A series of annual appointments as an educator may not result in tenure by estoppel

A series of annual appointments as an educator may not result in tenure by estoppel

Mohr v Salamanca City School District, 267 A.D.2d 983

Seniority is one of the critical elements in determining the retention of an employee in layoff situations. Such seniority, however, is a function of having tenure with the individual’s employer, as the Mohr case demonstrates. As Mohr demonstrates, tenure is attained as a result of being continued in service after completing a probationary period and not simply completing a series of annual appointments.

Brian Mohr was appointed as a teacher’s aide in Salamanca’s Bilingual Education Program in 1978. He was reappointed annually to that position until 1982 when he was appointed as a Title VII funded Bilingual Resource Teacher [BFT] for one year.

In determining seniority for the purposes of a layoff, the District found that Mohr, the least senior teacher, and he was terminated. Mohr sued, contending that because of his earlier service with the district, he was not the least senior teacher in his tenure area. Mohr argued that he had acquired tenure by estoppel as a teacher as a result of his service with the district from 1987 through and including 1992. He claimed that this entitled him to “bump” a teacher in the Seneca Language/Iroquois Culture tenure area with less seniority or, alternatively, to be placed on the preferred list for employment in “similar positions”.

The Appellate Division said “Supreme Court properly rejected those contentions.”

According to the decision, although an individual who completes his or her probationary period may attain tenure by estoppel, Mohr had not been appointed to a “tenure track” position until 1993. Each of Mohr’s pre-1993 employments by the district was dependent on the district’s receiving grant funds. As Mohr had been employed under a series of one-year contracts rather than for a “probationary term,” the court said that he could not, and did not, attain tenure by estoppel. This meant that Mohr could not “bump” a teacher with less service with the district.

In Yastion v Mills, 229 A.D.2d 775, the Appellate Division held that a teacher may work on a year-to-year contractual basis and never acquire tenure even after three years of service. Orange-Ulster BOCES had appointed Yastion to a federally funded position and his annual employment contracts specifically indicated that “tenure does not apply to this position.”

Mohr was no more successful with his claim that he should be placed on a preferred list. The Appellate Division said that “it is well settled that a teacher is entitled to be placed on a preferred eligible list if he or she is certified in the same or a similar tenure area.”

Pointing out that Mohr was not certified to teach in the Elementary Education or a similar tenure area, the court said that while he held a permit that was the equivalent of certification to teach Seneca Language/Iroquois Culture, “the closest tenure area to Seneca Language/Iroquois Culture is the foreign languages tenure area, which, said the court, applies to seventh grade and above, not to the elementary grades.” Accordingly, the Appellate Division dismissed this branch of his appeal as well, holding that Mohr was not “entitled to placement on a preferred eligibility list.”

An appeal of an arbitration award must be perfected within the controlling statute of limitations

An appeal of an arbitration award must be perfected within the controlling statute of limitations

Rodriguez v NYC Transit Authority, 269 A.D.2d 600, Motion for appeal denied, 96 N.Y.2d 704

Hermino Rodriguez was dismissed from his position of cleaner with the New York City Transit Authority after being found guilty of disciplinary charges by a tripartite arbitration board.

Objecting to his termination, Rodriguez filed an Article 78 petition. A State Supreme Court judge vacated the arbitration award and directed the Authority to reinstate Rodriguez to his former position with back salary.

Find anything wrong with this? The Appellate Division did and overturned the lower court’s ruling.

In the words of the Appellate Division, “[c]ontrary to the Supreme Court’s determination, the only proper proceeding to seek review of the arbitrators’ decision in this case would be pursuant to CPLR [Civil Practice Law and Rules] Article 75...” not Article 78.

In addition, Section 7510 of the CPLR has a relatively short statute of limitation. The motion to vacate the arbitration award must be filed within 90 days of the receipt of the arbitrators’ decision.*

Rodriguez received a copy of the arbitration award affirming his termination on July 24, 1997. He filed his Article 78 petition, which was not heard until November 15, 1997. By that time it was too late for him to file an Article 75 petition.

While the Supreme Court justice treated Rodriguez’s Article 78 proceeding as an application pursuant to Article 75 of the CPLR, which he could do, the court did not have the power to extend the Statute of Limitations controlling the filing Article 75 actions.

The point here is that Rodriguez could have filed his motion to vacate the arbitration award within 90 days of his receiving the determination even if he had already filed an Article 78 action. The fact that he had started an Article 78 action, however, did not toll the running of the statute of limitations applicable in an Article 75 pro­ceeding.

* Education law Section 2030-a.5 provides an even shorter statute of limitations for challenging an adverse  disciplinary arbitration award – 10 days: Section 3020-a.5 Appeal. Not later than ten days after receipt of the hearing officer’s decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seven thousand five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.

Termination of educator for posting sex ad on Craigslist while off-duty upheld by California court

Termination of educator for posting sex ad on Craigslist while off-duty upheld by California court Source: Meyers Nave PLC. Reproduced with permission. Copyright © 2011, Meyers Nave. All rights reserved From time to time disciplinary charges will be filed against a public employee for alleged off-duty misconduct. In a posting on its Law Blog Public Law News, Meyers Nave notes the decision in San Diego Unified School District v Commission on Professional Competence. It reports: “In San Diego Unified School District v. Commission on Professional Competence (Lampedusa), --- Cal. Rptr. 3d ---, 2011 WL 1234686 (ordered published May 3, 2011), the California Court of Appeal upheld a school district's dismissal of a schoolteacher who was terminated for posting a sexually explicit ad and photos of himself on Craigslist while off duty. The ad neither identified the school nor that he was a teacher.  Nevertheless, the Court found the dismissal was justified based on the teacher's "evident unfitness" to serve as a teacher and that he had engaged in "immoral conduct" in posting the ad. “In reversing the decision of the Superior Court (which upheld the Commission's finding of no cause for dismissal), the Court of Appeal affirmed the principal that "[t]here are certain professions which impose . . . responsibilities and limitations on freedom of action which do not exist in regard to other callings. Public officials such as judges, policemen and schoolteachers fall into such a category." “The Court's decision relied in part on the United States Supreme Court's ruling in City of San Diego v. Roe, 543 U.S. 77 (2004). In Roe, the Court upheld the termination of a police officer discharged for selling homemade pornographic videos on an online auction site. Notably, the Court held that although the police officer's activities occurred outside of work and were purportedly unrelated to his employment, they were nonetheless "detrimental to the mission and functions of the employer." Accordingly, the City of San Diego was justified in disciplining the officer for his conduct.  “The Court of Appeal in Lampedusa applied this same principal to find that "the disciplinary action taken by the District did not have an adverse impact or chilling effect on Lampedusa's constitutional rights." The decision thus supports the idea that, despite the substantial limitation on an agency's ability to discipline public employees for off-duty conduct, courts will uphold discipline for off-duty conduct when there is a sufficient nexus to the workplace, and are more likely to find that nexus with particular job classifications such as public safety. “PRACTICE TIP: A public employer considering discipline for off-duty conduct should carefully scrutinize the conduct at issue and surrounding circumstances in evaluating whether there is a sufficient nexus to the workplace to justify the discipline. As noted in the Lampedusa and Roe decisions, a public employee's position and job responsibilities can factor into that analysis.”

Recent decisions reported by the New York City Office of Administrative Trials and Hearings

 Recent decisions reported by the New York City Office of Administrative Trials and Hearings 

A deputy sheriff who served as union treasurer was discovered to have transferred funds totaling $13,266, drawn from union accounts into his own bank account. When confronted, he refused to reimburse the union or provide receipts showing how the money was spent. Administrative Law Judge John Spooner found that respondent’s theft was inconsistent with his law enforcement responsibilities, and recommended termination from employment. Dep’t of Finance v. Smyth (in PDF), OATH Index No. 1285/11 (Mar. 9, 2011), adopted, Comm’r Dec.

An eligibility specialist who was arrested for participating in a scheme to defraud Medicaid, was charged with failing to report her arrest, accessing New York City Human Resources Administration’s Welfare Management System (“WMS”) without authorization, obtaining information on four Medicaid beneficiaries, and providing the information to an outside party for compensation. Administrative Law Judge Ingrid Addison found no proof that respondent knowingly participated in a conspiracy to defraud Medicaid, or that she received any form of compensation. However, petitioner proved that respondent made four attempts to login to WMS with a supervisor’s password in violation of HRA’s policies. Because she found no evidence that respondent was knowingly and willingly complicit in the scheme, the ALJ found termination to be disproportionate to the proven misconduct and recommended that respondent be demoted to a position where she no longer has access to WMS and the sensitive agency information on that system.  Human Resources Admin. v. Mays (in PDF), OATH Index No. 1299/11 

Administrative Law Judge Ingrid Addison recommended dismissal of multiple charges against a computer specialist that she was not competent to perform her job. Petitioner proved that respondent made six errors in a six-month period, but failed to prove that respondent’s errors were willful, or that there was such a proliferation of them so as to deem her incompetent. Petitioner established respondent was insubordinate when she yelled at her supervisor, did not respond to a voice message, and did not update operating procedures properly. The recommended penalty was a 25-day suspension. Transit Auth. v. Victor (in PDF), OATH Index No. 799/11 (Mar. 3, 2011), adopted, Comm’r Dec

New York City Human Resources Administration alleged that respondent was absent without authorization for three periods totaling 16 months. Respondent asserted that her absences were caused by various medical conditions, particularly depression. However, respondent did not provide sufficient proof of her medical conditions. She admitted that she was never treated for depression and that her absences were not authorized. Administrative Law Judge Joan Salzman found that, though respondent had some personal difficulties, termination of employment was the appropriate penalty for her lengthy AWOL, where she had failed to follow procedures for medical absences and to communicate with the Administration about her need for leave. Human Resources Admin. v. Gonzalez (in PDF), OATH Index No. 972/11

Compelling an employee to answer work-related questions

Compelling an employee to answer work-related questions

Compelling an employee to answer work-related questions has been considered by New York and Federal courts in a number of cases. Below are listed some of the holdings by courts concerning some basic “Fifth Amendment considerations” in the context of administrative disciplinary action:

1. Forcing an employee to answer work-connected questions or be terminated from his or her position generally precludes criminal prosecution based on those answers. Testimony obtained under threat of the loss of public employment provides the employee with limited immunity in criminal prosecutions based on the individual’s responses to such inquiries.* Essentially testimony provided under threat of loss of the individual’s public employment may not be used as a basis for, or in, subsequent criminal prosecution involving that individual. [Lefkowitz v Turley, 414 US 70]. The Court of Appeals addressed this issue in People v Corrigan, 80 NY2d 326. The Court of Appeals said that under both state and federal law any statement made under the threat of dismissal is protected by the privilege against self-incrimination and is “automatically immunized from use in criminal proceedings.” The court said that the immunity that attaches to any statement that a public worker gives under compulsion bars the use of the statement itself, as well as any evidence derived directly or indirectly from it, in any criminal prosecution.

2. The several decisions in Mountain v Schenectady [474 NY2d 612; 453 NY2d 93 and 428 NY2d 772] focus on the impact of an employee’s refusal to waive his or her immunity from prosecution and suffers the loss of his or her public office as a result of such refusal. The Mountain rulings focused on the relationships between a refusal to waive immunity from prosecution and the loss of public office.**

3. Where an employee is entitled to immunity with respect to the employee’s admissions or statements made in the course of a disciplinary investigation because it had been compelled under threat of termination, “that immunity would dissolve in the face of false allegations being filed.” [Seabrook v Johnston, 660 NY2d 311, United States v Apfelbaum, 445 U.S. 115]. In other words, transactional or use immunity does not permit the individual to lie.

4. The U.S. Supreme Court unanimously held that a federal government agency could impose a harsher discipline on an employee who lied while being investigated for job-related conduct. Although only federal employees were involved, the ruling may influence cases involving state and local employees. As to a "Fifth Amendment" defense in such cases, in Brogan v United States, 522 US 398, the Supreme Court upheld the conviction of a former union official who falsely answered a federal investigator's questions. The Court held that the Fifth Amendment privilege against self-incrimination does not bar prosecuting an individual who answers questions falsely in contrast to his or her refusing to answer the same inquiries.

5. The Supreme Court, in an opinion by Chief Justice William H. Rehnquist, held that in the event employees remain silent in the course of a disciplinary action, citing the Fifth Amendment or some other reason, the appointing authority is free to consider such silence and draw adverse inferences in making its determination in a disciplinary action.

6. An appointing authority may experience a situation in which an attempt to discipline an employee appears frustrated because the employee claims that he or she has been granted immunity in connection with a criminal proceeding. According to the Appellate Division, administrative disciplinary action may proceed notwithstanding the claimed immunity (Greco v Board of Nursing Home Examiners, 91 AD2d 1108). In Greco, a Special Prosecutor granted Greco “transactional immunity from prosecution” in connection with a criminal matter in exchange for his cooperation. The Nursing Home Examiners subsequently revoked Greco’s nursing home administrator’s license. The Appellate Division, in a split decision, rejected Greco’s argument that his immunity barred revocation of his license. The court ruled, “a prosecutor cannot divest an independent body of its lawful discretion by promising broad immunity.” This is consistent with the view that an administrative disciplinary action based on the same events that may have resulted in a criminal prosecution is not “double jeopardy.” Had the board been a party to the granting of immunity, however, it would have been bound by the agreement.

7. Statements made by an employee to the police during an investigation of criminal charges filed against the employee constitutes “competent evidence” and may be admitted into evidence during the administrative disciplinary hearing (Dacey v County of Dutchess, 121 AD2d 536). In contrast, where the administrative disciplinary action precedes criminal action, in the event the appointing authority threatens to terminate or take other adverse action against an employee if he or she does not answer work-related questions, the employee’s answers to those questions are automatically shielded from use in a subsequent criminal prosecution under the doctrine of “transactional immunity” or “use immunity.”

8. Witnesses who may have participated in wrongdoing are not automatically granted transactional or use immunity by virtue of their testimony in an administrative procedure. Further, an administrative tribunal cannot bind the district attorney by a promise of immunity from criminal prosecution in exchange for the individual’s testimony as a witness at an administrative hearing. By the same token, the district attorney cannot bind an administrative tribunal with respect to its exercising its lawful authority. If immunity is a consideration, the witness must be granted such immunity by the appropriate authority in order for it to be effective and binding on that authority.

Responding to the following inquiry:

May a police officer be compelled to answer questions posed by a department's internal affairs division concerning on-duty and off-duty activities that directly involve their abilities to “carry out the public trust?” the Attorney General advised that:

In Matt v LaRocca, 71 NY2d 154, the Court of Appeals said that the State “may compel any person enjoying a public trust to account for his activities and may terminate his services if he refuses to answer relevant questions, or furnishes information indicating that he is no longer entitled to public confidence.”

In addition, the Attorney General noted that the United States Supreme Court in Garner v Broderick, 392 US 273, held that if an public officer or employee refuses to answer questions specifically, directly and narrowly related to the performance of his official duties and is not required to waive immunity with respect to the answers in a criminal prosecution, the constitutional privilege against self-incrimination would not bar termination for such refusal to answer.

On the issue of “off-duty” conduct, however, the Attorney General said that there is no explicit statement in case law to the effect that a public officer or employee may be compelled to answer questions concerning such activities. The opinion then indicated that “presumably some off-duty activities are relevant to an employee's performance of his public trust ... a factual determination that must be made on a case-by-case basis.”

The Attorney General concluded that an “internal affairs division [of a law enforcement agency] may compel officers to answer questions directly relating to their official duties, assuming that no waiver of immunity is required,” suggesting that “it would be wise to coordinate the department's investigation of such persons with the district attorney's office.” [Informal Opinion of the Attorney General 93-12].

* Such limited immunity is usually referred to as “transactional immunity” or as “use immunity.”

** Mountain, a police officer, refused to waive such immunity when called before a Grand Jury. He was dismissed following a Civil Service Section 75 disciplinary hearing for refusing to so waive immunity. The appointing authority relied on Article I Section 6 of the State Constitution which provides that a public officer if called to testify before a Grand Jury concerning the performance of official duties shall be removed from office if he or she refuses to sign a waiver of immunity. The Court concluded that demanding such a waiver violated Mountain's constitutional protection against self-incrimination. While a public officer may be removed for failing to answer questions relevant to the performance of official duties, he or she may not be dismissed for failing to waive immunity. It appears that had Mountain simply been asked relevant questions concerning his performance of his official duties, without any demand for a waiver of immunity, his dismissal for refusing to answer such questions would have been lawful.