Substantial evidence that the educator would be reemployed during the succeeding school year defeats teacher’s claim for unemployment insurance between school years

Substantial evidence that the educator would be reemployed during the succeeding school year defeats teacher’s claim for unemployment insurance between school years
Matter of Murphy v Commissioner of Labor, 2011 NY Slip Op 05396, Appellate Division, Third Department

A professional employed by an educational institution is ineligible for unemployment insurance benefits for the period between two successive academic years when he or she has received a reasonable assurance of continued employment.*

Appeal from a decision of the Unemployment Insurance Appeal Board, filed October 1, 2010, which ruled that claimant was ineligible to receive unemployment insurance benefits because she had a reasonable assurance of continued employment.

Patricia J. Murphy was employed as a per diem substitute teacher in Manhattan and the Bronx by the New York City Department of Education during the 2008-2009 school year for a total of 154 days. On June 12, 2009, claimant was sent a letter by the employer assuring her of continued employment during the upcoming 2009-2010 school year, with the amount of work available and the economic terms and conditions of employment to be substantially the same as in the previous year.

Murphy applied for unemployment insurance benefits for the summer of 2009 buts the Unemployment Insurance Appeal Board ultimately determined that she was ineligible to receive them as she had received a reasonable assurance of continued employment. Murphy appealed the Board’s determination.

The Appellate Division affirmed the Board’s ruling, holding that the testimony by the school district, together with the letter sent to Murphy indicating a belief she would be offered the same amount of work during the succeeding academic year, provide substantial evidence to support the Board's determination.

* Labor Law §590 [10]

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2011/2011_05396.htm

Applicant for employment as a corrections officer rejected because of misdemeanor convictions

Applicant for employment as a corrections officer rejected because of misdemeanor convictions

Matter of Little v County of Westchester, 36 AD3d 616

Kith Little was disqualified for employment as a Westchester County corrections officer because he had been earlier convicted of misdemeanors.

He sued Rocco Pozzi, the Westchester County Commissioner of Correction, seeking a court order directing his appointment as a corrections officer. The court sustained the Commissioner’s determination that Little’s previous misdemeanor convictions rendered him unfit for the position of correction officer.

The Appellate Division said that the appointing authority has wide discretion in determining the fitness of candidates, “which discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied.”

Finding that Pozzi’s decision was neither irrational nor arbitrary, the court dismissed Little’s appeal.

Section 50.4 of the Civil Service Law permits the State Department of Civil Service or a municipal commission or personnel officer to "investigate the qualifications and background of an eligible after he [or she] has been appointed ... and upon finding facts which if known prior to appointment, would have warranted his [or her] disqualification ... direct that his [or her] employment be terminated." 

Except in cases of fraud, there is a three-year statute of limitation on disqualifying an employee pursuant to Section 50.4.

Misinformation may be given by a candidate when completing an application for employment. The Angelopoulos case, [Angelopoulos v New York City Civil Service Commission, Appellate Division, First Department], however, did not involve misinformation but rather the omission of certain information from the application form. According to the decision by the Appellate Division, First Department, Angelopoulos was disqualified from his position of police officer on the grounds that he "fraudulently omitted his military service on his application for employment...."

Although Angelopoulos stated that he had no prior military service and that he had never used an alias, it was determined that he had enlisted in the United States Army under the name of Angelo.

This misrepresentation was discovered during a post-employment investigation that revealed that a felony warrant had been issued against Angelopoulos for desertion from the Army and that he was given a "General Discharge in absentia" from the Army. On the basis of this falsification, Angelopoulos was disqualified from the police force for fraud. His dismissal upheld by the New York City Civil Service Commission.

Under Section 50.4 of the Civil Service Law, an individual may be disqualified only for "fraud of a substantial nature" in his application. Angelopoulos argued that he did not commit any fraud as he had agreed to a general discharge in connection with the settlement of a disciplinary matter while in the Army and that "he understood that his period of service was a ‘nullity’, which he need never reveal."

The Appellate Division said that Angelopoulos neither disclosed the fact of his service nor his use of an alias in connection with his military service. This, it ruled, "could not be said that these misrepresentations were immaterial."

The Court also noted that Angelopoulos falsely indicated that he was employed in a civilian job while he was actually in the military, which it said "goes beyond mere concealment." It then sustained his disqualification by the Commission.

Another case, Carchietta v Department of Personnel, 568 NY2d 386, involved the disqualification of a candidate for appointment to police officer positions based on information revealed in the course of a pre-employment checking the applicant's background.

Carchietta was disqualified by the New York City Department of Personnel for appointment as a police officer. The Department had disqualified him on the grounds of "character" following a background investigation. According to the report, Carchietta, as a youth, had been arrested in connection with his alleged participation in the transfer of a forged prescription for illicit drugs. Apparently, the Department decided that his explanation of his involvement in the incident was "questionable."

Claiming that the Department's decision to disqualify him was arbitrary and capricious, Carchietta sued. Rejecting his appeal, the Appellate Division said that Carchietta had failed to present evidentiary facts from which an inference of bad faith, illegality or arbitrary or capricious conduct can be drawn. The court said that record supported the Civil Service Commission's "exercise of its broad discretion" in disqualifying Carchietta for the position of police officer on the basis of his "character."

Section 106 of the Civil Service Law makes it a misdemeanor for any individual to impersonate a candidate in a civil service examination as well as a candidate allowing another individual to impersonate him or her in the examination.

Although litigation involving disqualification of a candidate pursuant to §50.4 of the Civil Service Law is relatively common, cases dealing with alleged violations of §106 are rare. One of the few cases reported concerning violations of §106 is People v Knox, l78 AD 344, a case decided in 1903, in which the Appellate Division ruled that a civil service commission may disqualify an applicant where it finds that fraud or deception has been practiced.

Daubman v Nassau County Civil Service Commission, 601 NY2d 14, notes that §50.4(b) of the Civil Service Law allows a civil service commission to disqualify an individual for appointment if the applicant or appointee "is found to have a disability which renders him or her unfit to perform in a reasonable manner the duties of the position in which he or she seeks employment, or which may reasonably be expected to render him or her unfit to continue to perform in a reasonable manner the duties of the position...." 

The Daubman decision suggests that a civil service commission should consider the standards imposed by the State's Human Rights Law in determining whether an individual should be disqualified because of a "disability." 

Using the agency's equipment for non-official purposes

Using the agency's equipment for non-official purposes

Ekpecham v Ross, Decisions of the Commissioner of Education No. 14,651

Priscilla A. Ekpecham asked the Commissioner of Education to remove Superintendent of the City School District of Mt. Vernon Ronald O. Ross from his position because that Ross allowed the school district's postage machine to be used for a mass mailing of a letter being mailed by a not-for-profit organization called “Saving Our Children Through Prayer Power.” The envelopes and stationary used in the mailing displayed the organization's name, and listed its address as “c/o Grace Baptist Church” in Mount Vernon.

According to Ekpecham, the letter was an invitation to a public meeting allegedly to exhort public support for Ross and the Mount Vernon school system, and to support the use of school uniforms in the public schools.

Ross, in rebuttal, said that the Church reimbursed the district in the amount of $1,092.46 for the cost of postage for the mailing. Accordingly, Ross argued, because no district funds were used for the mailing, there was no need to obtain authorization from the board of education, and any claims regarding that mailing are now moot.

Although the Commissioner dismissed Ekpecham's appeal as untimely, he said that:

I am compelled to comment on the use of school district postage equipment for private purposes, irrespective of whether the cost of the actual postage is reimbursed. The school district should be mindful that the United States Constitution prohibits government action that tends to support or sponsor a particular faith or religious group. Similarly, a school may not offer a particular religious group or faith privileges or access to school property that is not generally available to the public.

The problem, said the Commissioner, was that “the use of the district's equipment, and the identification of the district's postal meter number on envelopes displaying the name and address of an organization linked to a particular religious denomination and church, creates the appearance of sponsorship by the school district of this particular religious organization, and its activities and messages.”

Without ruling on the propriety of such use, the Commissioner said that “granting unique rights to one organization creates at the very least an appearance of impropriety.” In addition, “the use of district resources, equipment, etc., also raises the specter of an illegal use of public funds for private purposes.”

Standing to appeal an arbitration award

Standing to appeal an arbitration award

Moreira-Brown v New York City Bd. of Education, 288 AD2d 21

Herbert Moreira-Brown had filed a grievance, which was pursued through arbitration. Acting pro se [on his own behalf], he then attempted to (1) confirm an arbitration award pursuant to Section 7510 of the Civil Practice Law and Rules [CPLR] and (2) vacate a second arbitration award pursuant to Section 7511 of the CPLR. The Supreme Court dismissed both of his petitions and Moreira-Brown appealed.

The Appellate Division affirmed the lower court's determination, holding that Moreira-Brown did not have standing to seek either the confirmation of the first arbitration award or the vacating of the second award.

The court pointed out that the collective bargaining agreement between Board of Education and the Union provided that an employee's grievance could be submitted to arbitration by the union. As Moreira-Brown was represented by the union at the arbitration and he failed to show that the union breached its duty of fair representation, the court found that he did not have any standing to file these Article 75 petitions. The Appellate Division commented that “[t]he record establishes that the union vigorously represented [Moreira-Brown] and there is no evidence of bad faith on the part of the union” that would justify allowing him to maintain his action against the Board of Education and his union.

Suspension of employee without pay recommended as the disciplinary penalty for insubordination.

Suspension of employee without pay recommended as the disciplinary penalty for insubordination.

New York City Dept. of Correction v Fernandez, OATH Index #1219/11

After being given an assignment by an assistant deputy warden, a correction captain went to the deputy warden’s office to angrily confront him about the assignment. The two men fought and both were injured. 

OATH Administrative Law Judge John Spooner found the captain was insubordinate in not performing the assignment as ordered and in arguing with his supervisor about the order. 

Judge Spooner also found that the captain also made false written and interview statements about the incident.

The ALJ recommended that the captain be suspended without pay for 40 days.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1219.pdf