Disciplinary hearing opened to the public

Disciplinary hearing opened to the public

Source: Adjunct Law Prof Blog; http://lawprofessors.typepad.com/adjunctprofs/

Reproduced with permission. Copyright © 2011, Mitchell H. Rubinstein, Esq., Adjunct Professor of Law, St. Johns Law School and New York Law School, All rights reserved.

Matter of Doe v. City of Schenectady 84 AD3d 1455, (3d Dep't May 5, 2011), is an interesting case. The court holds that police disciplinary hearings can be open to the public. As the court explained:

In any event, petitioners' contention that Civil Rights Law § 50-a mandates that disciplinary hearings be closed to the public is belied by both the language of the statute and its legislative history. Section 50-a (1) provides, in pertinent part:

All personnel records, used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in [CPL 1.20] shall be considered confidential and not subject to inspection or review without the express written consent of such police officer . . . except as may be mandated by lawful court order.

Section 50-a created, for reasons that will be discussed below, an exemption from document disclosure that might otherwise occur under the Freedom of Information Law (see Public Officers Law art 6; Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d 562, 567 [1986]). Nothing in section 50-a mentions the word disciplinary hearing, let alone requires that such hearings be held in private, and we discern no import from this omission other than the obvious — that the failure of the Legislature to include it within the statute is an indication that its exclusion was intended (see Pajak v Pajak, 56 NY2d 394, 397 [1982]; Matter of Collins v Dukes Plumbing & Sewer Serv., Inc., 75 AD3d 697, 699-700 [2010], lv granted 15 NY3d 713 [2010]; see also McKinney's Cons Laws of NY, Book 1, Statutes § 74 ["[T]he failure of the Legislature to include [a] matter within the scope of an act may be construed as an indication that its exclusion was intended."], § 94 ["The legislative intent is to be ascertained from the words and language used, and the statutory language is generally construed according to its natural and most obvious sense, without resorting to an artificial or forced construction."]; Bright Homes v Wright, 8 NY2d 157, 162 [1960] ["Courts are not supposed to legislate under the guise of interpretation, and in the long run it is better to adhere closely to this principle and leave it to the Legislature to correct evils if any exist."]; People v Olah, 300 NY 96, 102 [1949] ["A statute must be construed and applied as it is written by the Legislature, not as some judges may believe it should have been written." (citation omitted)];Matter of Kittredge v Planning Bd. of Town of Liberty, 57 AD3d 1336, 1339 [2008] ["In construing a statute, a court must attempt to harmonize all its provisions and to give meaning to all its parts, considered as a whole, in accord with legislative intent. Such intent and meaning is best determined from the plain language of the statutory text." (citations omitted)]).

The legislative history of Civil Rights Law § 50-a is similarly unavailing to petitioners' position. The "statute was intended to apply to situations where a party to an underlying criminal or civil action is seeking documents in a police officer's personnel file, and was apparently designed to prevent 'fishing expeditions' to find material to use in cross-examination" (Matter of[*4]Capital Newspapers Div. of Hearst Corp. v Burns, 109 AD2d 92, 95 [1985], affd 67 NY2d 562 [1986] [citation omitted]; see Matter of Daily Gazette Co. v City of Schenectady, 93 NY2d 145, 154 [1999]; Matter of Dunnigan v Waverly Police Dept., 279 AD2d 833, 834 [2001], lv denied 96 NY2d 710 [2001]; Carpenter v City of Plattsburgh, 105 AD2d at 298; Senate and Assembly Introducer Mem in Support, Bill Jacket, L 1976, ch 413; Mem of Div of Criminal Justice Servs, Bill Jacket, L 1976, ch 413). The Court of Appeals has confirmed that "the legislative intent underlying the enactment of Civil Rights Law § 50-a was narrowly specific, to prevent time-consuming and perhaps vexatious investigation into irrelevant collateral matters in the context of a civil or criminal action" (Matter of Capital Newspapers Div. of Hearst Corp. v Burns, 67 NY2d at 569 [internal quotations marks and citation omitted]). Significantly, none of the legislative history mentions the topic of disciplinary hearings.

Mitchell H. Rubinstein

NYPPL Comment: The Commissioner’s Regulations [see 8 NYCRR 82-1.9] provide that unless the employee notifies the Education Law Section 3020-a hearing officer at least twenty-four hours before the first day of the hearing that he or she demands a public hearing, the hearing shall be private. This provision appears to be inconsistent with present case law as well as placing a burden on the employee that does not appear to be mandated by law.

Termination for disability pursuant to §73 of the Civil Service Law.

Termination for disability pursuant to §73 of the Civil Service Law.

Dep’t of Education v. L.C. (in PDF), OATH Index No. 1956/11

The New York City Department of Education sought dismissal of a clerical associate for “willful misconduct” pursuant to §75 of the Civil Service Law based upon her long-term absence without leave.

In the alternative, the Department sought to remove the employee from service pursuant to §73 of the Civil Service Law because she was absent for more than one year due to a non-work related disability.

The record established that the employee had been undergoing treatment for breast cancer.

Under the circumstances, OATH Administrative Law Judge Ingrid M. Addison found that the Department failed to prove that its employee’s absence was willful.

However, Judge Addison found that there was substantial cause to terminate the employee because her illness rendered her unfit to perform her obligations to her employer for more than one year.

N.B. In contrast to termination pursuant to Civil Service Law §75, termination pursuant to Civil Service Law §73 is not a “pejorative dismissal” and the individual may apply for reinstatement to his or her former position within one year of the abatement of his or her disability.

Union's duty of fair representation

Union's duty of fair representation

Matter of Robert Hickey, 34 PERB 4530

Hempstead school teacher Robert Hickey alleged that the Hempstead School Administrators Association violated its duty of fair representation when if failed to press the school district to pay him at the same rate of compensation for extra-curricular activities as the district paid to its other administrators for similar work. Hickey said he was paid about $33 per hour for his work while the others were paid $65 per hour.

According to Hickey, although he was advised that “the District refused to budge during negotiations with respect to his compensation ... he was not sure how serious an attempt was made by the Association to increase his compensation to the level of other administrators.”

PERB's Administrative Law Judge Elena Cacavas said that “absent bad faith, the duty of fair representation does not preclude an employee organization from reaching agreements that are more favorable to some unit employees than to others.”

Finding that Hickey failed to show that the Association “acted irresponsibly, grossly negligently or with improper motive,” Cacavas dismissed his charge in its entirety.

Establishing a right to General Municipal Law Section 207-c benefits

Establishing a right to General Municipal Law Section 207-c benefits

White v County of Cortland, 283 AD2d 826, affirmed, 97 NY2d 336

In the White case the Appellate Division, Third Department, set out a basic principal it follows in determining if an individual is eligible for disability benefits under General Municipal Law Section 207-c as follows: Section 207-c is a remedial statute and thus is to be liberally construed in favor of the claimant.

The facts underlying this disability claim case are relatively straightforward.

Herbert I. White suffered a heart attack prior to his being hired as a full-time correction officer by Cortland County in 1989. He performed his duties without incident until June 18, 1995, when he suffered a work-related heart attack. He was disabled from performing his job duties until October 21, 1995. White returned to work but on June 13, 1996, he experienced chest pains and shortness of breath. His request for medical leave was approved. Unable to work, he has been continued on such leave through the present time.

The Section 207-a Hearing Officer determined that “although [White's] condition is work related, it is not causally related [to his employment] 'to a substantial degree'” Cortland adopted the hearing officer's findings and refused to pay White Section 207-c benefits with respect to his absence after June 13, 1996.

A State Supreme Court determined that Cortland decision was “an error of law” and annulled it insofar as it denied White's application for Section 207-c benefits since June 13, 1996.

The Appellate Division affirmed the lower courts ruling, holding that “Section 207-c is a remedial statute intended to benefit law enforcement personnel disabled by a work-related illness or injury and, as such, should be liberally construed in their favor.”

The court said that “[t]he language of the statute and precedent from this Court require only that the claimant prove disability and a causal relationship between the disability and the claimant's job duties.”

Membership on a negotiating team

Membership on a negotiating team

Town of Wallkill and Wallkill PBA, 34 PERB 4543

One of the elements in the improper practice charge considered by PERB Administrative Law Judge Susan A. Comenzo in the Wallkill case concerned the Wallkill PBA's threat to declare impasse if the Town did not alter the membership of its negotiating team.

PBA specifically objected to the town attorney serving as the Town's “spokesperson for the negotiating team.”

Although the PBA conceded that the Town was entitled to have its attorney present at negotiations, it took the position that the Town should use its attorney as a consultant and “not as a spokesperson.”

ALJ Comenzo held that the PBA violated Section 209-a.2 (b) of the Public Employees' Fair Employment Act by threatening, in a memorandum to the town supervisor, that it would declare impasse “if the Town did not alter the make-up of its negotiating team ... and by by-passing the Town's chief negotiator in delivering the declaration of impasse ... and in listing therein a non-negotiator as the Town representative for the purposes of the impasse.”