Free speech limitations on public employees

Free speech limitations on public employees
Wasson v Sonoma Co. Jr. Coll., 204 F.3d 659

A public employee may claim that he or she was disciplined as a result of his or her exercising his or her constitutionally protected right of free speech.

This was Sonoma County Junior College instructor Sylvia J. Wasson’s argument following her termination from her position. The reason for her dismissal: the College Board decided that she was the anonymous writer of six defamatory letters and flyers that vilified the college president, Robert Agrella.

Wasson sued, claiming the college’s action violated her First Amendment rights. Wasson, however, had denied writing the five letters and the flyer she claimed was the reason underlying her termination. Her denial proved fatal to her wrongful termination in retaliation for exercising her right to free speech argument.

The U.S. Circuit Court of Appeals, Ninth Circuit, said that a free speech claim depends on speech.... In what may be a variation of Catch 22, the court said that because Wasson denied writing the letters or otherwise being involved in the affair, she had no basis for claiming her right to free speech had been violated.

In the words of the court, “[w]e conclude that the plaintiff fails to state a First Amendment claim in these circumstances because she cannot show the alleged wrongful conduct was in retaliation for any exercise of her free speech rights.”

Wasson also presented an alternative argument: she was defending the First Amendment free speech rights of the actual writer of the offending letters and flyer.

The court dismissed this theory as well. The Circuit Court ruled that Wasson lacked standing because she did not show that she had any relationship to, or with, the alleged anonymous writer, the second prong of the three-prong test set out in Powers v Ohio, 499 US 400.

In order to prevail on the basis of a defending the free speech of others argument, the individual must show that he or she (1) actually suffered an injury in fact, (2) had a close relation to the third party, and (3) there was some hindrance to the third party’s ability to protect his or her own interests.

Further, the courts typically distinguish between a public employee’s exercising his or her right to free speech concerning a matter of public interest in contrast to speech that essentially involves the individual’s personal interests. Pickering v Board of Education, 391 US 563, sets out the tests applied by the courts in such cases.

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The approval of a leave of absence by individual not authorized to approve such leave is invalid

The approval of a leave of absence by individual not authorized to approve such leave is invalid

Renaud v City of New York, 269 AD2d 283

From time to time an individual is absent from work without approval – AWOL. What happens if the individual is absent after receiving approval to go on leave but the individual approving the leave is not authorized to grant such approval? This was an issue in the Renaud case.

Renaud was terminated because she was absent from her position without approval [AWOL] for three months. Renaud’s defense: one of the agency’s employee relations specialists approved the absence and therefore the agency cannot deem her to have been AWOL.

This seems to be an easy issue to decide, except although the employee relations specialist involved was not authorized to approve the leave in the first instance, the specialist was unaware that Renaud had been already referred for discipline because of her AWOL status.

May the employee rely on the unauthorized approval of her absence? This was the question considered by the Appellate Division when Leslie Renaud sued the Administration for Children’s Services in an effort to be reinstated to her position with the agency.

The court said that Children’s Services’ decision to terminate Renaud for a three-month absence without leave that was in flagrant violation of the agency’s time and leave rules was neither arbitrary nor capricious and sustained Children’s Services decision to terminate her.

What about Renaud’s claim that one of the agency’s employment relations specialists had approved her leave. In effect, Renaud contended Children’s Services was estopped from considering her absence AWOL since the employee relations specialist had approved it.

The Appellate Division quickly disposed of this argument. It said that estoppel is not available against an administrative agency for the purpose of ratifying administrative error.

Accordingly, Renaud could not rely on the approval of her leave by the employee relations specialist to neutralize the agency’s decision to dismiss her as the employee relations specialist was not authorized to grant any such approval on behalf of Children’s Services.

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Considering the value of toxicology reports in random drug tests

Considering the value of toxicology reports in random drug tests

Seeley v New York City, 269 AD2d 205

Are uncertified toxicology reports indicating positive drug test results sufficient to support a decision to terminate an employee? This was the issue presented by Clarice E. Seeley, a New York City police officer, who was terminated after being found guilty of testing positive for cocaine in a random drug test.

Seeley argued that due process required the court to vacate the police commissioner’s decision because it was not supported by substantial evidence. Seeley contended that the commissioner based his ruling on unreliable toxicology reports because they were not certified copies.

The Appellate Division was not impressed by this argument. After commenting that an administrative tribunal is not strictly bound by the rules of evidence, the court pointed out that foundation testimony by the toxicologist who supervised the testing and prepared the final toxicology reports was more than adequate to establish the authenticity and reliability of the copies of the reports entered into evidence.

Also noted was the fact that Seeley’s attorney declined the hearing officer’s invitation to examine the original toxicology reports before copies of them were received in evidence. The Appellate Division then sustained Seeley’s dismissal, commenting that the penalty does not shock our sense of fairness under the circumstances.

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Discipline or constructive criticism?

Discipline or constructive criticism?
Source: E-mail received by NYPPL referencing an item posted on the Internet at http://auburnpub.com/news/local/article_0a5c06e8-5a78-11e0-95ff-001cc4c03286.html

Suspended Jordan-Elbridge School District principal David Zehner and his attorneys, citing the Education Law and the Public Officer Law, contend that Zehner cannot be “reprimanded” until a hearing officer is selected to hear any  charges filed against him pursuant to §3020-a of the Education Law and he is found guilty of those charges.

Zehner considered three actions by the Board to constitute reprimands, or punishments, in the nature of disciplinary actions taken against him and petitioned Supreme Court for an order directing the board "to cease disciplining him until it appoints an arbitrator to conduct a hearing on his 3020-a charges."

The school district, on the other hand, contends that it had not reprimanded Zehner but had merely informed him that he had violated board policy by acting inappropriately at meetings. The school district’s attorney, Frank Miller, Esq., said. “This isn’t a letter of reprimand. ... We have a right to say to one of our employees, ’you’re acting up; we’re going to correct you.’”

Distinguishing between “constructive criticism” and a reprimand in the context of a disciplinary action has been addressed in The Discipline Book [http://thedisciplinebook.blogspot.com/ ] as follows:

"In Holt v Board of Education, 52 NY2d 625, the Court of Appeals ruled that performance evaluations and letters of criticism placed in the employee’s personnel file were not “disciplinary penalties” and thus could be placed there without having to first hold a disciplinary proceeding. In other words, the appointing authority’s placing correspondence critical of the employee’s conduct or performance in his or her personnel file did not constitute discipline.

"The basic rule set out in Holt is that a statutory disciplinary provision such as Section 75 of the Civil Service Law does not require that an employee be given a hearing or permitted to grieve every comment or statement by his or her employer that he or she may consider a criticism.

"In contrast, alleged “constructive criticism” may not be used to frustrate an employee’s right to due process as set out in Section 75 of the Civil Service Law, Section 3020-a of the Education Law or a contract disciplinary procedure.

"As the Commissioner of Education indicated in Fusco v Jefferson County School District, CEd, 14,396, decided June 27, 2000, and Irving v Troy City School District, CEd 14,373, decided May 25, 2000, 'Comments critical of employee performance do not, without more, constitute disciplinary action. On the other hand, counseling letters may not be used as a subterfuge for avoiding initiating formal disciplinary action against a tenured individual.'"

"What distinguishes lawful “constructive criticism” of an individual’s performance by a supervisor and supervisory actions addressing an individual’s performance that are disciplinary in nature?

"This could be a difficult question to resolve. As the Court of Appeals indicated in Holt, a “counseling memorandum” that is given to an employee and placed in his or her personnel file constitutes a lawful means of instructing the employee concerning unacceptable performance and the actions that should be taken by the individual to improve his or her work.

"In the Fusco and Irving cases the Commissioner of Education found that 'critical comment' exceeded the parameters circumscribing 'lawful instruction' concerning unacceptable performance.

"In Fusco’s case, the Commissioner said that “contents of the memorandum” did not fall within the parameters of a “permissible evaluation” despite the school board’s claim that the memorandum was 'intended to encourage positive change' in Fusco’s performance. The Commissioner noted that the memorandum 'contains no constructive criticism or a single suggestion for improvement.' Rather, said the Commissioner, the memorandum focused on 'castigating [Fusco] for prior alleged misconduct.'"

"In Irving’s case, a school principal was given a letter critical of her performance and the next day reassigned to another school where she was to serve as an assistant principal. The Commissioner ruled that these two actions, when considered as a single event, constituted disciplinary action within the meaning of Section 3020-a of the Education Law." .
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Dissatisfaction with a new job assignment

Dissatisfaction with a new job assignment
Matter of Gaines and the NYC Transit Authority [Commissioner of Labor], Appellate Division, 37 AD3d 962
Shawn A. Gaines was disqualified from receiving unemployment insurance benefits after the Unemployment Insurance Board found that he had voluntarily left his employment without good cause.

Gaines, after working as a train operator for 21 years, was temporarily suspended from his job and scheduled to return to work in October 2004. In the interim, however, the Transit Authority implemented a policy prohibiting employees from working as train operators when, as was the situation with Gaines, they have medical restrictions that prevent them from operating trains in passenger service.

Gaines’ restriction: he suffered a hearing loss.

The Authority, however, told Gaines it would place him in a different position and directed him to report for medical examinations. Gaines did not report for the examinations nor did he provide the Authority with the documentation it had requested concerning his medical condition. Instead, Gaines filed a claim for unemployment insurance benefits claiming that he was terminated for lack of work.

The Unemployment Insurance Appeal Board disqualified him from receiving benefits after finding that Gaines had voluntarily left his employment without good cause. The Board also charged Gaines with a recoverable overpayment of more than $1,600 and reduced his right to receive future benefits by eight effective days. Gaines appealed.

The Appellate Division affirmed the Board’s determination, stating that dissatisfaction with a new job assignment, the terms and conditions of which are comparable to a former job, has been held not to constitute good cause for leaving one's job.

Other factors cited by the court supporting the Board’s determinations:

1. Gaines said he did not want to be placed in a different position even though an Authority representative testified that Gaines would receive the same salary and vacation time.

2. By failing to appear for the Authority’s medical examinations before knowing the nature of the position to which he was to be reassigned, Gaines failed to take reasonable steps to protect his employment.

Considering the fact that Gaines “inaccurately represented that he was laid off when continuing work was, in fact, available,” the court ruled that substantial evidence also supports the Board's finding that he made a willful misrepresentation to obtain benefits.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/dissatisfaction-with-new-job-assignment.html
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