Attorney-client privilege may not protect confidential e-mail transmittals between an employee and his or her attorney posted from employer's computer

Attorney-client privilege may not protect confidential e-mail transmittals between an employee and his or her attorney posted from employer's computer

Long v. Marubeni America Corp., No. 05 Civ. 639 (GEL) (KNF), 2006 WL 2998671 (US District Court, Southern District of New York.

An employee used his employer’s computer while at work to send e-mails to his attorney. Such use was in violation of his employer’s policy barring the use of work computers for personal business. In addition, the employee was aware of his employer’s policy statement advising workers that company computers were monitored for Internet activity, including e-mail traffic.

As a result, the e-mails to and from his attorney sent using the employer's computers were held not to be confidential communications protected by the attorney-client privilege.

The court ruled that the employee knew, or should have known, about his employer’s Internet monitoring policy. Accordingly, when he disregarded it, his emails to his attorney lost any protection that the doctrine of attorney-client privilege would have otherwise provided such communications.

Appealing a disciplinary termination

Appealing a disciplinary termination

Stevens v McGraw CSD, App. Div., 261 AD2d 698, leave to appeal denied 93 NY2d 816

McGraw Central School District bus driver Arthur Stevens' failure to comply with Education Law Section 3813 proved fatal to his challenging his dismissal from his position following a disciplinary hearing pursuant to Section 75 of the Civil Service Law.

Section 75 disciplinary charges were filed against Stevens alleging that he permitted unacceptable behavior on his bus, was absent without leave, inaccurately reported his work time, and failed to comply with his supervisor's directives as well as with district rules and procedures.

The hearing officer found Stevens guilty of seven of the charges preferred against him and recommended that he be discharged. The district accepted the hearing officer's findings and recommendation.

When Stevens challenged his termination, the district raised the technical defense that he had failed to comply with notice requirements set out in Section 3813 of the Education Law.[1]

The Appellate Division affirmed a lower court's ruling dismissing Stevens' Article 78 action, holding that "the mere fact that he seeks only reinstatement to his former position, as opposed to reinstatement coupled with back pay and benefits, does not exempt him from the requirements of Education Law Section 3813, as a review of the petition makes clear that [Stevens] nonetheless primarily is seeking to enforce a private right."

Section 76 of the Civil Service Law gives a person found guilty of charges brought pursuant to Section 75 a statutory right to appeal the penalty imposed to the responsible civil service commission or, in the alternative, to the courts pursuant to Section 78 of the CPLR. However, the Appellate Division's ruling in Stevens holds that an employee of a school district or a BOCES, as a condition precedent to his or her filing an Article 78 appeal challenging the disciplinary action, must file a timely notice of claim with the district or BOCES.

In contrast to the court’s ruling that Stevens had to comply with the mandates in Section 3813, in Sephton v Board of Education of the City of New York, 99 AD2d 509, the Appellate Division, Third Department, ruled that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore Section 3813 is not applicable to cases seeking to enforce such rights."

The fact that the Civil Service Law provides an aggrieved employee with a statutory right to appeal an adverse disciplinary action to a civil service commission or to the courts should have the same standing with respect to such an employee's "tenure rights" as does Section 3020-a.5 insofar as the "tenure rights" of educators are concerned.

In any event, although it appears that exceptions to the Section 3813 "notice of claim" requirement exist, it would be prudent for an aggrieved party to file a timely notice of claim with a school district pursuant to Section 3813 rather than try to persuade a court that it was not necessary to do so in a particular situation at some later date.

[1] Section 3813 Presentation of claims against the governing body of any school district or certain state supported schools. 1. No action or special proceeding… shall be prosecuted or maintained against any school district, board of education, board of cooperative educational services, school … or any officer of a school district, board of education, board of cooperative educational services, or school … unless it shall appear… that a written verified claim upon which such action or special proceeding is founded was presented to the governing body of said district or school within three months after the accrual of such claim [emphasis added], and that the officer or body having the power to adjust or pay said claim has neglected or refused to make an adjustment or payment thereof for thirty days after such presentment

Empire State Youth Orchestra invited to perform in China and South Korea

Empire State Youth Orchestra invited to perform in China and South Korea

The 90 musicians comprising the Empire State Orchestra have been invited to perform at the 2012 World Expo and at other locations in China and South Korea. Of particular note will be the orchestra's visit to and performance on Sorok Island where elderly Hansen's disease (leprosy) patients reside.  These people had had no exposure to western music until members of the London Philharmonic performed for them last year in what was called a "transformative experience" for both musicians and residents.

You may view a brief video presentation about ESYO’s participation in the 2012 World Expo and listen to the musicians perform at http://www.youtube.com/watch?v=T8zQrL3M9q8

As a regional organization, ESYO attracts students from over 75 public and private schools throughout eastern New York State and western New England. Returning and potential members must pass a competitive audition for their positions.  ESYO students range in grade level from 4th through 12th.

If you wish to help support ESYO, you may make your tax-deductible gift on line at http://www.esyo.org/support/contributors.htm  or mail your contribution to ESYO, 432 State St, Schenectady, NY 12305 or telephone 518-382-7581 to make a donation.

For additional information about ESYO please go to http://www.esyo.org/esyo/history.htm

Hearing officer’s disciplinary determination vacated on the grounds that he had exceed his authority and failed to make a final award

Hearing officer’s disciplinary determination vacated on the grounds that he had exceed his authority and failed to make a final award

Matter of New York City Dept. of Educ. v Santino, 2011 NY Slip Op 32919(U), Supreme Court, New York County, Docket Number: 11401976/1, Judge Alexander W. Hunter Jr. [Not selected for publication in the Official Reports]

The NYC Department of Education [DOE] filed a CPLR Article 75 motion seeking to vacate the decision of a disciplinary hearing officer who, although finding the accused teacher guilty of incompetence and inefficiency, conduct unbecoming her position, and neglect of duty, directed her being “returned her to the classroom” for additional evaluation. 

DOE contended that the hearing officer had exceeded his jurisdiction and, or, so imperfectly executed it, that a final and definite award was not made. Judge Hunter agreed and granted DOE’s petition.

According to the decision, after finding the teacher guilty of a number of allegations, the hearing officer had directed DOE to return her to the classroom in “a school of its choosing” to undergo a new “evaluation period” of observation for a minimum of three months and he then reserved his decision as to a penalty to be imposed pending completion of the new evaluation.

DOD contended that the award must be vacated because the award was not final and definite; the penalty imposed by the hearing officer was unenforceable and the penalty was not one of the penalty options authorized by Education Law §3020-a.

Judge Hunter ruled that the hearing officer’s award was violative of two relevant provisions set out in the controlling collective bargaining agreement between the United Federation of Teachers and DOE.

In addition, the court found the hearing officer's award was indefinite and not final, and remanded the matter back to the same hearing officer to impose a penalty in accordance with Education Law §3020-a(4)(a). 

In the words of the court, “By forcing [DOE] to violate the UFT/DOE contract and by reserving his decision on a penalty, the matter submitted has not been resolved."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2011/2011_32919.pdf

Proving disciplinary charges

Proving disciplinary charges

Ferguson v Traficanti, 295 A.D.2d 786

Desiree Ferguson was found guilty of some of the thirty specifications of misconduct and incompetence filed against her. The hearing officer found Ferguson guilty of seventeen of these thirty specifications and recommended that she be dismissed from her position of Senior Office Assistant with the Schenectady City Court.

Among the specifications of misconduct and incompetence filed against her: excessive lateness, failure to carry out assigned duties properly, and actions in contradiction of established court procedure. The hearing officer's findings and recommendations were adopted by the appointing authority and Ferguson was dismissed from her position.

In sustaining the determination, the Appellate Division, Third Department noted that:

Findings of a Hearing Examiner will be confirmed if they are supported by substantial evidence in the record even where conflicting evidence may have supported a different determination.

What constitutes "substantial evidence" is the significant issue in such cases. The decision demonstrates some of the factors that courts weigh in determining whether there is substantial evidence to support the finding of the hearing officer.

The hearing officer found Ferguson guilty of seven of the 12 specifications concerning her alleged failure to perform assigned clerical tasks properly. The court said that "only six of the seven specifications should be confirmed based upon the testimony proffered by petitioner's supervisor."

Why? Because, explained the court, testimony that Ferguson had typed the incorrect labels because the witness "recognized the font from [Ferguson's] typewriter was insufficient since testimony also established that there were several typewriters in that office using that particular font."

As the witness could not testify that she witnessed Ferguson preparing these folders and Ferguson denied that the error was hers, the court said it could not conclude that there was sufficient evidence to support this allegation.

The hearing officer also found Ferguson guilty of six of thirteen specifications alleging that she improperly performing her duties by exceeding her authority or violating court policy. In this instance the court held that the record supported the hearing officer's findings, noting that Ferguson was advised of these problems in her performance in various performance evaluation, together with the need for her to improve in these areas.

With respect to disciplinary specifications focusing on Ferguson's use of the workplace to conduct personal business and engage in lengthy personal telephone calls, the Appellate Division ruled that the testimony of her superiors, confirmed by a co-worker, was sufficient to prove the allegations.

The court also said that it did not find any error in the hearing officer finding Ferguson guilty of 36 of the 48 allegations that she had arrived late for work on specified dates. These allegations, said the court were supported either by Ferguson's time sheets or by testimony from her superior or co-workers.

The Appellate Division declined to review the penalty imposed, as the more appropriate course is to remit the matter to the appointing authority for its reconsideration.

The court also said that it noted that Ferguson was given numerous oral admonitions and counseling memoranda warning her of further disciplinary action, such did not constitute "punishment" such that the present disciplinary proceeding could be deemed duplicative.