Termination by operation of law

Termination by operation of law
Bowman v Kerik, 271 AD2d 225

Section 30.1(e) of the Public Officers Law provides that a public office becomes vacant upon the conviction of the incumbent of a felony, or a crime involving a violation of the individual’s oath of office. The significance of this provision is that no pre-termination hearing that may otherwise be viewed as mandated by law such as the proceeding set out in Section 75 of the Civil Service Law or a Taylor Law disciplinary grievance procedure is required to effect the termination.

In Bowman, Section 30.1(e) was the basis for the court’s sustaining the termination of several New York City correction officers without a hearing. As the Appellate Division noted, Section 30.1(e) is a self-executing statute and no pretermination hearing was required.

Bowman and other correction officers had challenged their dismissal without notice and hearing, claiming they were entitled to such a due process hearing. The corrections officers pled guilty to an intent to evade any tax imposed under [an] income or earnings tax statute....*

The Appellate Division found that their public offices were vacated automatically on conviction by operation of law because of the misdemeanors to which they had pleaded guilty. As noted in Kelly v Levin, 440 NY2d 424, even if these individuals were given a due process hearing, the only penalty that could be imposed by an appointing authority or hearing officer was dismissal.

* For the purposes of 30(1)(e), a plea of guilty is the equivalent of a conviction.
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Challenging administrative decisions

Challenging administrative decisions
Gomez v Safir, 271 AD2d 246

The Gomez case points out a procedural trap that an individual may encounter in the event he or she delays challenging an administrative decision. In this instance the case involved a delay by a police officer in contesting an administrative decision denying his request to engage in off-duty employment.*

There two basis issues involved in this case:

1. Did a pending grievance concerning the denial of his administrative application for off-duty employment approval toll the statute of limitations for filing an Article 78 petition challenging the administrative disapproval action? and

2. Was the determination of the commissioner in denying Gomez’s request reasonable?

New York City police officer Felipe Gomez wanted to be a professional boxer. When his administrative request to work off-duty in pursuit of a boxing career was disapproved, he appealed the administrative determination to the commissioner. He also filed a contract grievance protesting the denial of his request for permission to engage in off-duty employment as a professional boxer.

First, the commissioner denied Gomez’s administrative appeal concerning permission to participate in boxing while off-duty. Gomez did not immediately challenge the commissioner’s administrative decision but decided to wait for commissioner’s decision concerning his grievance.
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The commissioner also denied Gomez’s grievance, ruling that Gomez’s complaint did not involve a contractual right subject to the grievance process; Gomez then initiated an Article 78 action seeking a court order vacating the commissioner’s administrative decision.

However, by the time the commissioner issued the grievance ruling more than four months had passed by since the commissioner had issued his administrative ruling on Gomez’s administrative appeal. As a result the first issue to be resolved by the court was a procedural one -- was Gomez’s Article 78 petition appealing the commissioner’s administrative ruling timely; i.e., was it filed within four months of the final administrative determination?

State Supreme Court Judge William McCooe said it was untimely and dismissed Gomez’s petition. Why? Because, said the court, the commissioner’s administrative decision became final and binding on Gomez when he was told that the commissioner had denied his administrative appeal. Accordingly, the four-month statute of limitations for bringing an Article 78 action commenced to run at that time.

The critical element in resolving the timeliness issue: Judge McCooe said that Gomez’s attempt to resort to contractual grievance procedures did not toll the four-month limitations period, citing Lubin v Board of Education, 60 NY2d 974.

The lesson here: delays in filing an Article 78 petition because the employee is awaiting the resolution of a grievance or arbitration concerning the same issue is fatal as the Gomez decision demonstrates.

Similarly, in Roper v NYC Department of Citywide Administration, Appellate Division, Third Department, 271 AD2d 737, the court sustained the Unemployment Insurance Appeal Board’s dismissed Clyde Roper’s appeal of the denial of his unemployment insurance claim as untimely. Clyde testified that he received the ALJ’s decision but did not appeal based upon his attorney’s advice to wait for a pending arbitration decision. The court sustained the board’s conclusion that Clyde failed to comply with the 20-day filing requirement of Section 621(1) of the Labor Law and dismissed his appeal.

Although the Appellate Division dismissed Gomez’s complaint for technical reasons, it also elected to comment on the merits of his claim. The court pointed out that although Section 208-d of the General Municipal Law allows a police officer to accept off-duty employment, such employment must not affect his physical condition to the extent that it impairs his ability to efficiently perform [his or her regular] duties.

The court’s conclusion as to merits of Gomez’s appeal: given this qualification, it cannot be said that the blanket prohibition against professional boxing apparently applied here is so lacking in reason as to be arbitrary.

* A number of law enforcement agencies have adopted a policy setting the nature of off-duty employment that its officers may accept and generally require the officers to obtain prior approval before accepting off-duty employment. In some instances, the department’s off-duty work policy has been incorporated in an agreement negotiated pursuant to the Taylor Law. An employer’s restriction on employee’s use of their nonworking time is generally a mandatory subject of negotiations and the union’s acquiescence to limitations concerning off-duty work does not constitute a waiver of the right to bargain subsequent prohibition [see Sheriff’s Association and Ulster Co. Sheriff, 27 PERB 3028].
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Seasonal employees not entitled to a §75 hearing having access to an Article 78 hearing satisfies constitutional due process requirements

Seasonal employees not entitled to a §75 hearing having access to an Article 78 hearing satisfies constitutional due process requirements
Edward Carter, et al v Incorporated Village Of Ocean Beach, USCA, Second Circuit 10-0740-cv*

Carter and his co-plaintiffs [hereinafter "Carter"] sued the Village and certain of its officials, alleging that they were unlawfully terminated from their respective seasonal police officer positions. They also alleged that their termination was in retaliation for reporting misconduct within the department in violation of the First, Fifth, and Fourteenth Amendments and that certain of the defendants made “derogatory statements” about them.

The federal district court ruled that Carter’s claims failed as a matter of law, concluding that Carter did not engage in “constitutionally protected speech” and thus could not establish First Amendment claims. The court said that “even if [Carter's] factual claims were credited in full, they established only that [Carter] spoke “pursuant to their official duties” and thus “not . . . as citizens for First Amendment purposes.”

The district court also ruled that Carter had not suffered a deprivation of either a protected liberty or property interest.

The Court of Appeals affirmed the lower court’s decision, holding that Carter’s allegations establish no more than that [the plaintiffs] reported what they believed to be misconduct by a supervisor up the chain of command—misconduct they knew of only by virtue of their jobs as police officers and which they reported as “part-and-parcel of [their] concerns about [their] ability to properly execute [their] duties.”

Speech, said the court, “that owes its existence to a public employee’s professional responsibilities” is made “pursuant to” that employee’s “official duties.” Accordingly, the Circuit Court concluded, Carter was not engaging in constitutionally protected speech at any relevant time and cannot make out a First Amendment claim.

As to Carter’s claim that he was deprived of a protected property interest without due process of law, the Circuit Court of Appeals said that “To state a claim for deprivation of property without due process of law, a plaintiff must, as a preliminary matter, ‘identify a property interest protected by the Due Process Clause,’” citing Harrington v County of Suffolk, 607 F.3d 31.

However, to demonstrate a property interest in public employment, the plaintiff must have “more than a unilateral expectation of” continued or future employment but instead “a legitimate claim of entitlement to it.”

Carter, said the court, established no such “claim of entitlement” in that the record establishes that all of the plaintiffs in this action were all at-will, part-time, seasonal employees who had no contractual or other basis for asserting any “entitlement” to continued or future employment.

Carter had also contended that he was entitled to a pretermination hearing in accordance with Civil Service Law §75(1)(c). However, said the court, only certain individuals who have “completed at least five years of continuous service” are entitled to such administrative due process by operation of law. In this instance, said the Circuit Court, the district court had determined that no plaintiff was employed “continuously” for a five year period, and, accordingly, that §75(1)(c) provides no support for plaintiffs’ claims.”

Finally, as to Carter’s allegations of a so-called “stigma plus” deprivation of constitutionally protected right, stigma plus’ refers to a claim brought for injury to one’s reputation (the stigma) coupled with the "deprivation of some ‘tangible interest’ or property right (the plus), without adequate process."

The Circuit Court of Appeals agreed with the district court’ holding that even assuming a “deprivation” occurred in this instance – "that is, assuming plaintiffs could establish the 'stigma' and the 'plus' – the claims would nonetheless fail because plaintiffs were afforded 'adequate process' in the form of a post-deprivation Article 78 hearing in state court."

The Circuit Court explained that “where, as here, plaintiffs are ‘at will’ government employees raising stigma-plus claims, our law makes clear that 'due process does not require a pre-termination hearing,' and access to post-termination process, such as an Article 78 hearing, is sufficient to satisfy constitutional requirements."

* N.B. This ruling is a Summary Order. Rulings by summary order do not have precedential effect.

The decision is posted on the Internet at:
http://www.ca2.uscourts.gov/decisions/isysquery/596b4436-f8b9-4643-82a9-59e7edb21841/3/doc/10-0740_so.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/596b4436-f8b9-4643-82a9-59e7edb21841/3/hilite/
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Discipinary charges filed against employee for off-duty misconduct

Discipinary charges filed against employee for off-duty misconduct
Cannata v Safir, 269 AD2d 327

The Appellate Division, First Department did not have any difficulty in sustaining the decision of the Police Commissioner to dismiss New York City police officer Michael Cannata based on his finding that Cannata, while off-duty had:

1. Refused to move his illegally parked car when asked to do so by a Yonkers police officer;

2. Acted in a rude and aggressive manner, making racial remarks about the police officer; and

3. Lied about his conduct during the departmental investigation and disciplinary hearing.

Commenting that the commissioner’s determination was supported by substantial evidence, including the testimony of numerous Yonkers police officers, the Appellate Division said that there was no basis to disturb the commissioner’s credibility determinations.

Under the circumstances, the court said that "the penalty of dismissal does not shock our sense of fairness."

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Evidence lawfully obtained may be used to initiate an investigation of an employee even if similar information was received in violation of law

Evidence lawfully obtained may be used to initiate an investigation of an employee even if similar information was received in violation of law
Matter of Lomax v Kelly, 2011 NY Slip Op 01894, Appellate Division, First Department

Richard Lomax, a New York City probationary police officer, was off-duty with a fellow officer when the vehicle he was driving skidded on ice and rear-ended another car. Lomax called 911 to report the accident.

The occupants of the other vehicle, however, attacked the officers resulting in Lomax sustaining serious head injuries.

In the course of prosecuting the assailants, an Assistant District Attorney discovered that Lomax's medical records indicated that he was intoxicated at the time of the accident. This was reported to a NYPD sergeant, who then reported the finding to the Internal Affairs Bureau and ultimately Lomax was terminated.

Lomax challenged his dismissal from his position. In considering Lomax’s appeal, the Appellate Division said that “Even assuming that the Assistant District Attorney violated the Health Insurance Portability and Accountability Act of 1996 [HIPPA]* upon disclosing the contents of [Lomax’s] medical records to the NYPD, [NYPD] properly relied on records lawfully obtained from an independent source to conduct the [Internal Affairs] investigation.”

The Appellate Division, sustaining his termination as a probationary employee, ruled that the medical records used by NYPD showing that Lomax was driving while intoxicated provided “a rational basis for his dismissal as a probationary police officer and established that the termination was not made in bad faith.”

* N.B. As to such disclosure by the Assistant Attorney General, HIPPA’s privacy rules require “that health plans, health care clearinghouses, and certain health care providers guard against misuse of individuals' identifiable health information and limit the sharing of such information” [see Public Law 104-191; Title II, Subtitle F; Part C--Administrative Simplification, §1171, Definitions, posted on the Internet at http://www.cms.gov/HIPAAGenInfo/Downloads/HIPAALaw.pdf ].

The Lomax decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_01894.htm
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