Preparing witnesses for an administrative hearing or a trial

Preparing witnesses for an administrative hearing or a trial
Health & Hospital Corp. [Queens Hospital Center] v Toval, OATH Index #500/11

It is good practice to prepare each witness for an administrative hearing or a trial separately.
A recent case adjudicated by an OATH Administrative Law Judge highlights potential pitfalls of preparing multiple witnesses for trial together.

In this case a witness admitted that she had difficulty remembering what happened on the night of the charged incident and that her testimony were based in part on a conversation she had with another witness while the pair were being prepared for trial on the previous day. It was unclear what portions of the witness' testimony was based upon her independent recollection and what aspects were based on information provided by the other witness.

Administrative Law Judge Miller found that the joint trial preparation undermined the reliability of both witnesses.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-500.pdf

Public employee not always entitled to a name-clearing hearing

Public employee not always entitled to a name-clearing hearing
Brown v Simmons, 478 F.3d 922

The lesson in Brown v Simmons is that a public employee is not entitled to a name-clearing hearing to rebut statements of a defamatory nature except when he or she has been terminated by the employer.*

Jim Brown, a teacher, sued James Simmons, the superintendent of the Conway (Arkansas) Public School District, alleging that Simmons infringed Brown’s procedural due process rights by denying him a name-clearing hearing. Brown contended that he was entitled to a name-clearing hearing because he was stigmatized by defamatory statements made by other school officials. In the words of the Circuit Court of Appeals, “Brown filed a “stigma plus” claim.”

The district court dismissed Brown’s complaint, finding that he failed to “state a claim upon which relief can be granted.” The Circuit court affirmed the district court’s ruling.

It noted that defaming a governmental employee’s reputation, good name, honor, or integrity in connection with terminating the employee, without giving the employee a name-clearing hearing, is a deprivation of the employee’s constitutionally protected liberty interest.

To state a “stigma plus” claim, the employee must allege:

(1) an official made a defamatory statement that resulted in a stigma;

(2) the defamatory statement occurred during the course of terminating the employee;

(3) the defamatory statement was made public; and

(4) an alteration or extinguishment of a right or legal status.

In response to Simmons’ motion to dismiss Brown’s cause of action, Brown alleged he had been transferred and lost pay. The district court, however, said that “even if accepted, [Brown’s claims] are insufficient to trigger the protection of the due process clause.”

The court, quoting from Hughes v. Whitmer, 714 F.2d 1407, said:

“the constitution does not require the government to give to its stigmatized employee a hearing if the public employee remains a public employee” and “the internal transfer of an employee, unless [the transfer] constitutes such a change of status as to be regarded essentially as a loss of employment, does not . . . give rise to a liberty interest meriting protection under the due process clause.

The Simmons decision appears consistent with the law in New York – dismissal is the triggering event entitling an individual to a name-clearing hearing.

As the New York State Court of Appeals held in Matter of Stanziale, 55 NY2d 735, -- where the basis for dismissal is of a "stigmatizing nature" the individual is entitled to some due process so as to clear his or her name.

In Matter of Murphy v City of New York, 2006 NY Slip Op 10135, decided December 28, 2006, Appellate Division, First Department, Index 109352/05, the court ruled that Murphy was entitled to a name clearing hearing following his “coerced retirement.” The Retirement System conceded that there had been dissemination of a report prepared by Retirement System that contained inaccuracies and was stigmatizing. Regardless whether Murphy resigned or was fired, the court said that he has satisfied the requirement of loss of employment that is necessary to demand a name-clearing hearing.**

For the full text of the decision, go to:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/no-right-to-name-clearing-hearing.html

* The “New York Rule” in such situations is discussed in Ortiz v Ward, 546 NYS2d 624. In considering the need for a "name-clearing hearing," the Appellate Division noted that Ortiz was not entitled to such a hearing as he did not show that his employer had publicly disclosed the stigmatizing reasons for his discharge. New York courts have ruled that the internal disclosure of stigmatizing reasons for the discharge of a probationer to agency administrators did not constitute a public disclosure of such information and thus a "name-clearing hearing" was not required because of such intra-agency communications.

** See also of Johnston v Kelly, 35 AD3d 297, where the court said “the sole purpose of a name-clearing hearing is to afford the employee an opportunity to prove that the stigmatizing material in the personnel file is false."

Leave of absence from former position upon appointment from an open-competitive eligible list not required

Leave of absence from former position upon appointment from an open-competitive eligible list not required
Bethel v McKechnie, Ct. of Appeals, 95 NY2d 7

Is an appointing authority required to hold open a permanent employee’s position until the individual has completed his or her probationary period in a position to which he or she has been appointed from an open-competitive eligible list?

In Bethel the Court of Appeals ruled that a public employee who accepts an appointment to a position from an open competitive examination effectively resigned from his or her former position.

Earlene Bethel applied for, and was granted, a leave of absence from her permanent position as Contract Specialist II with New York City’s Community Development Agency [CDA] to accept a provisional appointment as a Staff Analyst with CDA. New York City’s Human Resources Administration [HRA] approved the provisional appointment with CDA, and, presumably her leave of absence from her permanent position.

In April 1995, the list for Staff Analyst was certified to HRA and Bethel was permanently appointed to the title, subject to her satisfactory completion of a one-year probationary period. After starting her probationary period, HRA told Bethel that her leave from her Contract Specialist position was canceled. Bethel did not challenged HRA’s action at that time.

Bethel was terminated before completing her probationary period for allegedly committing several acts of insubordination. When CDA refused to reinstate Bethel to her former position of Contract Specialist, she sued, claiming that she could not be terminated except after notice and hearing in accordance with Section 75 of the Civil Service Law because she held a permanent appointment as a Contract Specialist. The critical issue to be resolved:

Was Bethel promoted to the Staff Analyst position as that term is used in the Civil Service Law?

Section 63(1) of the Civil Service Law provides that when probationary service is required upon an employee’s promotion, the position formerly held by the individual promoted shall be held for him and shall not be filled, except on a temporary basis, pending completion of his or her probationary term.*

The Court of Appeals decided that Bethel had not been promoted and thus Section 63(1) did not apply to her situation. Citing Engoren v County of Nassau, 163 AD2d 520, leave to appeal denied 77 NY2d 805, the court said that Section 63(1) provides job security to a permanent employee who is transferred or promoted to a position in which he or she is required to serve, but does not satisfactorily complete, a probationary period.**

Although the Court of Appeals noted that the term promotion is not explicitly defined in the Civil Service Law, the law clearly distinguishes between open competitive examinations and promotional examinations.

While Bethel received a higher salary in the new position, the court decided that she was not promoted within the meaning of the Civil Service Law because under Section 52.9 of the Civil Service Law, an increase in salary will be deemed a promotion only if the employee receives compensation beyond the limit fixed for the grade in which such office or position is classified.***

The Court said that agencies are not (1) required to keep open a prior permanent position for a probationary employee who has been neither promoted nor transferred and (2) Bethel was not entitled to a hearing prior to the cancellation of her leave of absence from her former position.

Concluding that Bethel was not promoted within the meaning of the Civil Service Law, the Court of Appeals ruled that Bethel effectively resigned her permanent position upon her accepting a permanent appointment as a Staff Analyst.

* Although a temporary appointment [see subdivisions 1 and 2 or Civil Service Law Section 64] or a contingent permanent appointment [see Civil Service Law Section 64.4] may be made to the resulting vacancy in such situations, a provisional appointment cannot be made to such a vacancy as the position “is not wholly vacant” [see Civil Service Law Section 65].

** Engoren, a caseworker, was appointed Probation Officer Trainee [POT] after passing an open competitive examination rather than a promotion examination. As there was no evidence existed that the open competitive examination was conducted in lieu of or simultaneously with a promotional examination, or that Engoren’s service as a Caseworker qualified her for a promotion as a POT, the court decided that she failed to prove that she had been promoted when appointed as a POT.

*** The Court of Appeals also noted that “Except as provided in [Civil Service Law] section fifty-one,” vacancies in positions in the competitive class are typically to be filled “by promotion from among persons holding competitive class positions in a lower grade in the department in which the vacancy exists, provided that such lower grade positions are in direct line of promotion, as determined by the state civil service department or municipal commission…”

Employer's failure to explain selection decision to rebut eligible's claim of denial promotion negates summary dismissal of employee's petition

Employer's failure to explain selection decision to rebut eligible's claim of denial promotion negates summary dismissal of employee's petition
Baker v Elmira, 271 AD2d 906

What may individual who believes that he or she has been passed-over for appointment to a position in the competitive class for political reasons do in such a situation? James A. Baker, Sr., decided that he would sue the City of Elmira when he was not selected for promotion to fire lieutenant for what he alleged were partisan political reasons.

Baker, an Elmira firefighter since 1974, took and passed the promotion test for fire lieutenant. The first four firefighters on the list were promoted before the list expired; Baker was fifth on the list.

Prior to the expiration of the list Fire Chief Donald Harrison told the Elmira city manager W. Gregg LaMar that there would soon be additional vacancies as result of retirement. Commenting that Baker was next on the list, he recommended three appointments: Baker, Eugene Ottaviani and Patrick Shaw. All had identical examination and seniority scores. Ottaviani was promoted.

Baker sued, submitting affidavits indicating that he was not being promoted because of his political affiliation. Although a State Supreme Court judge summarily dismissed Baker’s complaint, the Appellate Division reversed. Quoting from McManus v Grippen, 244 AD2d 632, the court said “it was incumbent upon [the defendant] to come forward with admissible evidence showing that plaintiff [‘s] political affiliations and activities did not play a substantial part in its decision.”

While Elmira made a prima facie showing of the propriety of the promotion, it provided no explanation as to why LaMar chose one eligible over the other candidates, since they were all equally qualified. This, said the court, meant that summarily dismissing the case was improper.

Employee’s failure to provide an adequate urine sample attributed to employer’s failure to comply federal procedures rather than employee misconduct

Employee’s failure to provide an adequate urine sample attributed to employer’s failure to comply federal procedures rather than employee misconduct
Dept. of Sanitation v Anonymous, OATH Index No. 765/11

OATH Administrative Law Judge Kevin Casey dismissed a charge alleging that a sanitation worker had refused to submit to a random drug test. The worker, who became ill during the testing procedure and was later diagnosed with a medical condition, was unable to provide a sufficient urine sample, despite repeated attempts.

ALJ Casey found the department failed to provide the worker with forty ounces of water to drink over a period of three hours, as required by federal regulation. Hence, the employee's failure to produce sufficient urine for testing was not misconduct.

The decision is posted on the Internet at:
http://archive.citylaw.org/oath/11_Cases/11-765.pdf