Finding of guilt based on allegations not included in the disciplinary charges vacated

Finding of guilt based on allegations not included in the disciplinary charges vacated
Eckstrom v City of Ithaca, NYS Supreme Ct., [Not selected for publication in the Official Reports]

In 1997, the City of Binghamton amended the City Code to require “notice and hearing” and proof of incompetence or misconduct before a city official appointed by the Mayor could be removed from his or her office. Prior to the amendment, such officials were “employees-at-will” and not entitled to any form of a pretermination hearing.

In the Eckstrom case, State Supreme Court Judge Walter J. Relihan, Jr. concluded that having enacted such a provision, the City was required to substantially comply with the principles followed in prosecuting disciplinary charges filed pursuant to Section 75 of the Civil Service Law.

Six disciplinary charges were filed against Richard L. Eckstrom, the city's Building Commissioner, by the Mayor. One was withdrawn by the Mayor prior to the hearing and three were dismissed by the hearing officer. Eckstrom, however, was found guilty of the two remaining charges based on building code decisions he had made. Accepting the findings and recommendations of the hearing officer, the Mayor dismissed Eckstrom. Eckstrom appealed.

In reviewing the record, Judge Relihan noted that the hearing officer had concluded that as to the first charge Eckstrom's actions were “arguably correct” and that his conduct with respect to the second charge “was neither incorrect nor unreasonable.”

How then could the hearing officer have found Eckstrom guilty? In both instances, said Judge Relihan, the hearing officer relied on “an uncharged offense in support of a finding of guilt regarding an offense which does appear in the charges.”

In the words of the court:

Obtuse to his own prior findings, the hearing officer concluded that Eckstrom should be fired for incompetence and misconduct ... These jarring inconsistencies and departures from well-settled principles compel the conclusion that the “Final Determination” is arbitrary, capricious, affected by an error of law and constitutes an abuse of discretion.

As the Court of Appeals held in Murray v Murphy, 24 NY2d 150, in order to satisfy due process, a notice of the charges must be given to the employee so that he or she may mount an adequate defense, if one is available.

Further, the disciplinary determination must be based on the charges filed against the employee and “no person may lose substantial rights because of wrongdoing shown by the evidence but not charged.”

Observing that the city “disabled” itself from dismissing its high-ranking officials on policy grounds “unless, in addition, misconduct or incompetence could be proven at a hearing,” Judge Relihan ruled that Eckstrom was to be reinstated to his former position.

Judge Relihan said that this may “complicate the business of the Building Department and cause discomfort elsewhere in City Hall” but “[p]erhaps, with good will, a rational and practical denouement can...be achieved...[which] of course, rests entirely in the hands of the parties.”

Among the lessons of the Eckstrom case: In the event a public employer unilaterally decides to provide a pretermination disciplinary hearing to individuals not otherwise entitled such administrative due process by law or contract, the procedures normally appropriate to conducting such a disciplinary hearing must be followed.

Whistle blowing – complaint of retaliation

Whistle blowing – complaint of retaliation
Dobson v Loos, 277 A.D.2d 1013

In Dobson the significant issue before the Appellate Division, Fourth Department, concerned whether or not certain personnel actions alleged taken against an employee could constitute retaliation for whistle blowing in violation of Civil Service Law Section 75-b and Labor Law Section 740.

Richard Dobson, an Erie County Sheriff's Department Sergeant, complained that the Department had retaliated against him because of his “whistle blowing activities” by taking “active and extraordinary measures to preclude his appointment as Lieutenant during the life of the preferred eligibility list until its expiration by operation of law.”

The Appellate Division ruled that such alleged conduct falls within the definition of a “retaliatory personnel action”.

The court noted that retaliatory personnel action is defined in the statutes as the “discharge, suspension or demotion of an employee, or other adverse employment action taken against an employee in the terms and conditions of employment.”

In addition, the court found that the following departmental actions Dobson alleged were taken against him could constitute unlawful retaliation as well:

1. Creating and filling new positions of senior and supervisory detectives, quasi-lieutenant positions “that rightfully should have been offered to [Dobson] but were not.”

2. Assigning Dobson to “virtually nonexistent duties.”

Challenging arbitration awards

Challenging arbitration awards
Coppa v State of New York, NYS Supreme Court, Justice A. Lebowitz, [Not selected for publication in the Official Reports]

Clearly, Article 75 of the Civil Practice Law and Rules imposes significant limitations on challenging an arbitration award. Two such limitations are:

1. The arbitrator exceed his or her authority in rendering a decision and

2. Alleged bias on the part of the arbitrator. These were among the issues considered in the Coppa case.

Coppa, a Psychiatrist II employed by the Brooklyn Development Center of the Office of Mental Retardation and Developmental Disabilities [OMRDD], was suspended without pay. He was served with a Notice of Discipline, dated March 2, 1999, charging him with “endangering the welfare of a consumer, verbally abusing a consumer and verbally abusing and threatening subordinate staff members.” OMRDD's proposed penalty: termination.

Coppa filed a disciplinary grievance challenging the charges filed against him in accordance with the disciplinary procedure set out in the Taylor Law agreement between the State and his employee organization. The grievance was ultimately submitted to arbitration. The arbitrator conducted a disciplinary hearing, sustained two of the three charges, which had been preferred against Coppa by OMRDD and imposed the penalty of dismissal.

Coppa filed a petition pursuant to Article 75 petition seeking to vacate the arbitration award.

Key to resolving Coppa's appeal, said the court, were the terms of the disciplinary arbitration procedure set out in the collective bargaining agreement.

In the words of the court, the contract expressly authorizes the disciplinary arbitrator to “render determinations of guilt or innocence and the appropriateness of proposed penalties” and provides that the “arbitrator's decision with respect to guilt or innocence, penalty, probable cause for suspension, or temporary reassignment, if any ... shall be final and binding [up]on the parties.”

These explicit provisions supported OMRDD's position that the arbitrator did not exceed his jurisdiction in ruling upon the preferred charges of misconduct and imposing the penalty of dismissal.

Judge Lebowitz pointed out that:

Where a dispute has been arbitrated pursuant to a broad arbitration agreement between the parties, the resulting award may not be vacated “unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power,” citing the Court of Appeals' ruling in Town of Callicoon v CSEA, 70 NY2d 907.

Another issue raised by Coppa: the possibility of bias on the part of the disciplinary arbitrator in view of his “prior employment by the State of New York.”

However, said the court, the arbitrator's previous employment by the State was disclosed to Coppa in the arbitrator's resume sent to the parties in advance of his selection to serve as the hearing officer. Coppa proceeded to arbitration without objecting or inquiring further into the arbitrator's possible bias.

This omission, said Judge Lebowitz, meant that Coppa waived any possible objection to the arbitrator's award based on a theory of bias resulting from the arbitrator's prior relationship with the State of New York.

Judge Lebowitz confirmed the arbitration award finding Coppa guilty of two of the charges and the penalty imposed: dismissal from his position.

Oath of office upon the appointment of a public officer or a public employee

Oath of office upon the appointment of a public officer or a public employee
A NYPPL review

When Lance Eggleston was appointed to the Village of Hamburg's Environmental Commission, he said that he wanted to postpone his filing his oath to support the Federal and State Constitutions until he had a chance to read the New York State Constitution. What, if any, impact could a delay in his filing his oath of office have on Eggleston's status on the commission?

First, some background concerning the filing of an oath of office by a public officer or a public employee.*

Individuals are typically required to execute an “oath of office” upon their initial appointment to a position in the public service. Section 62 of the Civil Service Law, for example, requires “every person employed by the state or any of its civil divisions” to execute a “Constitutional Oath of Office.”

If the individual refuses or willfully fails to file the “Section 62 oath”, his or her employment is to be terminated until the oath is taken and filed with the appropriate body.**

Similarly, Section 10 of the Public Officers Law mandates that “every officer” take and file “the oath of office required by law” before he or she may “enter upon the discharge” of any official duties.

What is the penalty if a public officer does not file a timely oath? Section 30.1 of the Public Officers Law provides that if an individual refuses or neglects to file his or her official oath within thirty days of the beginning of his or her term of office, the office becomes “vacant.”

In contrast to Civil Service Law Section 62's provision for the “reinstatement” of the terminated individual to employment once his or her oath is filed, nothing in Section 30.1 of the Public Officers Law provides for “automatic reinstatement” of the individual upon his or her filing of the required oath once the position becomes vacant “by operation of law.”

Presumably the individual must be reappointed to the position if he or she is to hold the office, at which time he or she would be required to file a new and timely Constitutional Oath of Office.

As to Eggleston's situation, it appears that Eggleston wanted delay his filing because he wanted to know what he would be swearing to uphold before he actually swore to support the State Constitution. In explaining his action, Eggleston said “[i]t's like signing a blank check.” In any event, Eggleston, as a public officer, will have thirty days to file his oath or the office to which he had been appointed will become vacant as mandated by Section 30.1.

It is noteworthy that Eggleston had recently retired from his position as a technology coordinator at the Hamburg Central Schools. Presumably he had executed the oath to support the Federal and State constitutions mandated of “any citizen of the United States [employed] to serve as teacher, instructor or professor in any school or institution in the public school system of the state ...” as required by Section 3002 of the Education Law upon his initial appointment by the school district.

The Constitutional oath of office required by the Civil Service Law, the Education Law, the Public Officers Law and similar provisions must be distinguished from so-called “loyalty oath” established pursuant to “anti-subversive activities” laws that were set out in former Section 105 of the Civil Service Law.

Section 105 [originally enacted as Section 12-a of the Civil Service Law of 1909] made individuals advocating the overthrow of government by force or unlawful means ineligible for employment in the public service of the State or any of its political subdivisions.

Section 105 was repealed following the U.S. Supreme Court's decision in the Keyishian case. In Keyishian, the high court held that State laws similar to Section 105, Sections 3021 and 3022 of the Education Law, were unconstitutional [Keyishian v Board of Regents, 87 SCt 675]. Sections 3021 and 3022 were enacted to provide for the “elimination of subversive persons from the public school system.”

* While not all public employees are public officers, all public officers are public employees.

** An individual affiliated with, or a member of, an Indian nation is permitted to file an alternate to the oath set out in Section 62.

Determining if the grievance is arbitrable

Determining if the grievance is arbitrable
Owen D. Young CSD v Morris, 278 AD2d 940

The significant issue in the Young Central School District case concerned determining if a grievance filed by an employee organization could be submitted to arbitration.

Susan Morris, President of the Van Hornesville Teachers Association, appealed a State Supreme Court's granting of the District's petition to stay submitting a grievance concerning prescription health insurance benefits to arbitration.

The Appellate Division, Fourth Department vacated the stay of arbitration issued by a State Supreme Court Judge. The court commented that “[t]here is a reasonable relationship between the matter in dispute, i.e., prescription health benefits, and the broad arbitration clause [in the collective bargaining agreement] that covers all grieved matters.”

In such cases, said the Appellate Division, arbitrators, rather than the courts, are to determine whether a particular grievance falls within the scope of the substantive provisions of the collective bargaining agreement, citing Board of Education v Watertown Education Association, 93 NY2d 132.

The Appellate Division ruled that the lower court “erred in determining as a matter of law that the matter is not arbitrable.”

Determining probation status when employee's service is interrupted by an absence
Johnston v Triborough Bridge and Tunnel Authority, App. Div., First Dept., 278 A.D.2d 34

Typically, an individual serving a “disciplinary probation” may be terminated from his or her position in accordance with the terms of his or her probationary status.

The lesson of the Johnston case: it is essential to determine if the individual is actually serving as a probationer at the time he or she is dismissed for unsatisfactory service as a probationer; probationary status may not be assumed.

In 1989, Triborough Bridge and Tunnel Authority [TBTA] police officer Edward P. Johnston settled disciplinary charges filed against him by agreeing to be placed “on probation for a period of one year.” A few months later Johnston was injured while on duty and did not return to work until October 1996.

In June 1997, following new allegations of misconduct, TBTA dismissed Johnston from his position without a pre-termination hearing. TBTA's justification for its action:

Johnston is not entitled to a pretermination hearing since the one-year probationary period agreed to in 1989 had not yet expired.

According to TBTA, Johnston's period of probation was tolled during his Johnston's extended absence from work. Essentially TBTA argued that as it had not “waived” any portion of Johnston's disciplinary probation, he was required to actually complete one year of such service.

This view is consistent with the Rules of the New York State Civil Service Commission, which applies 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, with respect to absences during a probationary period [4 NYCRR 4.5(g)].

The rules provide that an appointing authority may, in its discretion, consider certain absences “as time served in the probationary term.”

The rule further provides that “[a]ny such periods of absence not so considered by the appointing authority as time served in the probationary term, and any periods of absence in excess of periods considered by the appointing authority as time served in the probationary term pursuant to this subdivision, shall not be counted as time served in the probationary term.” A number of local civil service commissions have adopted a similar rule.

Johnston protested his termination without notice and hearing but the New York City Civil Service Commission dismissed his appeal. The Commission said that it does not have “subject matter jurisdiction to consider the appeal” since Johnston's termination had been pursuant to the 1989 settlement agreement in which he waived the protections of Civil Service Law Section 75 mandating pretermination hearings for tenured employees.

The Appellate Division, First Department, disagreed with the Commission's analysis. It said the Commission apparently “assumed that the waiver contained in the 1989 agreement was still operative” -- it never actually made a finding to that Johnston was still a probationary employee.”

If, on the other hand, said the court, the probationary period had expired, the provisions of Section 75 of the Civil Service Law would control Johnston's dismissal.

Should this be the case, the lawfulness of Johnston's termination without notice and hearing would clearly be within the Commission's jurisdiction.

The Appellate Division remanded the case to the Commission to determine Johnston's probationary status and whether or not the “1989 waiver” remained effective at the time of Johnston's termination.