Designation of a representative in writing found critical to making a lawful determination

Designation of a representative in writing found critical to making a lawful determination
Matter of Richards v City of Binghamton, 2011 NY Slip Op 00306, Appellate Division, Third Department

James Richards, a City of Binghamton firefighter, was receiving benefits pursuant to General Municipal Law §207-a as a result of his suffering a job-related disability.

Binghamton’s independent medical examiner subsequently determined that Richards was capable of returning to modified duty with specific restrictions and Fire Chief Daniel Thomas sent Richards a letter directing him to complete certain medical procedures and tests “within 30 days and report to work for light duty on a date six days from the date of the letter.” Richards was also advised that he had 10 days to appeal the determination by submitting a written request for appeal, accompanied by medical documentation that he was unable to perform light duty tasks.

Richards “was away on vacation” when Chief Thomas sent him the letter. The letter, however, was not received until after the deadlines for Richards to report to work or appeal had passed. Ultimately the city terminated Richards’ §207-a benefits following a number of communications and Richards sued, complaining that Binghamton failed to “comply with proper procedures.” Supreme Court agreed and directed the city to “continue paying benefits,” ruling that Richards was entitled to a hearing.

The Appellate Division agreed, holding that “Because [Binghamton] did not comply with its own procedures prior to terminating [Richards’] benefits, Supreme Court properly annulled the determination.”

The court noted that “A municipality is entitled to order medical examinations of a firefighter who is receiving benefits and direct the employee to return to light duty work if medically able (see General Municipal Law § 207-a [1], [3]).” Further, said the court, a municipality may terminate benefits if a firefighter refuses to report for such work, citing General Municipal Law §207-a[3].

Although §207-a does set out a procedural framework that must be followed for such determinations, it does permit "each municipality to formulate its own procedure consistent with the demands of due process” and such procedures may be established through collective bargaining.

In this instance, said the Appellate Division, the collective bargaining agreement [CBA] between Richards’ union and Binghamton provides that disagreements concerning determinations, other than initial determinations, — including whether a firefighter is able to perform light duty work — "will be resolved in accordance with the current City procedure using an impartial hearing officer."

The CBA, however, did not define what constituted the "current City procedure" and the parties did not agree on the meaning of that term. This did not create any insurmountable obstacle for the court, however, as the Appellate Division held that “Even if we accept [the city’s] contention that the CBA incorporates an undated document entitled Firefighter's and Police Officer's Disability Procedure (FPODP) as the current procedure, [the city] cannot prevail because it failed to comply with the FPODP.

The FPODP provided, in pertinent part, that "the Commissioner shall order the individual to report for such available modified duty.” Further, the parties agreed that Binghamton’s mayor is the "Commissioner," although that term is defined to also include "an agent appointed by" the Commissioner and so designated in writing by the Mayor.*

The Appellate Division found that because the record did not contain any written designation by the mayor granting “an agent” authority to perform the functions of the Commissioner, Chief Thomas did not qualify as the Commissioner's agent.

Accordingly, said the court, Thomas's letter does not constitute an order by the Commissioner, so Richards’ “noncompliance with that letter” cannot serve as a proper basis for discontinuing benefits.

Further, assuming that Chief Thomas’ letter was proper, the FPODP merely requires an individual who disagrees with the Commissioner's determination regarding a modified duty assignment to serve the Commissioner with "a demand for a hearing," It does not mention any supporting medical documentation is required to perfect such a demand.

Accordingly, the Appellate Division rejected the city’s argument that “pursuant to case law, [Richards] was not entitled to a hearing because he did not provide medical proof that he is unable to perform modified duties.

The court ruled that the case law cited by Binghamton, which included Matter of Uniform Firefighters of Cohoes, Local 2562, IAFF, AFL-CIO v City of Cohoes, 94 NY2d 686, was inapplicable as the city had chosen “a procedural framework that does not require that medical proof be submitted along with the hearing request.”

* The designation of an “agent” in writing may critical in other situations as well. For example, Section 75.2 of the Civil Service Law permits an appointing authority to designate “a deputy or other person ... in writing” to conduct a disciplinary hearing for the purpose of making findings of fact and recommendations concerning the disposition of the charges filed against the employee and the penalty, if any, to be imposed. The importance of naming a hearing officer in writing is demonstrated by Perez v NYS Dept. of Labor, 665 NYS2d 714. Citing the Court of Appeals ruling in Wiggins v Board of Education, 60 NY2d 385, the Appellate Division said that because there was no written designation appointing the hearing officer, the appointing authority “lacked jurisdiction” to maintain the initial disciplinary proceeding” against Perez.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00306.htm

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For additional information about concerning administering General Municipal Law Sections 207-a/207-c and providing benefits thereunder go to: http://booklocker.com/books/3916.html

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Right to counsel in a disciplinary action

Right to counsel in a disciplinary action
Elmore v Plainview-Old Bethpage CSD, 273 AD2d 307

The Plainview-Old Bethpage Central School District filed disciplinary charges against one of its teachers, Edwin Elmore, alleging that Elmore had engaged in inappropriate conduct toward a student. Found guilty following a disciplinary hearing held pursuant to Section 3020-a of the Education Law, the district terminated Elmore.

Elmore appealed, contending that he had been unfairly denied his right to counsel when the Hearing Officer ruled that he could not discuss his testimony with his attorney during any adjournments in his cross-examination by the school district’s attorney. According to the decision, the five days of Elmore’s cross-examination extended over a period of 10 weeks. In other words, the hearing officer barred Elmore from discussing his testimony with his attorney for a ten-week period.

A State Supreme Court judge vacated the determination and the penalty imposed. The Appellate Division sustained the lower court’s decision. The Appellate Division pointed out that Section 3020-a(3)(c)(i) provides that a teacher facing disciplinary charges shall have the right to be represented by counsel at any hearing held on those charges.

However, because there were no cases discussing the precise issue herein, namely, to what extent a Hearing Officer may circumscribe a teacher’s contact with his attorney between adjourned dates of hearings, cited in the briefs submitted by the parties, the Appellate Division applied the rationale followed in criminal prosecutions involving similar situations -- barring the client from conferring with his or her attorney.

Commenting that teacher disciplinary proceedings are not criminal actions, the court said it was mindful that “a tenured teacher has a protected property interest in his [or her] position which raises due process considerations when a teacher is faced with termination of his employment, presumably deeming the loss of employment the economic equivalent of incarceration.”

As New York courts have disapproved forbidding a defendant from discussing his trial testimony with his attorney for all but brief periods of time, the Appellate Division, citing Goldfinger v Lisker, 68 NY2d 225, decided that such a restriction in an administrative disciplinary proceeding was inappropriate in view of the due process considerations involved when a tenured employee is threatened with termination of his or her employment -- particularly in Elmore-type situation, where the time period involved was 10 weeks. The Appellate Division directed the district to hold a new hearing.

The court’s rationale would probably be applied in disciplinary actions taken against an individual pursuant to Section 75 of the Civil Service Law.

Appointment and removal of Special Police Officers

Appointment and removal of Special Police Officers
O'Donnell v. Ferguson, App. Div., Fourth Dept., 273 AD2d 905; Motion for leave to appeal denied, 96 NY2d 701*

The O’Donnell case sets out some of the relevant law concerning the appointment and removal of special police officers by a town.

Since 1990, the Town of Evans had annually appointed John O’Donnell as a part-time police officer. When on duty for the Town, O’Donnell had the same powers and responsibilities as the full-time members of the Town’s Police Department. He also carried the same firearm, wore the same uniform as the full-time officers and was required to complete the same specialized training as the full -time officers.

Evans Chief of Police Robert R. Catalino posted a note on a bulletin board stating that effective November 17, 1998, O’Donnell would no longer work for the Town.** O’Donnell had no prior notice of this, nor was he informed of the reason why he would no longer work for the Town.

O’Donnell sued. A State Supreme Court issued an order directing the Town to reinstate O’Donnell as a part-time police officer and directed that he remain in that position unless suspended or dismissed pursuant to Section 155 of the Town Law.**** The court also ordered a hearing on damages.

The Town appealed, contending that because O’Donnell was a special police officer appointed pursuant to Section 158.1 of the Town Law, he served at the pleasure of the Town Board and therefore was not entitled to the protections of Section 155. The Appellate Division agreed and vacated the lower court’s order.

The Appellate Division said the Supreme Court erred in determining that the Town Board lacked authority to dismiss [O’Donnell] without first complying with Town Law Section 155. The court pointed out that contrary to O’Donnell’s claim that he was employed on a regular basis as a part-time police officer rather than as a special police officer, O’Donnell was not scheduled to work on a regular part-time basis but was called only from time to time to work on a temporary basis.

This decision suggests that the critical element in determining if an individual is a part-time police officer or a special police officer is whether or not the individual has a regular work schedule.

* In O'Donnell v. Ferguson, 23 A.D.3d 1005, a later decision involving the same parties but a different issue, the Appellate Division, 4th Department, commented that the “Defendants are incorrect to the extent that they contend that, as an "at-will" employee, plaintiff could be terminated for a constitutionally impermissible or statutorily proscribed purpose.”

** O’Donnell was a full-time employee of the New York State Department of Corrections and had worked a total of 27.5 days for the Town from January 1998 through October 1998.

*** Section 155 provides that a town police officer is entitled to a disciplinary hearing and if found guilty of charges of neglect or dereliction in the performance of official duty, or of violation of rules or regulations or disobedience, or of incompetency to perform official duty, or of an act of delinquency seriously affecting his general character or fitness for office, he or she may be punished by reprimand, loss of pay for up to 20 days, extra tours of duty not to exceed 20 days, suspension without pay for up to 20 days or dismissal.

**** Section 155 provides that a town board may employ temporary police officers from time to time ... and such officers shall serve at the pleasure of the Town Board. Such personnel are shall be known as `special policemen’ and shall have all the power and authority conferred upon constables by the general laws of the state....'

Applying for reinstatement following a §73 termination from a §72 disability leave

Applying for reinstatement following a §73 termination from a §72 disability leave
Matter of Coleman v State of New York, Appellate Division, Third Department, 38 AD3d 1044

Coleman was involved in an off-duty automobile accident and was placed on disability leave pursuant to §72 of the Civil Service Law. After she had been continuously absent for more than one year, the Department terminated her in accordance with the provisions of §73 of the Civil Service Law.*

§73 provides that an individual terminated after being absent on leave pursuant to §72 may apply for reinstatement to his or her former position within one year after the termination the disability underlying being placed on §72 leave by applying to the civil service department or municipal commission having jurisdiction over the position “for a medical examination to be conducted by a medical officer selected for that purpose by such department or commission.”

When Coleman initially applied for reinstatement she was evaluated to determine is she was fit to perform the essential duties of a correction officer.

Ultimately, the New York State Department of Correctional Services disqualified Delores Coleman for employment as a correction officer based on the Department’s medical expert opinion that Coleman was not psychologically qualified for the position. Coleman appealed.

Although Coleman was initially approved for reinstatement, information subsequently provided by the Department resulted in a second evaluation that concluded that she was "poorly suited" for the position. According to the decision, Coleman’s responses to specific questions during a subsequent psychological interview raised significant concerns about her judgment and integrity and as a result, she was denied reinstatement to her former position of correction officer..

Coleman contended that: Corrections incorrectly utilized the standards required of a new correction officer outlined in Correction Law §8 in rejecting her request to be reinstated to her former position with the Department.

The Appellate Division rejected Coleman’s argument, noting that although prior to 2004, a correction officer seeking reinstatement was examined solely to determine whether the disability still existed, by January 2004, [the Department] changed the medical evaluation processing of correction officer reinstatements to mirror the processing of correction officer trainee candidates.**

Accordingly, said the court, Corrections had the statutory authority under Civil Service Law §73 to determine if Coleman was mentally fit to return to her position as a correction officer and its use of the psychological standards detailed in Correction Law §8 for that purpose was entirely proper, It then dismissed her appeal.

* Section 73 of the Civil Service Law provides for the removal of a tenured employee in the classified service if he or she has been continuously absent from work for one year or more because of a non-work related injury or illness. Termination pursuant to Section 73 is at the discretion of the appointing authority. [Termination following a cumulative period absence of one year or more due to a work-connected injury or illness is controlled by §71 of the Civil Service Law. Again, termination of an individual placed on a §71 leave of absence is at the discretion of the appointing authority.]

** Correction Law Section 8 (2) provides that all applicants for the position of correction officer must undergo a psychological evaluation to determine if they are "suffering from psychotic disorders, serious character disorders, or other disorders which could hinder performance on the job [and] may be deemed ineligible for appointment."

Unemployment Insurance Appeals Board determines if there is disqualifying misconduct for the purposes of receiving unemployment insurance benefits

Unemployment Insurance Appeals Board determines if there is disqualifying misconduct for the purposes of receiving unemployment insurance benefits
Matter of Green v Village of Hempstead, 2011 NY Slip Op 00137, Appellate Division, Third Department

The Village of Hempstead dismissed Deputy Village Attorney Donna M. Green from her position for alleged misconduct. When the Unemployment Insurance Appeals Board approved unemployment insurance benefits for Green, the Village appealed.

Hempstead argued that that the credible evidence established that Green was discharged for conducting her private legal practice on “Village time,” and that her discharge was not, as she claimed, merely politically motivated.

The Appellate Division said that whether an employee was terminated for misconduct is a factual question for the Unemployment Insurance Appeals Board to resolve. Thus, said the court, “its resolution of this issue will not be disturbed if supported by substantial evidence, citing Matter of Ponce, 75 AD3d 1041.

According to the decision, Hempstead said that it had given three memoranda to Green concerning her performance of her duties but Green had testified that she had received only one of these three documents prior to her termination -- and she refuted the claims stated within the documents.

Further, the court said that two witnesses supporting Green’s allegation that she and other members of the Village’s legal staff were discharged for political reasons following the election of a new mayor, and the employer did not offer evidence refuting this testimony.

As to the merits of Hempstead’s opposition to the Board’s determination, the Appellate Division, after reviewing the conflicting evidence, noted that Green's occasional receipt of private legal mail at her Village office, “standing alone, did not conclusively establish that she conducted her private practice on the employer's time.”

The Appellate Division found that “there was no other evidence of wrongdoing [on the part of Green]” and her tardiness on one occasion “does not necessarily constitute disqualifying misconduct … even if [Green’s] explanation was inaccurate. ” citing Matter of Massucci, 8 AD3d 737.

Thus, concluded the court, substantial evidence supports the Board's conclusion that [1] Green had not engaged in disqualifying misconduct and [2] she was entitled to unemployment insurance benefits.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_00137.htm