Former employee entitled to a name clearing hearing upon satisfying the “stigma plus” test

Former employee entitled to a name clearing hearing upon satisfying the “stigma plus” test

Knox v New York City Dept. of Educ., 2011 NY Slip Op 04735, Appellate Division, First Department

State Supreme Court, New York County rejected the New York City Department of Education’s motion to dismiss the petition filed by Dr. Tulsa Knox challenging the Department’s decisions that Dr. Knox was ineligible for re-employment, and granting Dr. Knox’s petition to the extent of remanding the matter for a name-clearing hearing.*

The Appellate Division unanimously affirmed the Supreme Court’s ruling.

The court said that Dr. Knox had demonstrated "stigma plus," i.e., defamation by the government, coupled with a likelihood of dissemination of the stigmatizing material that could significantly impair her ability to gain employment as a school psychologist in the future.

The Appellate Division said that the placement of Dr. Knox’s name on the Department’s  "Ineligible/Inquiry List" and certain adverse information concerning Dr. Know had been  disseminated “not only within the Department of Education, but also to the Bronx County District Attorney's Office and the State Department of Education.” This, said the court, satisfied Dr. Knox’s burden of showing “stigma plus”.

* N.B. Absent a violation of a constitutional or statutory provision, reinstatement is not an available remedy to an individual even if vindicated at a name clearing hearing.

The decision is posted on the Internet at: 
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04735.htm

Refusal to answer questions during an administrative disciplinary investigation

Refusal to answer questions during an administrative disciplinary investigation

Matter of Eck v County of Delaware, 36 AD3d 1180

There were many issues considered by the Appellate Division in deciding Eck’s appeal of an adverse Section 75 Civil Service Law disciplinary determination.

One issue involved the law regarding compelling an employee to answer questions concerning his performance against his will in the course of a pre-disciplinary investigation that could result in administrative disciplinary action and, or, criminal action being taken against the individual.

Kenneth R. Eck, Jr., a deputy sheriff with the Delaware County Sheriff’s Department, was served with Section 75 disciplinary charges.

Charges filed against Eck included the allegation that he had conducted an unauthorized investigation of two Delaware County employees, one of whom was Eck’s former wife, because of Eck’s suspicion that the two were involved in a romantic relationship.

Among the several charges leveled against Eck was one that alleged that he refused to answer questions regarding his activities during the Sheriff’s investigation of incident.

The Section 75 Hearing Officer found Eck guilty of the charges filed against him. After reviewing Eck’s personnel file, the Hearing Officer recommended Eck be dismissed from his position. The County adopted the Hearing Officer’s findings and recommendation and terminated Eck.

In rejecting Eck’s appeal seeking reinstatement to his former position, the Appellate Divisions considered a number of elements raised by Eck in an effort to have the disciplinary decision vacated. One element concerned Eck’s argument that the disciplinary action was unlawful because it compromised his Fifth Amendment constitutional right against self-incrimination.

In response to Eck’s claim that he could not be disciplined for invoking his Fifth Amendment privilege against self-incrimination when he refused to answer certain questions posed by the attorney representing the County during the investigation of his “activities during off-duty hours,” the Appellate Division pointed out that:

1. It is understood that the Fifth Amendment privilege against self-incrimination protects an individual not only in the context of a criminal trial, “but also privileges him not to answer official questions put to him in any other proceeding, civil or criminal, formal or informal, where the answers might incriminate him in future criminal proceedings.”

2. An individual’s “[a]nswers may be compelled regardless of the privilege if there is immunity from federal and state use of the compelled testimony or its fruits in connection with a criminal prosecution against the person testifying”.

3. In a situation where a public employee is compelled to answer questions or face dismissal, the individual’s responses are automatically cloaked with immunity.

Accordingly, said the court, “where a public servant . . . refuses ‘to answer questions specifically, directly, and narrowly relating to the performance of his official duties, without being required to waive his immunity, . . . the privilege against self-incrimination would not [be] a bar to his dismissal’”

In this instance the court found that “the questions were narrowly tailored to the matters under investigation and [Eck] was compelled to answer them on pain of termination, his answers would have been automatically cloaked by immunity.”* In view of this, the Appellate Division concluded that Eck’s “assertion of his Fifth Amendment privilege did not bar disciplinary action against him.”

This, together with the Hearing Officer’s finding that Eck (1) used his position to obtain information about a co-workers whereabouts in furtherance of his own unauthorized investigation; (2) his surveillance endangered the co-worker, who often worked undercover; (3) he disparaged the Sheriff and the Sheriff’s Department in the presence of other officers and civilians; and (4) he disclosed information about his disciplinary hearing after being instructed not to discuss it, persuaded the Appellate Division that under the circumstances, “the penalty of termination is not disproportionate to these offenses.”

* This is often referred to as “use immunity.”

Employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual

Employee organization may, through collective bargaining, negotiate away an employee’s statutory right to a disciplinary procedure provided an alternate procedure providing for administrative due process is available to the individual
Matter of Hickey v New York City Dept. of Education, 2011 NY Slip Op 04541, Court of Appeals

Helen Hickey and Rachael Cohn, tenured teachers in the New York City School system, commenced Article 78 proceedings against the Board of Education seeking court orders compelling the Board to expunge "letters of reprimand" from their respective personnel files, contending that the Board’s actions failed follow Education Law §3020-a disciplinary procedures. Both letters had been placed in their respective personnel files and indicated that the matter "may lead to further disciplinary action."*

The Board contended that the letters were properly placed in the teachers’ files because, pursuant to the controlling Collective Bargaining Agreement, their union had negotiated a waiver of the §3020-a procedures with respect to the placement of letters of reprimand in tenured teacher's files and it had been replaced with a different procedure.

Education Law §3020(1) provides: "No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section [3020]-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement."

Noting that §3020-a does not define "discipline," the Court of Appeals said that §3020-a authorizes a hearing officer to impose as a penalty "a written reprimand, a fine, suspension . . . without pay, or dismissal." Section 3020(4)(a), said the Court, further provides that "Notwithstanding any inconsistent provision of law, the procedures set forth in section [3020]-a of this article . . . may be modified by agreements negotiated between the city school district of the city of New York and any employee organization representing employees or titles that are or were covered by any memorandum of agreement executed by such city school district and the united federation of teachers on or after [June, 10, 2002]."

The Court of Appeals, assuming, but not deciding, that the letters complain of constituted "discipline" for purposes of §3020-a, decided “there is ample basis to conclude that the union knowingly waived the procedural rights granted in Education Law §3020-a in this limited arena.”

As the letters at issue were held as not being subject to §3020-a procedures, the Court ruled that neither Hickey nor Cohen was not entitled to have them expunged from their respective personnel files.

This not the first time that the Court of Appeals has addressed the issue of alternatives to a statutory disciplinary procedure. In Antinore v State [40 NY2d 6] the Court said that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure so long as the alternate procedure provided constitutional due process protections equivalent to those available under the statutary proceedure that it replaced.

The collective bargaining agreement** controlling in Antinore provided that an individual served with administrative disciplinary charges could elect either a disciplinary proceeding set out in a collective bargaining agreement or, in the alternative, elect to have the matter considered pursuant to a statutory disciplinary procedure, in this instance Civil Service Law §75.

Antinore elected to have the charges filed against him adjudicated pursuant to the procedure set out in the collective bargaining agreement. After the arbitrator found him guilty, Antinore sued, contending that he was entitled to a §75 disciplinary hearing as a matter of law. The Court of Appeal rejected his claim, holding that where an individual has elected to have disciplinary charges filed against him or her adjudicated pursuant to a process that provided administrative due process, he or she may not later claim the right to relitigate the charges under a statutory due process proceeding.

Significantly, the Court of Appeals said that a union could bargain away the employee’s statutory disciplinary rights in favor of an alternative disciplinary procedure if the alternate procedure provided constitutional due process protections equivalent to those available under the statute it replaced.

* See http://publicpersonnellaw.blogspot.com/2011/01/constructive-criticism-or-discipline.html setting out the differences between letters constituting “constructive criticism” and letters constituting “reprimand.”

** This option was set out in the initial collective bargaining agreement negotiated between the State as an employer and the Civil Service Employees Association with respect to employees in negotiating units represented by CSEA.

The Hickey decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04541.htm

Rules of the New York State Civil Service Commission typically do not control with respect to employees of a political subdivision of the State.

Rules of the New York State Civil Service Commission typically do not control with respect to employees of a political subdivision of the State.

Matter of Civil Serv. Employees Assn., Inc. v Baldwin Union Free School Dist., 2011 NY Slip Op 04461, Appellate Division, Second Department

Francesco Pignataro, an employee of the Baldwin Union Free School District, filed a grievance and a demand for arbitration alleging that the District wrongly removed him from the payroll. Ultimately a proposed settlement of the matter was negotiated pursuant to which, among other things, it was agreed that Pignataro would receive the sum of $50,000 as compensation for his leave accruals in exchange for his resignation and the withdrawal of his grievance.

The Appellate Division subsequently ruled that Pignataro's letter of resignation was not "delivered" to the Board so as to preclude Pignataro from unilaterally withdrawing his letter of resignation without the Board's consent "under the pertinent Civil Service Law regulation (see 4 NYCRR 5.3[c])."*

However, 4 NYCRR 1.1, Application of rules, provides that

“Except as otherwise specified in any particular rule, these rules shall apply to positions and employments in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service.”

Accordingly, 4 NYCRR 5.3[c] controls only with respect to employees of the State of New York as an employer and those entities for which the Civil Service Law is administered by the New York State Department of Civil Service. The Baldwin Union Free School District is not such an entity.

A number of local civil service commissions have adopted a rule similar to 4 NYCRR 5.3[c].** For example, Westchester County Civil Service Rule 17 addresses resignations and provides, in pertinent part, as follows:

“17.3 Withdrawal or amendment [of a resignation]. A resignation may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority.”

In the event the Nassau County Civil Service Commission has adopted a rule addressing the ability of an individual to withdraw his or her resignation, presumably the Appellate Division would apply that rule in resolving the matter.

* 4 NYCRR 5.3(c) provides that a resignation of a civil service employee, which must be in writing, "may not be withdrawn, cancelled or amended after it is delivered to the appointing authority, without the consent of the appointing authority." However, this rule applies only to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service. Many local civil service commissions have adopted a similar rule.:

** Section 20 of the Civil Service Law sets out the procedures to be followed by a local civil service commission or personnel officer wishing to amend its “personnel rules.” It provides that such rules may be amended only after a public hearing and requires the approval of the State Civil Service Commission. Finally, to have the “force and effect of law,” the amendment must be filed with the Secretary of State to complete the process.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04461.htm

Appellate Division holds that Commissioner of Education has primary jurisdiction to decide tenure area matters

Appellate Division holds that Commissioner of Education has initial jurisdiction to decide tenure area matters

Matter of Moraitis v Board of Educ. Deer Park Union Free School Dist., 2011 NY Slip Op 04254, Appellate Division, Second Department

Deep Park granted Regina Moraitis tenure in the position of "computer teacher," effective August 31, 2003. On January 16, 2009, her position as "computer teacher" was abolished.  

Moraitis filed a proceeding pursuant to CPLR Article 78 seeking a court order compelling Deer Park to reinstate her as a full-time teacher in an accepted tenure area. Supreme Court granted Moraitis’ petition directing Deer Park to “reclassify” Moraitis into an accepted tenure area without loss of tenure time, directed her reinstatement as a full-time teacher, and directed the reinstatement of her benefits from the date of dismissal, with damages in the nature of lost salary and insurance payments.

Deer Park appealed and the Appellate Division vacated the lower court’s ruling.*

The Appellate Division, agreeing with Deer Park’s contention that the proceeding should have been dismissed on the ground that the Commissioner of Education had primary jurisdiction** over the dispute, explained: “It is within the unique knowledge and expertise of the Commissioner of Education to determine the factual issues of whether the [Moraitis] has tenure in an accepted tenure area, and whether her former position, and any new position which she may seek, are similar in nature.


* The Appellate Division, in considering a procedural defense, noted that “Under the facts of this case, a notice of claim pursuant to Education Law §3813(1) was not required.”

** "The doctrine of primary jurisdiction,” -- where the courts and an administrative agency have concurrent jurisdiction and the dispute involves issues beyond the conventional experience of judges . . . "the court will stay its hand until the agency has applied its expertise to the salient questions" [see Flacke v Onondaga Landfill Sys., 69 NY2d 355].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04254.htm