law, is affirmed where:

1) district court's determination as a matter of law of the policymaking status of the plaintiffs' positions was proper because the plaintiffs' positions as assistant state's attorneys gave them inherent policymaking authority, and the plaintiffs' roles as assistant state attorneys were clearly defined by statute; and

2) plaintiffs' argument that they were not appointed by the state's attorney and thus cannot be considered "appointees" on the policymaking level is without merit."

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Evaluating the credibility of a witness in a disciplinary action

Evaluating the credibility of a witness in a disciplinary action
Jackson v McMahon, 275 AD2d 546

The Appellate Division upheld the disciplinary determinations and penalties imposed by the Commissioner of State Police on four troopers who were found guilty of misconduct and neglect of duty after being found sleeping in their patrol cars while on duty at about 3:30 in the morning.

The troopers had stopped the two patrol cars in which they were riding to set up radar surveillance during the early morning and were found asleep during a random check by their supervisor. The Disciplinary Board found them guilty of charges of misconduct and neglect of duty and recommended penalties ranging from suspension without pay for ten days and censure to suspension for twenty days and censure for this misconduct. The Superintendent adopted the Board’s findings and recommendations.

The troopers appealed their being found guilty of the charges and the penalties imposed, alleging that Disciplinary Board’s determinations were not supported by substantial evidence.

The Appellate Division rejected their claims, holding that its review of the record indicated that the supervisor gave detailed testimony concerning his observations of troopers that indicated that the four were asleep while performing his supervisory check.

True, said the court, the troopers denied that they were sleeping when approached by the supervisor. True, said the court, the troopers submitted testimony casting doubt on the accuracy of the supervisor’s observations. This, however, presented a question of credibility, which the Board was free to resolve against troopers and the court declined to substitute its judgment for that of the Board and the Superintendent.

The Appellate Division said that the test applied [i]n assessing whether an administrative decision is supported by substantial evidence is whether the finding is supported by the type of evidence that a reasonable mind might accept as adequate to support the conclusion reached, citing Doolittle v McMahon, 245 AD2d 736. Under these standards, the court said that it could not say that the supervisor’s testimony did not support the findings of guilt and declined to disturb the Board’s determinations.

As to the penalties imposed, the court said that much deference is to be afforded to an agency’s determination regarding a sanction, especially in situations where, as here, matters of internal discipline in a law enforcement organization are concerned, quoting from Santos v Chesworth, 133 AD2d 1001. Considering the particular circumstances presented in this case, the court said that it did not find the penalties imposed upon troopers so disproportionate to the offense as to shock one’s sense of fairness.

Decertification of a union sought by dissatisfied unit member

Decertification of a union sought by dissatisfied unit member
Matter of Seneca Fall Support Staff Association, 33 PERB 3028.

A number of unit members dissatisfied with the representation provided by the existing collective bargaining agent, CSEA, formed the Seneca Falls Support Staff Organization [SFSSO].

SFSSO ultimately filed a petition seeking (1) decertification of CSEA as the collective bargaining agent for the support staff and (2) certification as the collective bargaining agent for support staff then represented by CSEA.

Finding that the CFC was acting independently and not as a shell organization for another union seeking representation rights as CSEA contended, PERB affirmed the ruling by its administrative law judge that a representation election be scheduled.

December 31, 2010

Special Education Cases under the IDEA and §504 of the A.D.A. - Year 2010 in Review

Special Education Cases under the IDEA and §504 of the A.D.A. - Year 2010 in Review
Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/ Reproduced with permission. Copyright © 2010, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Professor Perry A. Zirkel, University Professor of Education and Law, Lehigh University, wrote an excellent article summarizing special education cases for 2010 as well as related A.D.A. Section 504 and other cases.

The article is a must for school administrators and attorneys practicing in this area and is available here.

Mitchell H. Rubinstein

Dismissal recommend after employee is found guilty of off-duty misconduct that violated employer’s rules

Dismissal recommend after employee is found guilty of off-duty misconduct that violated employer’s rules

OATH Administrative Law Judge Alessandra Zorgniotti recommended that Sheron Dixon, a New York City probation officer charged and found guilty of being arrested in violation of Department rules, using profanity towards police officers, resisting arrest, spitting upon a police officer, and failing to notify the Department of her arrest and conviction of disorderly conduct, be terminated.

Although the incident occurred while the probation officer was off-duty, Judge Zorgniotti found that Dixon was subject to disciplinary action because there was a nexus between the misconduct and her official duties.

Further, the ALJ found that the Department had proved that Dixon had been AWOL from her position.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-156.pdf

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