Removal from public office

Removal from public office
Capobianco v Village of Massapequa Park, 278 AD2d 268

Village of Massapequa Park village administrator Meredeth Capobianco sued the Village claiming she had been subjected to a “wrongful discharge” from her position.

As it turned out, what proved critical to her claim was a resolution adopted by the Village providing that the “Village Clerk-Treasurer shall be the Village Administrator and shall serve in such capacity at the pleasure of the Board of Trustees”.

On April 5, 1999, Capobianco was appointed as Village Administrator to serve for a two-year term. The Village terminated her employment effective August 25, 1999.

Capobianco sued, contending that she was “wrongfully removed from office as the Village Administrator, Clerk-Treasurer in violation of Public Officers Law Section 36.

The Village, on the other hand, asked the court to dismiss her petition, arguing that Capobianco was an at-will employee rather than a village officer, and, therefore, Section 36 was not applicable in her situation. A State Supreme Court judge agreed with the Village and dismissed Capobianco's petition.

The Appellate Division agreed with Capobianco, reversing the lower court's decision. It said that the record demonstrated that Capobianco the Village Clerk-Treasurer and thus a Village officer within the meaning of Section 3-301[1] of the Village Law. The court pointed out that “the Village's own resolution provided that the Village Clerk-Treasurer was the Village Administrator.”

Because Capobianco was a village officer, she could only be removed from office in accordance with the procedure set forth in Public Officers Law Section 36, despite the provision in the resolution that she was to serve at the pleasure of the Board of Trustees.

Since Massapequa Park failed to provide Capobianco with the required pre-termination hearing, the court said that she was “entitled to remain in office unless and until removed in accordance with Public Officers Law Section 36,” citing Sullivan v Taylor, 279 NY 364.

As to the relevant statute, the decision indicates that Public Officers Law Section 36 provides, in part, that:

A Village officer “may be removed from office by the Supreme Court for any misconduct ... An application for such removal may be made by any citizen resident of such ... village ... or by the district attorney of the county in which such ... village ... is located, and shall be made to the Appellate Division .... Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice”.

Settlement of disciplinary charges

Settlement of disciplinary charges
Ivory v NYS Dept. of Civil Service, NYS Supreme Court, [Not selected for publication in the Official Reports]

Often the employer and the employee will agree to settle a disciplinary action on mutually acceptable terms rather than proceed with an administrative hearing or submit the matter to arbitration. One of the issues in the Ivory case concerned an administrative “settlement” of a proposed disciplinary action. As the decision notes, courts will not vacate such types of agreements lightly when entered into knowingly and in good faith.

Ivory was employed as a secretary by State University of New York Maritime College for about 10 years. On April 15, 1999, the College Ivory told that she would be charged with misconduct that could lead to her termination. The college had alleged that Ivory's “work performance was poor, that she had unauthorized absences from work, and that she threatened the Personnel Director at the College.”

Ultimately, Ivory and the College agreed to resolve the matter administratively and on June 21, 1999, the parties entered into a “stipulation of settlement.” They mutually agreed that, “in return for the [College's] removal of grievances and a notice of discipline from her official file, [Ivory] would be laid off from her position at the College.”

Ivory later filed a number of race and disability discrimination charges with the Equal Employment Opportunities Commission [EEOC]. EEOC dismissed her charges finding that “it was unable to conclude that the information obtained established violations of any of the relevant statutes.”

Ivory also sued the College and the New York State Civil Service Commission in State court. One of her motions asked the court to void the June 21, 1999 settlement agreement.

The court, declined to do so, stating that the settlement agreement, describing the terms of a settlement between plaintiff and the College, was duly executed by plaintiff, her representative, and her employer's representative. In the words of the court, “[s]tipulations of settlement are favored by the courts and not lightly cast aside,” citing Hallock v State of New York, 64 NY2d 224.

Proving retaliation for engaging in protected union activities

Proving retaliation for engaging in protected union activities
Rockville Centre Teachers Asso. v PERB, 281 AD2d 425

A Public Employment Relations Board [PERB] Administrative Law Judge [ALJ] ruled that the Rockville Centre Union Free School District had dismissed an employee in retaliation for her union activity -- an unfair labor practice under the Taylor Law. PERB reversed its ALJ's determination and the Rockville Teachers Association appealed PERB's decision.

The Appellate Division first noted that the employee involved was serving a probationary period and that a probationary employee could be terminated for any reason as long as the termination was not made in bad faith, constituted a violation of statutory or decisional law, or was for unconstitutional or illegal reasons.

As the Association contended that school district had terminated the employee because of her protected union activity, it had the burden of proving each of the following elements in order to prevail before PERB:

1. That the employee was engaged in protected activity;

2. That such activity was known to the person making the adverse employment decision; and

3. That the action would not have been taken but for the protected activity.

The court said that in order to annul an administrative determination rendered after a hearing, a court must find that the record lacks substantial evidence to support the administrative determination.

The Appellate Division said that there was substantial evidence in this record to support PERB's determination that the Association failed to sustain its burden of proof in meeting the third prong of test -- the so-called “but for” test -- in view of the evidence presented by the district to support its decision to terminate the employee.

What was the district's proof? The court said that the school district introduced evidence that the employee had “failed to follow proper school procedures, failed to follow instructions, and failed to adequately safeguard the safety of a student who subsequently fell down a flight of stairs.”

This, in the view of the court, provided sufficient reasons to justify the district's terminating the individual's probationary employment and thus permitting PERB to conclude that the Association failed to meet the “but for” test.

Significantly, the Appellate Division said that “there is no evidence to establish a nexus between the employee's union activity and the decision to terminate her employment.” In other words, the probationary employee would have been terminated even if she had not engaged in a protected activity.

The Appellate Division also considered the question of the deference due findings by an ALJ by PERB.

The opinion states that although the findings of an ALJ made after a hearing are entitled to deference upon review by an administrative board such as PERB, a board is entitled to make its own findings provided that they are supported by substantial evidence.

In this instance the Appellate Division found that PERB's substituting its own finding for those of its ALJ was supported by substantial evidence in the record.

Responsibility for granting tenure may not be surrendered

Responsibility for granting tenure may not be surrendered
Croman v City University of New York, App. Div., First Dept., 277 AD2d 185

It is well settled that as a matter of public policy an appointing authority such as a board of education may not surrender its ultimate responsibility for making tenure decisions or restrict its exclusive right to terminate a probationary employee's appointment and thus such the denial of tenure is not subject to grievance arbitration.

The Court of Appeals, by way of illustration, observed that “... a board of education may not surrender its ultimate responsibility for making tenure decisions or restricting its exclusive right to terminate probationary teacher appointments” and thus such the denial of tenure is not subject to grievance arbitration.

In contrast, in Cohoes City School District v Cohoes Teachers Association, 40 NY2d 774, the Court of Appeals ruled that contractual provisions between an employee association and an appointing authority may set out procedural safeguards concerning the tenure decision that are subject to grievance arbitration procedures without offending public policy.

In other words, while a board's decision involving the “denial of tenure” is not arbitrable, alleged violations of the procedures to be followed in determining whether to grant or deny tenure are arbitrable.

Does public policy prohibit the arbitration of the disciplinary termination of tenured faculty?

This was the issue raised by Linda H. Young, a tenured faculty member, when she challenged her suspension without pay for six months from her position with the City University of New York by an arbitrator following a disciplinary hearing held in accordance with the provisions of a Taylor Law agreement.

Young's argument As Section 6212(9) of the Education Law “vests the power to remove tenured faculty solely in [University's] Board of Trustees,” public policy is violated by a collective bargaining agreement delegating the authority to discipline to an arbitrator at the employee's option

The Appellate Division, First Department, disagreed. The court said that “[a]bsent clear language in Education Law Section 6212(9) '[i]t is well settled that a contract provision in a collective bargaining agreement may modify, supplement or replace the more traditional forms of protection afforded public employees ...'”, citing Dye v New York City Transit Authority, 88 AD2d 899.

According to the ruling, the collective bargaining agreement allowed Young to either accept the disciplinary penalty recommended by appointing authority's designee or take the matter to arbitration. Young elected arbitration.

The Appellate Division dismissed Young's appeal, commenting that “[p]ublic policy does not nullify the choice she made.”

The leading cases addressing the issue of an individual’s electing a “negotiated disciplinary procedures” rather than an available statutory disciplinary procedure such as that provided by §75 of the Civil Service Law: Antinore v State of New York, 40 NY2d 6 and Abramovich v Board of Education, 46 NY2d 450.

Determining line-of-duty disability

Determining line-of-duty disability
Ertner v Chenango County, 280 AD2d 851

In considering the standard to apply in determining line-of-duty disability for the purpose of demonstrating eligibility for Section 207-c benefits, in the Ertner case, the Appellate Division, Third Department said that:

While it would be virtually impossible to enumerate each and every instance in which an employee would be entitled to General Municipal Law Section 207-c benefits as opposed to workers' compensation benefits (and such determinations must, of necessity, be made on an ad hoc basis), two rather classic examples come to mind: a police officer injured while pursuing a fleeing felon and a correction officer injured while attempting to quell a prison riot.

At the opposite end of that spectrum is a case such as this. It can hardly be said that an injury incurred while a correction officer is going up or down stairs at his or her place of employment is one incurred as the result of a heightened risk peculiar to the performance of the duties of such an officer.

Applying this analysis to the claim for Section 207-c benefits filed by Chenango County correction officer Tammy Ertner, the Appellate Division sustained the County's determination that Ertner was not injured “during the performance [of] a job function peculiar to a correction officer.”

Ertner was disabled as a result of her falling while going downstairs to inspect the first-floor cells of the jail, having just completed such an inspection of the second floor. She applied for and was awarded workers' compensation benefits. Ertner then applied for Section 207-c benefits.

Ertner's application was rejected on the basis that her injury was not “incurred during the performance [of] a job function peculiar to a correction officer” and she appealed the determination.

Noting that in Balcerak v County of Nassau, 94 NY2d 253, the Court of Appeals has ruled that entitlement to benefits under the Workers' Compensation Law and Section 207-c are discrete and entirely independent of one another, the Appellate Division dismissed Ertner's appeal.

The court pointed out that workers' compensation benefits are provided for injuries incurred in the course of ordinary and otherwise unqualified employment duties. In contrast, Section 207-c [and Section 207-a] benefits are provided to “compensate specified municipal employees for injuries incurred in the performance of ... work” peculiar to their specialized employment.

In contrast, in another recent case, Flannelly v NYC Police Pension Fund, decided December 19, 2000, the Appellate Division, First Department, ruled that tripping and falling over a tangle of television and VCR wires in the women's locker room of the police station where she worked, while performing a routine security inspection was, as a matter of law, a service-related accident entitling New York City police officer Diane Flannelly to an accident disability pension.

The court said that the wires were in an unexpected location at the entrance of the locker room, a situation that had been recently created by painters who, unknown to Flannelly or anyone else in the police station, had moved the television and VCR and unplugged their wires.