Work related investigations

Work related investigations

Cerrone v Cahill, USDC, NDNY, 84 F. Supp. 2d 330

An investigation is being conducted by the appointing authority concerning alleged misconduct by an employee.

1. Do the same rules that apply when the appointing authority conducts an investigation involving alleged work-related misconduct control when the appointing authority is investigating alleged off-duty misconduct?

2. Is there any difference between an investigation by an appointing authority for the purpose of filing administrative disciplinary charges against an employee and its investigation directed towards bringing criminal charges against the individual?

As the Cerrone case demonstrates, if the focus of the investigation is criminal rather than administrative, different rules and safeguards control.

State Police Sergeant Thomas Cerrone filed a law suit in federal district court contending that his Fourth Amendment rights were violated in the course of his being investigated concerning “some sort of cover-up” related to his role in an investigation of a hit and run accident that occurred on April 3, 1993.

According to the decision, Cerrone reviewed and signed an accident report prepared by Trooper Robert Gregory that was alleged to be facially insufficient and contained false information. Sometime later, a letter signed by Ed Scott stating that Rory Knapp, the brother of State Trooper Timothy Knapp, left the scene of an accident on April 3, 1993 was received by the Division of State Police. Ed Scott denied writing the letter and the letter writer was never positively identified.

On January 19, 1995, Cerrone was stopped by investigators, placed in an unmarked police car and taken to a hotel for questioning about the hit and run incident.

Cerrone was given a Miranda warning and advised that he was the target of a criminal investigation. The investigators did not have a warrant for their action. After being questioned for six hours, Cerrone was permitted to leave when he agreed to take a polygraph test.

One of the recognized exceptions to the prohibition against warrant less searches and seizures is work-related investigations. Cerrone argued that in this case, the investigation was criminal rather than work related and thus he was entitled to the protections of the Fourth Amendment against unreasonable searches and seizures.

Noting that the procedures governing administrative investigations set out in the applicable Taylor Law agreement were not implemented in the course of Cerrone’s interrogation, Judge Thomas J. McAvoy agreed that the basic purpose of the investigation was criminal rather than administrative in nature.

The court said that the distinction between searches and seizures for the purpose of criminal prosecution and those undertaken for work related or administrative purposes is critical and many courts upholding a standard lower than probable cause [in work related investigations] have recognized that the lower standard is not appropriate in the criminal arena.

Thus, observed Judge McAvoy, if Cerrone was seized or arrested without probable cause, his Fourth Amendment rights were violated. The court also noted that the available evidence prior to Cerrone’s being questioned revealed little linking him, as opposed to other officers, to the alleged cover-up.

The decision sets out the following basic principles to be followed in investigation of employee misconduct:

1. Where a search or seizure is conducted by a government employer to further a criminal investigation, the traditional requirement of probable cause is necessary and the individual is protected by the Fourth Amendment.

2. Government employers cannot avoid the traditional Fourth Amendment safeguards applicable in the context of criminal investigations simply by labeling a criminal search work-related.

Law enforcement agencies may have greater difficulty here than other government employers. Typically, a non-law enforcement agency’s investigation of alleged misconduct looks towards filing administrative disciplinary charges against an individual. As the court ruled in Biehunik v Felicetta, 441 F.2d 228, Fourth Amendment rights do not apply in investigations of work-related misconduct.

In contrast, the very nature of investigations by law enforcement agencies of its personnel often tends to blur the line between administrative investigation for the purpose of initiating administrative disciplinary action and an investigation of the same or a related incident for the purpose of bring criminal charges against the individual. Accordingly, the distinctions identified by Judge McAvoy in the Cerrone case should be kept in mind when investigations into alleged employee misconduct are initiated by a law enforcement agency.

However, in Dombrowski v Safir, decided by the Appellate Division, First Department, 269 AD2d 161, the court upheld the termination of New York City police officer Kenneth J. Dombrowski as a result of his refusal to answer questions directly and narrowly relating to his official duties.

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New York State's Banking and Insurance Departments to be consolidated into a new Department of Financial Services effective October 3, 2011

New York State's Banking and Insurance Departments to be consolidated into a new Department of Financial Services effective October 3, 2011

Source: Bond, Schoeneck & King, PLPC

As part of the approval of the budget bill on March 31, Governor Andrew M. Cuomo signed into law Chapter 62 of the Laws of 2011 which consolidates the Banking Department and the Insurance Department into a new Department of Financial Services*.

BSK reports that:

“The new law consolidates the Banking and Insurance Departments to establish the Department of Financial Services, which will have a Banking Division and an Insurance Division.

"There will be a Superintendent of Financial Services appointed by the Governor, by and with the consent of the Senate, and who shall hold office at the pleasure of the Governor. The Superintendent of Financial Services is granted enforcement and regulatory authority over financial products and services. The Superintendent of Financial Services shall appoint a Deputy Superintendent who shall be the head of the Banking Division and a Deputy Superintendent who shall be the head of the Insurance Division.

"The Superintendent of Financial Services may remove at will any Deputy Superintendent, except as may be otherwise provided by the New York Civil Service Law.”

* Article V,  §2 of the State's Constitution provides that "There shall be not more than twenty civil departments in the state government, including those referred to in this constitution. The legislature may by law change the names of the departments referred to in this constitution." §3 of Article V of the Constitution provides that." Subject to the limitations contained in this constitution, the legislature may from time to time assign by law new powers and functions to departments, officers, boards, commissions or executive offices of the governor, and increase, modify or diminish their powers and functions. Nothing contained in this article shall prevent the legislature from creating temporary commissions for special purposes or executive offices of the governor and from reducing the number of departments as provided for in this article, by consolidation or otherwise."

Bond, Schoeneck & King’s report concerning this change is posted on the Internet at:

http://www.bsk.com/archives/detail.cfm?archive=publication&ID=1286
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Eligibility for General Municipal Law §207-a benefits and for Workers’ Compensation Benefits are not linked and are to be determined on their own merits

Eligibility for General Municipal Law §207-a benefits and for Workers’ Compensation Benefits are not linked and are to be determined on their own merits
Matter of Davidson v LaGrange Fire District, 2011 NY Slip Op 02666, Appellate Division, Second Department

Deborah A. Davidson filed and Article 78 action “in the nature of mandamus,” seeking an order to compel the LaGrange Fire District to make a final determination regarding her application for medical benefits under General Municipal Law §207-a.

Davidson has sustained an injury on a fire call and the Fire District awarded her salary benefits pursuant to General Municipal Law §207-a. However, Davidson had also asked for certain medical benefits related to her work-connected injury that had been denied by the New York State Insurance Fund, the Fire Districts workers' compensation insurance carrier.

An administrative law judge for the Workers’ Compensation Board had ruled that the State Insurance Fund was liable for the full cost of the Davidson’s surgery but the Fund had filed an application seeking a review by the Workers’ Compensation Appeals Board.

Before a decision was issued by the Board, Davidson filed her CPLR Article 78 petition. The petition, among other things, sought an order in the nature of mandamus, in effect, to compel the respondents to issue a final determination as to the her request for medical benefits under General Municipal Law §207-a.

Supreme Court denied Davidson’s petition ruling that it was premature as she had not exhausted her administrative remedies before the New York State Workers' Compensation Board concerning her claims. The Appellate Division reversed the lower court’s ruling.

The Appellate Division explained that in the event an officer or agency fails or refuses to conduct a hearing or decide a particular matter where there was a mandatory, nondiscretionary duty to do so, mandamus is appropriate to compel performance of the required duty.

Davidson argued that although the Fire District had made a determination that she is entitled to receive benefits under General Municipal Law §207-a, had not made a determination regarding coverage under General Municipal Law §207-a for her medical expenses.

As a determination by the WCB regarding workers' compensation benefits, and a determination by a municipal employer regarding statutory benefits pursuant to General Municipal Law §207-a, are separate and distinct matters, which the Court of Appeals had made clear in Matter of Balcerak v County of Nassau (94 NY2d 253), “[a] municipality's obligation to pay wages and medical costs under General Municipal Law §207-a or § 207-c is in no way dependent upon any determination made by the WCB.”

In the words of the Appellate Division, quoting Balcerak, "the eligibility determinations for these distinct types of statutory benefits" must "stand and be resolved essentially on their own merits."*

Here, any workers' compensation remedies that may have been available to Davidson were separate from and independent of her request that Fire District provide coverage for the full cost of medial expenses pursuant to General Municipal Law §207-a. Accordingly, said the court, she was not required to exhaust her administrative remedies in the workers' compensation proceeding before pursuing this CPLR Article 78 proceeding against the Fire District.

The matter was remanded to Supreme Court for further proceedings on Davidson’s petition, “and a new determination thereafter.”

* In Balcerak the Court of Appeals held that a determination by the WCB that an injury is work-related does not, by operation of collateral estoppel, automatically entitle an injured employee to benefits under General Municipal Law §207-c [which applies to law enforcement personnel], which ruling presumably would be controlling in a GML §207-a case [which applies to firefighting personnel].

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02666.htm
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Where a collective bargaining agreement sets out a “board agreement to arbitrate,” the arbitrator, rather than the court, is to determine if the grievance is subject to arbitration

Where a collective bargaining agreement sets out a “board agreement to arbitrate,” the arbitrator, rather than the court, is to determine if the grievance is subject to arbitration

Matter of City of Binghamton v Binghamton Police Benevolent Assn., Inc., 2011 NY Slip Op 02109, Appellate Division, Third Department

When the Binghamton chief of police instituted new rules concerning the use of sick leave and subsequently counseled a police officer about an alleged pattern of suspected sick leave abuse and the need to provide a physician’s notes for all future sick leave absences, the Police Benevolent Association filed a grievance alleging a violation of the collective bargaining agreement between the Association and the City. In addition, the Association contended that the new policy constituted “departure from past practices.”

The grievance was denied by both the police chief and a representative of the mayor. The City, in response to the Association demand to submit the grievance to arbitration, filed a petition pursuant to Article 75 of the CPLR seeking a stay of arbitration. Supreme Court denied the petition and the City appealed.

The Appellate Division affirmed the Supreme Court’s determination, noting that the sole issue to be resolved was whether the parties to the CBA agreed to refer disputes in this specific area to arbitration.

In such situation, said the Appellate Division, courts "should merely determine whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA."

As the parties' broad agreement to arbitrate provided that "[a]ny grievance or dispute which may arise between the parties involving the application, meaning, or interpretation of this [a]greement," the Appellate Division ruled that the subject matter of the dispute bears a reasonable relationship to the articulated contract provisions and, therefore, it is for an arbitrator to decide in the first instance whether the precise scope of those provisions covers the issues presented in the Association’s grievance.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_02109.htm

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Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law

Ordering a correction officer to submit to a drug test, without more, does not violate the officer’s rights under the Constitution or §75 of the Civil Service Law

Department of Corrections v Johnson, OATH Index #1303/11

A New York City correction officer who tested positive for illegal drugs argued that the results were obtained in violation of her union and privacy rights. In essence, the officer challenged the legality of a second drug test administered to her after she tested positive in an earlier test on the grounds that the test violated the office’s right to union representation under §75 of the Civil Service Law and her right to be free from unreasonable searches under the Fourth Amendment.

OATH Administrative Law Judge John Spooner rejected the correction officer’s theory and found that the tests had been properly conducted.

Significantly, Judge Spooner found that the procedure did not involve questioning of the officer by a supervisor or anyone else. Rather Johnson was ordered by a captain to report to the toxicology unit and there was directed to provide a hair sample by a civilian staff member. Because the test did not involve questioning, no written notice of a right to union representation was required under Civil Service Law §75(2).

The ALJ recommended that Johnson’s employment be terminated.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1303.pdf

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