Political tests for appointment to the public service in New York State

Political tests for appointment to the public service in New York State
NYPPL trivia – January 2011

Subdivision 1 of §107 of the Civil Service Law essentially prohibits “Recommendations based on political affiliations.” Subdivision 1, in pertinent part, provides that “No recommendation or question under the authority of [the Civil Service Law] shall relate to the political opinions or affiliations of any person whatever; and no appointment or selection to or removal from an office or employment within the scope of [the Civil Service Law] or the rules established thereunder, shall be in any manner affected or influenced by such opinions or affiliations.

Subdivision 2 of §107 prohibits “Inquiry concerning political affiliations.” Subdivision 2, in pertinent part, provides that “No person shall directly or indirectly ask, indicate or transmit orally or in writing the political affiliations of any employee in the civil service of the state or of any civil division thereof or of any person dependent upon or related to such an employee, as a test of fitness for holding office.”

However, in some instances an individual’s political affiliation determines his or her eligibility for appointment to a position in public service in New York State as a matter of law. Name one such position.

E-mail your answer to NYPPL at publications@nycap.rr.com with the word “Trivia - 2011” in the subject line on or before January 31, 2011. Only the first entry submitted by an individual will be considered. The correctness of the answer submitted by an individual shall be determined by solely by NYPPL.

The individual submitting the "first correct entry" will receive a free copy of the 2011 edition of The Discipline Book, [regular price $195] upon its publication later this year. In the event more than one correct entry is received, the “first correct entry” will be determined by NYPPL’s making a selection at random from among the “correct e-mails” received on or before January 31, 2011.

Your submission of an entry constitutes your agreement to above terms and conditions.
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Failure to satisfy all the procedural mandates when filing an appeal with the Commissioner of Education is a fatal defect

Failure to satisfy all the procedural mandates when filing an appeal with the Commissioner of Education is a fatal defect
Appeal of Greg Johnston v the Board of Education of the Manhasset Union Free School District, Decisions of the Commissioner of Education, Decision No. 16,184

Greg Johnston alleged that Assistant to the Superintendent William Shine threatened physical violence against him during a meeting of the School Board and asked School Superintendent Charles Cardillo to take disciplinary action against Shine. When Cardillo advised Johnston that no disciplinary action would be taken against Shine, Johnston appealed to the Commissioner.*

The Commissioner dismissed Johnston’s appeal for a number of technical reasons, including Johnston's failure "to join necessary parties” – i.e., a party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner.

Here, said the Commissioner, both Cardillo and Shine would clearly be affected if should the relief sought by Johnston be granted. However, there was nothing in the record to indicate that either Cardillo or Shine had been served with a copy of the notice of petition and petition filed by Johnston.

Further, said the Commissioner, Cardillo was not named in the caption of the petition or in the notice of petition. Accordingly, the Commissioner ruled that Johnston’s claims against both Cardillo and Shine must be dismissed.

Similarly, Johnston’s petition seeking Shine’s removal was also dismissed because the notice of Johnston's petition was defective.

Clearly any one of these omissions standing alone would consitute a fatal defect if it could not be timely cured.

In any event, the Commissioner said that even had Johnston been properly filed and served on the necessary parties, it would have been dismissed as it “fails to state a claim upon which relief may be granted.”

Although Johnston cited Education Law §2217 as the legal basis for his challenge to Cardillo’s failure to discipline Shine, the Commissioner pointed out that “such reliance is misplaced,” as that provision pertains only to official acts of a district superintendent of schools rather than a superintendent of a school district [emphasis supplied].

Further, Education Law §306 authorizes the Commissioner to remove a trustee, a member of a board of education, a clerk, a collector, a treasurer, a district superintendent, a superintendent of schools or other school officers. An assistant to the superintendent is a district employee and not a school officer subject to removal by the Commissioner pursuant to §306 of the Education Law.

As to Johnston’s asking the Commissioner to initiate disciplinary action against Shine, the Commissioner lacks authority to do so as it is the board of education, rather than the Commissioner of Education, in which the authority to take disciplinary action against a school district employee is vested.

* The decision to discipline an employee of a school district is a matter involving the exercise of discretion by the appointing authority. Two decisions by the Commissioner of Education, Gaul, Decisions of the Commissioner #14432 and Matter of Middleton, Decisions of the Commissioner #14431, address challenges to the exercise of discretion with respect to filing disciplinary charges against an employee of a school district or BOCES.

The Commissioner’s decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16184.htm
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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."

Click here to Read more...”

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.