Retiree’s survivors application to modify the retiree’s election of a retirement option rejected

Retiree’s survivors application to modify the retiree’s election of a retirement option rejected
Kevin M Gorey, Jr. v New York State Comptroller, 2011 NY Slip Op 03329, Appellate Division, Third Department

Kevin M. Gorey Sr. applied for service retirement effective September 1, 2004 and elected benefit payments under the "Single Life Allowance" option. This option provided that Gorey Sr. would receive the maximum lifetime retirement allowance payable to him and the payments would stop upon his death. Further, this option did not permit Gorey to designate a beneficiary.

New York State and Local Employees’ Retirement System [ERS] sent Gorey Sr. a letter confirming his option selection and detailing his annual benefit payments. In addition, ERS told Gorey Sr. that he could his selection of his retirement option prior to September 30, 2004. Gorey Sr. did not submit any change and died on November 19, 2004.

Gorey Sr.’s children [Gorey, Jr.] asked ERS to void decedent's selection of the "Single Life Allowance" option, contending that Gorey, Sr. was incompetent at the time he made the selection. Ultimately ERS rejected Gorey Jr.’s application, holding that Gorey Jr. had not established that Gorey Sr. was incompetent* when he made his retirement option selection and Gorey Jr. sued in an effort to overturn the Retirement System’s decision.

The Appellate Division affirmed the Retirement System’s determination.

Noting that Gorey Jr. contend that the Retirement System “did not take adequate steps to ensure that [Gorey Sr.] made a proper retirement option choice, the court said that the Retirement System is "not required to insure that proposed retirees receive the best possible entitlement," citing Matter of Cummings v New York State & Local Employees' Retirement Sys., 187 AD2d 862, appeal dismissed 81 NY2d 834.

Further, said the court, the State Comptroller "has the exclusive authority to determine all applications for any form of retirement or benefits" and his decision will not be disturbed if it is supported by substantial evidence.

* The applicant for a retirement allowance is presumed to have been competent at the time he or she made his or her retirement option selection and the burden is on those challenging that election to prove the contrary.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_03329.htm

Infringing on constitutionally protected speech

Infringing on constitutionally protected speech
Timothy M. Wrobel v County of Erie, CA2, 2007 WL. 186264

In reviewing Wrobel’s claim that Erie County had violated his right to free speech and association, the U.S. Court of Appeals for the Second Circuit said:

1. Government employees who are not policymakers have the right not to affiliate with or support a particular party or faction as a condition of employment.

2. Conditioning public employment on the provision of support for the favored political party “unquestionably inhibits protected belief and association”.*

The court concluded, “When reasonable inferences are drawn in Wrobel’s favor, the amended complaint sufficiently alleges that Wrobel was retaliated against for his lack of political affiliation with, or his refusal to pledge his allegiance to, the new Erie County administration.”

The Circuit Court also noted that in Zelnik v. Fashion Institute of Technology, 464 F.3d 217 (2d Cir. 2006), it explained that “actionable retaliation” in the context of the First Amendment was employer actions that “well might have dissuaded a reasonable worker [from asserting First Amendment-protected rights]”.**

As to Wrobel’s claim that the County had violated his First Amendment free speech rights, the Circuit Court said that "While we agree with the District Court that Wrobel’s pre-transfer speech was not on a matter of public concern, and was therefore not constitutionally protected we do not agree with its conclusion that Wrobel had not sufficiently alleged actionable retaliation following his expression of protected speech.”

Wrobel alleged that “defendant Douglas Naylon implicated him as the perpetrator of a theft of government property shortly after Wrobel discussed the corruption and politicization of his place of employment with an FBI agent.” Wrobel also alleged that other county officials had bribed others to testify against him at an arbitration hearing shortly after he engaged in protected speech.

In Conrick v Myers, 461 US 1l38, the United States Supreme Court established a two-prong test with respect to claims of dismissal in retaliation for "whistle blowing." To win, the individual must prove that (1) his or her speech is protected, i.e., the speech was a matter of public concern, and (2) that the protected speech was a substantial factor in motivating the termination

These adverse actions, said the court, “are sufficient to support a First Amendment retaliation claim,” because Wrobel’s petition “sets forth the necessary nexus between [Wrobel’s] statements concerning a matter of public concern and the defendant[s’] subsequent alleged retaliatory acts.”

Essentially public officers and employees enjoy "protected speech" in connection with their public comments concerning a State or municipal employer's activities that are a matter of public concern.

In contrast, comments by a public officer or employee concerning his or her personal unhappiness with a public employer, such as complaints about working conditions or his or her personal disagreements concerning internal operations of the department or the agency that does not rise to the level of a “public interest,” do not appear to be protected by the Constitution.***

The decision is posted on the Internet at:  

http://nypublicpersonnellawarchives.blogspot.com/2007/01/freedom-of-association.html

* See also §107 of the Civil Service Law setting out certain prohibitions against certain political activities and improper influence.

** The court commented that monitoring of Wrobel’s phone calls, transfer of Wrobel to a faraway location, initiation of a criminal investigation against Wrobel, and other adverse actions alleged in the amended complaint—if proven true—would be sufficient to dissuade a reasonable worker from asserting his First Amendment rights. Wrobel, said the court, adequately alleges that the adverse actions were taken in retaliation for his protected associational activity.

*** See Saulpaugh v. Monroe Community Hosp., 4 F.3d 134, where the court held that a public employee’s speech was not constitutionally protected where the speech was “motivated by and dealt with her individual employment situation”.

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”

Disciplinary penalty of dismissal sustained as consistent with the “Pell Doctrine”

In re Police Officer Ruben Olavarria, etc., v Raymond W. Kelly, as Police Commissioner of the City of New York, et al., 37 AD3d 191

The so-called Pell Doctrine frequently is cited as the standard against which a disciplinary penalty imposed on a public employee by the appointing authority is to be measured.*

In Olavarria, the Appellate Division affirmed the imposition of the penalty of dismissal on a New York City police officer found guilty of a number of alleged acts of misconduct, including assault, insubordination, being discourteous to superior officers, violating an order of protection, and being asleep on duty.

Ruling that it found no basis to question the credibility of the findings underlying holding that Olavarria was guilty of these charges, the Appellate Division said the “Under the circumstances, the penalty of dismissal does not shock the judicial conscience,” citing another leading decision addressing the imposition of the “ultimate” administrative disciplinary penalty, -- dismissal. Harp v New York City Police Dept., 96 NY2d 892.

For the full text of this decision, go to:

http://nypublicpersonnellawarchives.blogspot.com/2007/02/penalty-of-dismissal-sustained.html

* Pell v Board of Education, 34 NY2d 222, a disciplinary penalty imposed by an appointing authority will not be overturned unless the court finds that it is shocking to one's sense of fairness.

A coda to "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations"

A coda to "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations"

Source: Administrative Law Professor Blog. Reproduced with permission. Copyright © 2011, All rights reserved http://lawprofessors.typepad.com/adminlaw/

“Important practice reminder

An important reminder that applies in most administrative jurisdictions: "Request for reconsideration of a final administrative decision does not toll the running of the relevant statute of limitations", on the New York Public Personnel Law blog. Neither do settlement negotiations or even (sometimes) administrative appeals. And, as in the case discussed in [another post*], the statutes of limitations for judicial review of administrative decision are often very short (four months for a personnel decision in this case). In my practice days, one of the first research tasks I set myself when taking on an administrative matter was "how many days do I have to take this to the Court of Appeals if it goes south?" Or north, as the case may be. Just in case.

“And typically the S/L is measured from the promulgation of a "final" order. When is "final" in this context in this jurisdiction? Do you know?” 

* Dean Patty Salkin (Albany Law School) describes such a situation in "Fed. Dist. Court Prevents Performing Arts Center From Relocating to Dilapidated Historic Warehouse" on her Law of the Land blog: 

Edward M. McClure

Malpractice in disciplinary actions

Malpractice in disciplinary actions

Tinelli v Redl, CA2, 199 F.3d 603, Affd. 121 S.Ct. 47

After being found guilty of disciplinary charges, an individual decides to sue his or her attorney, contending that the lawyer’s action, or failure to act, in the disciplinary hearing or an appeal constituted malpractice.

In the Tinelli case, the U.S. Circuit Court of Appeals, Second Circuit considered such a malpractice claim. The decision sets out a test for determining if there is a basis for such an action against the attorney.

Joseph Tinelli was served with disciplinary charges pursuant to Section 75 of the Civil Service Law. He retained an attorney, Frank Redl, to represent him in the matter. Following a two-day hearing, the hearing officer found Tinelli guilty of three charges of “misconduct and incompetence.”

The appointing authority adopted the findings of the hearing officer and imposed the penalty recommended by the hearing officer: termination.

Tinelli appealed. According to the decision, Redl failed to take any “further action ... after the initial filing of the petition for Tinelli’s appeal” in New York State Supreme Court. As a result, six months later Tinelli’s “appeal expired.”

Tinelli sued Redl, contending that the attorney’s (1) failure to perfect the Article 78 appeal and (2) his failure to ask the court for an extension of time to perfect the appeal, constituted malpractice.

He also charged that Redl’s performance at the administrative disciplinary hearing constituted malpractice.

The U.S. Circuit Court of Appeals decided that whether or not Redl’s handling the appeal constituted malpractice depended on whether or not Tinelli’s appeal would have been successful. In other words, if Tinelli would not have won the appeal regardless of the action or inaction of his attorney, there was no basis for holding the attorney liable for malpractice.

After reviewing the record, the circuit court said that “Tinelli’s appeal would not have succeeded because the hearing officer’s findings of misconduct and incompetence were supported by substantial evidence and because there was no abuse of discretion in recommending Tinelli’s termination under the circumstances.”

The court dismissed Tinelli’s claim, holding that his attorney could not be held liable for malpractice because he failed to perfect the appeal since Tinelli would not have been able to overturn either the administrative disciplinary determination or the penalty imposed.

As to Tinelli’s claim that “Redl’s poor performance at the administrative hearings constituted malpractice,” Redl’s motion for summary judgment dismissing this allegation was also granted.