Considering “mitigating factors” in setting a disciplinary penalty

Considering “mitigating factors” in setting a disciplinary penalty
Matter of Senior v Board of Education of Byram Hills Cent. School Dist., 37 AD3d 610,

The Board of Education of the Byram Hills Central School District adopted the findings of a disciplinary hearing officer that concluded that Fenton Senior was guilty of the charges of misconduct filed against him. The charge alleged that Senior was involved in an altercation with a co-worker. The penalty imposed by the Board: termination of Senior’s employment with the School District.

The Appellate Division, after affirming the finding that Senior was guilty of the charges filed against him, annulled the penalty imposed: termination. The court said that “the penalty of termination imposed was so disproportionate to the petitioner's conduct as to be shocking to one's sense of fairness,” citing Matter of Pell v Board of Education, 34 NY2d 222.

The court then remanded the case to the School Board “for the imposition of an appropriate penalty less severe than the termination of [Senior’s] employment.”

The reason given by the Appellate Division for remanding the case for the purpose of imposing a lesser penalty: The Board “failed to give adequate consideration to certain mitigating factors.”

The “mitigating factors” listed by the court: Strong’s four-year employment record was unblemished, and he performed good deeds in the community.

The decision is posted on the Internet at:
http://nypublicpersonnellawarchives.blogspot.com/2007/02/physical-altercation-with-coworker.html
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Fitness for promotion

Fitness for promotion
Alston v City of New York, 270 AD2d 3

Sometimes an employee sues the appointing authority in an effort to secure a promotion. Alston, a New York City caseworker, complaining that he had been denied a promotion because of his earlier conviction for Federal mail fraud. Alston asked a Supreme Court justice to direct his agency, New York City’s Administration for Children’s Services, to promote him to a supervisory position. Alston’s theory: Children’s Services’ failure to promote him constituted a violation of Section 296.15 of the Executive Law (New York’s Civil Rights Law).*
 
The Appellate Division sustained the lower court’s dismissal of Alston’s petition on the grounds that the caseworker’s allegations concerning the reasons why he was denied the promotion -- conviction of a crime -- were speculative.

In contrast, the court noted that record “set out evidence of [Alston’s] mediocre performance as a caseworker and of [Alston’s] prior attempt to deceive ACS by seeking a medical leave when he had actually taken a job with another City agency.”

Further, the court said that it concluded that Alston’s mail fraud conviction, which involved his submission of false car service vouchers in connection with his employment as a caseworker, raises legitimate issues about his fitness for the supervisory position.

* Another element relevant to this case: Section 752 of New York’s Correction Law. Section 752, in general, prohibits an employer from considering an applicants’ conviction of a crime in making its employment decision.

Court of Appeals hold that wage freeze by Buffalo Fiscal Stability Authority applies to wages lost during the freeze and to longevity and promotional steps

Court of Appeals hold that wage freeze by Buffalo Fiscal Stability Authority applies to wages lost during the freeze and to longevity and promotional steps
Matter of Meegan v Brown, 2011 NY Slip Op 02436, Court of Appeals

The State Legislature created the Buffalo Fiscal Stability Authority (BFSA), a public benefit corporation, to assist in achieving fiscal stability in the City by the 2006-2007 fiscal year.

Among other powers, the BFSA was authorized to impose a wage freeze upon finding that such a freeze was essential to the adoption or maintenance of a City budget or financial plan – which it did in April 2004, determining "that a wage freeze, with respect to the City and all Covered Organizations, is essential to the maintenance of the Revised Financial Plan and to the adoption and maintenance of future budgets and financial plans that are in compliance with the Act."

The freeze, effective April 2004, prevented any increase in wages, including increased payments for salary adjustments according to "plan and step-ups or increments".

The freeze was lifted in July 2007, whereupon the BFSA and the City indicated that City employees would immediately be entitled to a one-step increase in salary and wages. The Unions objected, however, contending that the employees were entitled to advance the four salary steps that they would have received had the freeze not been imposed.

The Union sued and Supreme Court held that Public Authorities Law Section §3858 (2)(c)(iii) applies only to wages lost during the freeze and not to longevity and promotional steps provided in the various contracts between the City and its unions and therefore the teachers were "entitled to their previously negotiated wage increase benefits going forward immediately."

Although the Appellate Division affirmed the Supreme Court ruling for essentially the same reasons, (see 63 AD3d 1673 [4th Dept 2009]), the Court of Appeals reversed, holding: “Public Authorities Law § 3850-a sets forth the Legislature's intent. In that provision, the Legislature declared that the "maintenance of a balanced budget by the city of Buffalo is a matter of overriding state concern." This remedial legislation was enacted to provide the city of Buffalo with "long-term fiscal stability," ensuring confidence of investors in the City's bonds and notes and to protect the economy of the region (id.). The Act further provides that "[t]he provisions of this title shall be liberally construed to assist the effectuation of the public purposes furthered hereby" (id. § 3873). Thus, the entire purpose of the statute was to place the city of Buffalo on sound financial ground over the long term. In order to accomplish such purpose, BFSA was empowered to freeze wages and salary increments until the City's growth and stability were renewed. The intent of the statute supports the City's position.”

The Court of Appeal’s decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02436.htm
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Only a resident of the town may be appointed to serve in a public office of the town

Only a resident of the town may be appointed to serve in a public office of the town
Matter of Ricket v Mahan, 2011 NY Slip Op 02520, Appellate Division, Third Department

After the Town Board of the Town of Colonie passed two resolutions — one appointing John H. Cunningham to a two-year term as Commissioner of Public Works and another appointing Michael M. Burick to a six-year term as Personnel Officer, Theodore W. Ricket, a resident of the Town of Colonie, commenced an Article 78 proceeding challenging both appointments.

Ricket contended that Cunningham's appointment was invalid because he did not reside in the Town, nor did he possess the qualifications established for this position by the Town in its local law.*

As to Burick's appointment as Personnel Officer, Ricket complained that the appointment was invalid because, under the Town Law, as the Town Board was only authorized to appoint him for the remainder of his predecessor's unexpired term.

Supreme Court dismissed Ricket’s petition with respect to Cunningham but determined that Burick could only be appointed by the Town Board for the unexpired portion of his predecessor's term, and so modified his appointment to this position.

Both the Town and Ricket, respectively, appealed the Supreme Court’s rulings.

By way of background, the Appellate Division noted that after the Town had abolished the Office of Superintendent of Highways — an elected position that could only be held by a Town resident — it enacted a local law creating the position of Commissioner of Public Works - Town of Colonie Code §34 This local law, among other things, provided for “an appointed position with a definite term, and set forth a description of the position's official responsibilities and the qualifications needed to be appointed to this position.” However, the local law was silent as to whether the appointee had to be a Town resident.

Since the local law is silent as to whether the Commissioner of Public Works must be a Town resident, the Appellate Division ruled that the issue presented is whether state law serves to impose such a requirement. First, noted the court, the Town, when it enacted this local law, made no reference to any state statute, nor did it identify in the local law any state statute that it intended to supercede.

In this context, the Appellate Division noted that two state statutes are implicated by this proceeding.

1. The Public Officers Law §3(1), provides that "[n]o person shall be capable of holding a civil office who shall not, at the time he [or she] shall be chosen thereto, . . . be a citizen of the United States, a resident of the state, and if it be a local office, a resident of the political subdivision or municipal corporation of the state for which he [or she] shall be chosen, or within which the electors electing him [or her] reside" (emphasis by the court);** and

2. The Town Law §23(1), states that all "elective officer[s] of the town" and "[e]very other officer of the town at the time of his [or her] appointment and throughout his [or her] term of office shall be an elector of the town" (emphasis by the court). An elector of a town is an individual who may register as a voter therein regardless of whether that person has actually registered (see 1985 Atty Gen [Inf Op] 143).

Although the Town Law identifies some town officers that must be town residents, such as town supervisor and superintendent of highways, this listing, said the court, is not exhaustive and specifically provides that "[a]ll other officers and employees in such a town shall be appointed by the town board." In other words, the state law provides that if a town enacts a local law creating a public or civil office and the person appointed to it is a town officer, the appointee must be a town resident.

However, as neither the Public Officers Law nor the Town Law defines what constitutes a public or civil office or who qualifies as a town officer, the Appellate Division ruled  that such a determination must of necessity depend upon the nature of the position, its role in town governance and whether the position involved has responsibilities that require a "high degree of initiative and independent judgment" The Appellate Division also noted “other factors to be considered are whether an oath of office*** is required and whether the appointment is for a definite term,” citing 2006 Atty Gen [Inf Op] 1032).

The court then ruled:

“Here, the Commissioner of Public Works takes an oath of office (see Town of Colonie Code § 34-10), serves a two-year term and, according to the Town Code, is "the principal executive officer and administrative head of the Department of Public Works . . . with such powers as shall be necessary for the proper administration of the Department of Public Works consistent with applicable laws" (Town of Colonie Code § 34-3 [A]). Given the nature of this position — and the crucial role it plays providing essential services for the Town — we conclude that the Commissioner of Public Works is a town officer who must be a town resident. Since Cunningham has acknowledged that he was not a Town resident when he was appointed to this position, and does not intend to become one in the future, his appointment as Commissioner of Public Works does not comport with relevant state law and is invalid.

Const, art VIII, § 1), we note that no one has claimed during this proceeding that these payments were not made for services rendered. As such, the conclusion reached herein does not serve to alter the fact that Cunningham earned the compensation for which he was paid and, as such, the salary and benefits he earned while serving in this position did not constitute an illegal gift of public funds.

“As for Burick's appointment as Personnel Officer, the Town Law specifically provides that "[w]henever a vacancy shall occur or exist in any town office, the town board or a majority of the members thereof, may appoint a qualified person to fill the vacancy" and that when "the appointment [is] made to fill a vacancy in an appointive office, the person so appointed shall hold office for the remainder of the unexpired term" (Town Law §64[5] [emphasis by the court). This provision is controlling and, thus, as Supreme Court found, Burick's appointment as Personnel Officer must be limited to the remainder of his predecessor's unexpired term (see Civil Service Law §15[1][b])****.”

* Ricket also sought a declaration that the salary and benefits paid to Cunningham while he served as Commissioner constituted "an unconstitutional gift of public funds" that must be returned to the Town.

** An elector of a town is an individual who may register as a voter therein regardless of whether that person has actually registered (see 1985 Atty Gen [Inf Op] 143).

*** See, also, Civil Service Law §62 which, in pertinent part, “Every person employed by the state or any of its civil divisions, except an employee in the labor class, before he shall be entitled to enter upon the discharge of any of his duties, shall take and file an oath or affirmation in the form and language prescribed by the constitution for executive, legislative and judicial officers….. execute his or her requires “Constitutional oath upon appointment.”

**** Civil Service Law §15[1][b], in pertinent part, provides that the Personnel of a suburban town described in subdivision four of section two of this chapter shall be appointed by the town board of such town. … The term of office of a personnel officer shall be six years…. A personnel officer shall have all the powers and duties of a municipal civil service commission.

The decision is posted on the Internet at:  
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02520.htm
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Challenge to dress code alleges gender discrimination

Challenge to dress code alleges gender discrimination
Matthews v City of New York, 270 AD2d 45

While claims of unlawful discrimination based on an employer’s dress code are not as common as they once were, dress code gender discrimination was one of the claims made by provisional caseworker, Makebra Matthews, after she was terminated from her job with the City’s Administration for Children’s Services [ACS].

Matthews, in an effort to regain her former position, alleged that the city was guilty of gender discrimination because it disapproved of her manner of dress and fired her. She contended that her dismissal resulted from ACS’s enforcing a dress code that allowed men, but not women, to wear sexually provocative or otherwise inappropriate clothes at work.

The city, on the other hand, argued while Matthews’ dress might be inappropriate for the workplace, the only reason it had dismissed her was because it was dissatisfied with the way she performed her assignments. Was this a mixed motive case?*

The Appellate Division ruled in favor of the city, commenting that Matthews had failed to make out a prima facie case of discrimination based on sex.

The court said that the city presented abundant evidence showing reasons for being dissatisfied with [Matthews] entirely apart from her manner of dress.

Dismissing Matthews’ complaint, the Appellate Division explained that [a]bsent a prima facie showing of discrimination, the mixed-motive analysis set out by the U.S. Supreme Court in Price Waterhouse v Hopkins is not applicable.

* See Price Waterhouse v Hopkins, 490 US 228