Administrative Law Judge recommended dismissal of employee testing positive for marijuana

Administrative Law Judge recommended dismissal of employee testing positive for marijuana

NYC Fire Department v Rolling, OATH Index #1645/11

OATH Administrative Law Judge Alessandra F. Zorgniotti recommended termination of employment for an Emergency Medical Technician [EMT] who tested positive for marijuana in a random workplace drug test.

Although the EMT claimed that the positive test resulted from his consumption of vitamins that contain hemp-seed oil, there was no proof that he had consumed any substance that could trigger a false positive result.

Noting that “[i]nnocent ingestion is an affirmative defense that [the accused] must prove by preponderance of the evidence,” Judge Zorgniotti said that the EMT “could not identify anything he consumed that contained hemp-seed oil” at any time during the 24-hour period proceeding his being tested.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-1615.pdf

Counseling memorandum and disciplinary action

Counseling memorandum and disciplinary action

Hoffman v Village of Sidney, 652 NYS2d 346 

In a number of instances, counseling memoranda have been challenged on the theory that the employer's issuing a counseling memorandum, in and of itself, constitutes disciplinary action. The courts have rejected the notion that such an effort on the part of the employer to correct employee behavior constitutes discipline. In Hoffman, the Appellate Division ruled that an employee is not entitled to a hearing before a letter critical of his or her performance is placed in his or her personnel file, where no punishment is involved.

As to Taylor Law considerations, PERB has recognized the difference between criticism of employee performance and disciplinary action. In Port Jefferson Union Free School District v United Aides and Assistants,U-5713, PERB rejected a union's claim that every written criticism of an employee was a "reprimand."

The absence of the imposition of any punishment on the employee appears to be the key in determining if a counseling memorandum is, in fact, a subterfuge for disciplinary action. Further, courts typically view term "penalty" to mean one of the statutory penalties authorized by §75 of the Civil Service Law or a similar statute.

The issue of whether the employer’s action constituted constructive criticism or discipline was considered by the Commissioner of Education. in Matter of Fusco, Comm. of Ed. Decision 14,396 and in Matter of Irving, Comm. of Ed. Decision 14,373. In the opinion of the Commissioner of Education, the employers "crossed the line" in both the Fusco and Irving cases.

The Fusco Case:

The Commissioner said that while the general rule is that personnel given critical administrative evaluations by a supervisor are not entitled to Section 3020-a protections, a disciplinary reprimand may not be issued without a finding of misconduct pursuant to Section 3020-a.

In Fusco’s case the Commissioner found that despite the board's representation that the challenged evaluation was "intended to encourage positive change" in Fusco's performance, it "contains no constructive criticism or a single suggestion for improvement." Rather, said the Commissioner, the memorandum focused on "castigating [Fusco] for prior alleged misconduct."

Instead of "constructive criticism," the Commissioner concluded that the evaluation "chastised [Fusco] for serious misconduct," including "improper release of confidential information, harassment of staff members, damaging district/union relationships...and poor leadership."

The Irving Case

In deciding Irving’s appeal, the Commissioner said that “The record convinces me that disciplinary action was taken and that Irving, a school principal, was deprived of her rights under Education Law Section 3020-a.

Conceding that Sections 1711 and 2508 of the Education Law authorize a superintendent to transfer personnel, the problem here, said the Commissioner, was that Irving's alleged misconduct. i.e., "staff mistreatment" and "parental mistreatment," were the only reasons for reassigning and demoting Irving set out in the record. The Commissioner pointed out that the several meetings between the Superintendent and Irving, and the Superintendent and the board, and the two letters given to Irving by the Superintendent, "are all part of a single process, and it is inescapable that the sole reason for [Irving's] transfer was her alleged misconduct as a principal."

Considering all of these circumstances as a whole, the Commissioner concluded that Irving was entitled to the protections of Section 3020-a, including the right to contest formal charges, "and those rights have been violated here."

Rejecting the district's argument that Irving's "transfer was for the good of the district" and thus not disciplinary in nature, the Commissioner said this theory "misses the mark." He observed, "one would hope that every school district disciplinary action or proceeding, taken in good faith, is for the good of the district."

Another concern: A "counseling memorandum" is placed in an individual's personnel file and later disciplinary charges involving the same event(s) are served upon the individual. Does including the events set out in the counseling memorandum in the charges constitute "double jeopardy?" No, according to the Court of Appeal's rulings in Holt v Board of Education, 52 NY2d 625 and in Patterson v Smith, 53 NY2d 98.

In these cases the court indicated that in the event an employer includes allegations based on the employee's conduct that earlier resulted in the issuing of a counseling memorandum in the charges or specifications filed against the individual in a statutory or contractual disciplinary proceeding, the inclusion of allegations in the charges and specifications involving such prior conduct does not constitute "double jeopardy."

Filing a FOIL request for personnel records

Filing a FOIL request for personnel records

Feerick v Safir, App. Div., 297 AD2d 212 

The basic rule when considering a Freedom of Information Law [FOIL] request is that FOIL provides that all public documents are subject to disclosure. However, the custodian of the records may elect to deny access to documents otherwise subject FOIL if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in the law.

When it comes to FOIL requests concerning personnel records, typically the individual objects to their release. The Feerick case involved a variation concerning FOIL requests for personnel records -- Patricia Feerick submitted a FOIL request to her employer, the New York City Police Department, seeking material contained in her own personnel records. The Department rejected her FOIL request.

Feerick was one of four New York City police officers seeking information concerning an internal police investigation directly related to their involvement in efforts to recover stolen property from suspected drug dealers. The Department's reason for refusing her FOIL request: the information she sought constituted confidential police records and thus fell under one of the exclusion provisions set out in law.

Feerick filed an Article 78 petition seeking disclosure of her personnel records related to the matter. Supreme Court, agreeing with the Department, dismissed her petition. The Appellate Division, however, reversed and ordered the Department to give Feerick the records she had requested under FOIL.

The Appellate Division noted that Public Officers Law §87(2) allows the denial of a FOIL request if the information sought (1) is specifically exempted from disclosure by statute; (2) amounts to an unwarranted invasion of privacy; or (3) interferes with an ongoing law enforcement investigation or judicial proceeding.

At the time that Feerick submitted her FOIL request, said the court, the only tenable basis for the Department to exercise its discretion and not release her personnel records to her was that the information sought amounted to an "unwarranted invasion of privacy." It was conceded that the information demanded constituted confidential personnel records and thus fell under one of the available exclusions to FOIL. However, said the court, the records demanded by Feerick are her own records in contrast to such records being demanded by a third party.

Noting that the privacy exception is for the protection of individuals named in the documents rather that the public entity holding or creating the records, the court decided that any privacy issues raised by the Department were irrelevant as the information demanded directly concerned the individual submitting the FOIL request.

A public entity must be reasonable when deciding whether or not to release information that falls under one of the limited exclusions available to it when denying a FOIL request. In exercising its discretion as to whether to release documents, the custodian must be guided by the public policy underlying FOIL: all governmental records are available to the public and the denial of a FOIL request is the exception to this general rule.

Filing a FOIL request for personnel records

Filing a FOIL request for personnel records

Feerick v Safir, App. Div., 297 AD2d 212 

The basic rule when considering a Freedom of Information Law [FOIL] request is that FOIL provides that all public documents are subject to disclosure. However, the custodian of the records may elect to deny access to documents otherwise subject FOIL if it decides that the document requested may be withheld because it meets one or more of the exceptions set out in the law.

When it comes to FOIL requests concerning personnel records, typically the individual objects to their release. The Feerick case involved a variation concerning FOIL requests for personnel records -- Patricia Feerick submitted a FOIL request to her employer, the New York City Police Department, seeking material contained in her own personnel records. The Department rejected her FOIL request.

Feerick was one of four New York City police officers seeking information concerning an internal police investigation directly related to their involvement in efforts to recover stolen property from suspected drug dealers. The Department's reason for refusing her FOIL request: the information she sought constituted confidential police records and thus fell under one of the exclusion provisions set out in law.

Feerick filed an Article 78 petition seeking disclosure of her personnel records related to the matter. Supreme Court, agreeing with the Department, dismissed her petition. The Appellate Division, however, reversed and ordered the Department to give Feerick the records she had requested under FOIL.

The Appellate Division noted that Public Officers Law §87(2) allows the denial of a FOIL request if the information sought (1) is specifically exempted from disclosure by statute; (2) amounts to an unwarranted invasion of privacy; or (3) interferes with an ongoing law enforcement investigation or judicial proceeding.

At the time that Feerick submitted her FOIL request, said the court, the only tenable basis for the Department to exercise its discretion and not release her personnel records to her was that the information sought amounted to an "unwarranted invasion of privacy." It was conceded that the information demanded constituted confidential personnel records and thus fell under one of the available exclusions to FOIL. However, said the court, the records demanded by Feerick are her own records in contrast to such records being demanded by a third party.

Noting that the privacy exception is for the protection of individuals named in the documents rather that the public entity holding or creating the records, the court decided that any privacy issues raised by the Department were irrelevant as the information demanded directly concerned the individual submitting the FOIL request.

A public entity must be reasonable when deciding whether or not to release information that falls under one of the limited exclusions available to it when denying a FOIL request. In exercising its discretion as to whether to release documents, the custodian must be guided by the public policy underlying FOIL: all governmental records are available to the public and the denial of a FOIL request is the exception to this general rule.

N.B. The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality]. Otherwise, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

Union is bound by chief negotiator's representation

Union is bound by chief negotiator's representation

Erie County Water Authority and Local 930, 35 PERB 4560 

If the employer relied on the union's chief negotiator's representation that he was authorized to enter into the collective bargaining agreement, the agreement may not later be repudiated by the chief negotiator on the claim that the agreement was contingent on the approval of the union's full bargaining team and the chief negotiator had a duty to advise the employer if he did not have the authority to reach a final agreement or that a final agreement was contingent on the approval of the union's full negotiating committee.