Making a false report of an incident to an employer

Making a false report of an incident to an employer

Sweeney v Safir, 267 AD2d 99, Motion to appeal denied, 95 NY2d 753

New York City police officer Kevin Sweeney reported that he was the victim of a gunpoint robbery of his fiancée’s car. He made these allegations in both police reports and in his testimony before a Grand Jury. The commissioner determined that rather than being the victim of a robbery -- the car had been simply stolen from the street when Sweeney left it double-parked with the keys in the ignition and the engine running. Sweeney was dismissed from his position for making false statements.

The Appellate Division unanimously confirmed the Commissioner's action, finding that “no basis exists to disturb” the commissioner's determination and that the penalty of dismissal does not shock its sense of fairness.

Medical examination procedures established by the employer negotiable

Medical examination procedures established by the employer negotiable

Professional Firefighters, Local 32, v City of Utica, 32 PERB 3056

The City of Utica unilaterally directed its firefighters to take a physical examination administered by a City-designated physician. It advised firefighters that it would terminate anyone who failed the examination. Local 32 filed an unfair labor practice charge with PERB alleging that the City had refused to negotiate “specific subjects related to the City's directive.”

PERB directed the City to negotiate the local's demands concerning “the pre-testing, testing, post-testing and re-testing procedures” and related issues, including the firefighter's ability to select the examining physician. 

Public policy and arbitration awards

Public policy and arbitration awards

Correctional Officers PBA v State, 94 NY2d 321

Edward Kuhnel, a State correctional officer, was suspended from duty and served with disciplinary charges after the Department of Correctional Services learned that he flew a Nazi flag from the front porch of his home on December 10, 1996 -- the 55th anniversary of Hitler's declaration of war on the United States.

Kuhnel was charged with violating two department rules:

[1] “No employee, whether on or off duty, shall so comport himself as to reflect discredit upon the Department or its personnel;” and 

[2] “An employee shall not join or otherwise affiliate himself with any organization, body, or group of persons when such association or affiliation will place his personal interest or interest as a member of such group in conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee.”

The Department also charged that Kuhnel's conduct “endangered the safety and security of all facilities in the New York State Department of Correctional Services.”

The disciplinary arbitrator found that the department failed to prove Kuhnel was guilty of the charges filed against him and ordered him reinstated to his position.

The arbitrator concluded that there was no linkage between the off-duty misconduct and Kuhnel's employment because, he said, the department failed to show that Kuhnel's conduct harmed “the department's business, adversely affected his ability to perform his job, or caused co-workers not to work with him.”

According to the arbitrator, the expectation or projection of possible harm, in contrast with evidence of actual harm, was not enough to permit restriction of the employee's symbolic free speech or regulation of his off-duty conduct. As to the charge that Kuhnel had joined or affiliated himself with an organization, that would “conflict with or otherwise interfere with the impartial and effective performance of his duties as an employee,” the arbitrator said that the department “provided no evidence of Kuhnel's affiliation with the Neo-Nazi party's objectives or activities.”

PBA filed a petition pursuant to Article 75 of the Civil Practice Law and Rules to confirm the award. The department filed a “cross-petition” in an effort to vacate the arbitration award on the grounds that “it was irrational and violated public policy.” Supreme Court granted the PBA's petition confirming the award.*

The Appellate Division, in a 3 to 5 decision affirmed the Supreme Court's action, holding that the award was rational and did not violate a strong public policy of this State. The department appealed the ruling to the Court of Appeals, which held that “our jurisprudence has carefully limited the invocation of public policy concerns as a basis for usurping the role of an arbitrator and determining a dispute on the merits.” It then affirmed the Appellate Division's determination.

The court's rational:

Collective bargaining agreements commonly provide for binding arbitration to settle contractual disputes between employees and management and the courts generally play a limited role. Courts are bound by an arbitrator's factual findings, interpretation of the contract and judgment concerning remedies and cannot examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one.

Addressing the public policy argument advanced by the department, the Court said that:

The public policy exception has its roots in common law, where it is well settled that a court will not enforce a contract that violates public policy. A court, however, may not vacate an award on public policy grounds when vague or attenuated considerations of a general public interest are at stake. Courts shed their cloak of noninterference [only] where specific terms of the arbitration agreement violate a defined and discernible public policy.

 

The Court of Appeals said that “looking at the only prong of the public policy exception argued before this Court, we conclude that the award does not violate a well-defined constitutional, statutory or common law of this State.”

* Petitions to confirm an arbitration award must be filed within one year of the determination; petitions to vacate an arbitration award must be filed within three months of the date of the award.

Statutory residency requirement to serve in elective office held constitutional

Statutory residency requirement to serve in elective office held constitutional

Matter of Walsh v Katz, 2011 NY Slip Op 04545, Court of Appeals

The relevant statute providing for the election of a town justice for Fisher's Island, Suffolk County, provides, in relevant part, for "… one town justice who shall reside upon Fisher's island in said town … such town justice residing upon Fisher's island shall, in addition to his duties as town justice, serve as a member of the Southold town board."

In July 2009, Daniel C. Ross, a resident of Southold but not a resident of Fisher's Island, filed a petition designating himself a candidate in the September 2009 primary election for the nomination of the Democratic Party as its candidate for the Fisher's Island town justice/town board member seat.

Arthur J. Walsh and Nina J. Schmid — residents of Fisher's Island — filed objections to Ross’s designating petition, alleging that it was invalid because Ross did not meet the residency requirement.

The Board of Elections denied the objections and upheld the designating petition whereupon Walsh and Schmid initiated a lawsuit seeking to prohibit the BOE from placing Ross's name on the ballot. Ross counterclaimed and, in effect, cross-petitioned to validate the designating petition, challenging, among other things, the constitutionality of the residency requirement.

Subsequently the Appellate Division upheld the constitutionality of the statute on equal protection grounds (66 AD3d 1052) holding that a rational basis standard was applicable, and that a rational basis exists to support the Legislature's determination that the fifth town justice/town board member for Southold should be a resident of Fisher's Island.*

Although Ross lost the November 2009 general election, the Court of Appeals said that this action presents a live controversy. Supreme Court converted and continued Ross's constitutional claims as a declaratory judgment action, and the Appellate Division decided the constitutional issues. Though no longer a candidate, Ross is a voter who claims that his right to vote is being unconstitutionally burdened.

The Court of Appeals affirmed the Appellate Division’s ruling, holding that the Fisher's Island residency requirement satisfies the rational basis test, explaining that in considering an equal protection challenge to a state election law a court must weigh "the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate" against "the precise interests put forward by the State as justifications for the burden imposed by its rule," taking into consideration "the extent to which those interests make it necessary to burden the plaintiff's rights."

The direct impact of the Fisher's Island residency requirement is not on one's right to vote, but on an individual's right to be a candidate for public office. The residency requirement here challenged did not require a candidate to be a resident of Fisher's Island prior to commencement of his or her term of office. In other words, said the court, “the winner of the town justice/town board position does not need to establish residency on Fisher's Island until the beginning of his/her term, and must only retain that residency for the duration of the term.”

Accordingly, any Town of Southold, Suffolk County resident who would otherwise be eligible to run for political office may run for the Fisher's Island seat. 

The Court of Appeals also noted that the United States Supreme Court stated a “basic teaching of representative government … that elected officials represent all of those who elect them, and not merely those who are their neighbors," citing Dusch (387 US 112, Dallas County, Alabama v Reese (421 US 477) and Fortson v Dorsey, 379 US 433.

As the Fisher's Island seat is subject to a town-wide vote, the individual elected to fill the seat represents the entire town, not just the residents of Fishers Island. Accordingly, said the court, “Ross's contention that the residency requirement gives the people of Fishers Island a permanent advantage of greater representation is unavailing.”

* With respect to Supreme Court's ruling that the prevailing candidate need not abide by the residency requirement until 30 days after beginning his or her term of office, the Appellate Division modified Supreme Court's order by holding that, in this instance January 1, 2010, was the appropriate date by which a candidate had to meet the residency requirement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_04545.htm

Sexual harassment complaints

Considering complaints alleging sexual harassment

Rider v Rondout Valley CSD, Comm. Ed. Decision 14238

The decision of the Commissioner of Education in the appeal filed by Carolyn Rider concerns the Rondout Valley Central School District’s investigation of Rider’s complaint of sexual harassment by a co-worker and the remedy provided by the district.

Rider, a secretary in the district’s middle school’s guidance office, filed charges that middle school guidance counselor, Carol Arnone-Ippolitti, had engaged in actions against her that constituted sexual harassment.

The superintendent of schools, David S. Giles, conducted an investigation of Rider’s allegations. In the course of the investigation, which lasted several months, Giles conducted more than 70 interviews, meeting with Rider, Arnone-Ippolitti, and other members of the staff.

Giles verified that a number of Rider’s allegations were true and as to those, he found that “Arnone-Ippolitti’s actions were offensive, insensitive, created a hostile work environment and rose to the level of sexual harassment.”

In his report to the board, Giles recommended that Arnone-Ippolitti:

1. Be given a “counseling letter,” a copy of which was to be placed in her personnel file;

2. Undergo counseling and sensitivity training;

3. Be assigned to another work location and her “behavior closely monitored by the building principal.”

In addition, Giles said that a copy of his report to the board should also be placed in Arnone-Ippolitti’s personnel file.

Rider appealed some of the superintendent’s findings to the board. After reviewing the entire record in executive session, the board concluded only three of the 21 incidents alleged by Rider “could be characterized as sexual in nature.” The board also determined that these three incidents were not sufficient to “form a basis for hostile work environment sexual harassment.”

However, the board also said that Arnone-Ippolitti “had engaged in distasteful, unprofessional, and unacceptable conduct.” Although the board initially directed that Arnone-Ippolitti “be returned” to her middle school position, it reversed itself after Rider asked it to “reconsider its decision.”*

Rider appealed, complaining that there were deficiencies in Giles’ investigation such as the individuals interviewed were not sworn to tell the truth. She also objected to Giles findings that did not support her allegations of misconduct on the part of Arnone-Ippolitti and to a number of elements in the board’s resolution of the matter.

Before reaching the merits of Rider’s appeal, the Commissioner pointed out that a necessary party, Arnone-Ippolitti, had neither been named in the appeal nor served with copies of Rider’s “notice and petition.” This was a fatal omission on Rider’s part and the Commissioner dismissed her appeal. The decision notes that if the Commissioner were “to decide any aspect of this appeal in [Rider’s] favor, Ms. Arnone-Ippolitti’s rights would unquestionably be affected.”

However, the Commissioner did take the opportunity to note that even if Rider’s appeal had not been dismissed on procedural grounds, it would have been dismissed on the merits.

The Commissioner noted the “extensive investigation” conducted by Giles, which resulted in Arnone-Ippolitti being given a counseling memorandum, sensitivity training and that her activities at work were being monitored in support of this conclusion.

The Commissioner noted that while the board disagreed with some of the superintendent’s findings -- i.e., the presence of a hostile work environment, it did not change his recommendations as to the personnel actions to be taken against Arnone-Ippolitti.

The rule a case such as this is that the Commissioner will not substitute his judgment for that of a school board unless it is demonstrated that board’s actions were arbitrary or capricious, constituted an abuse of discretion or failed to comply with law.

In contrast to finding any of these elements present in this case, the Commissioner said that after reviewing the record concerning the procedures following in investigating Rider’s complaints and the action taken by the board, there was “no basis for substituting” his judgment for that of the superintendent or the board.

* The board apparently adopted the recommendations of the superintendent concerning counseling and other remedial personnel actions resulting from his investigation of Arnone-Ippolitti’s conduct.