Dismissal of an employee for “disloyalty” upheld

Dismissal of an employee for “disloyalty” upheld

Thomas v. New York Temporary State Commission on Regulation of Lobbying, 83 A.D.2d 723

An employer is sometimes confronted with a situation in which an employee’s duty of loyalty to the employer is called into question or there appears to be a conflict of interest with respect to the employee’s performance.

In Thomas the employee sued when the Commission discharged him for disloyalty and conflict of interest.

At the time of his discharge, Thomas was an associate counsel to the Commission. The Commission claimed that while an employee, Thomas was also actively assisting one of the lobbying organizations that the Commission was established to regulate.

Noting that the employee was not covered by Civil Service Law Section 75, The Appellate Division rejected Thomas’ argument that his termination reflected adversely on his reputation and position as an attorney as well as his claim that his dismissal had violated his First Amendment rights.

Administrative hearings must be fundamentally fair

Administrative hearings must be fundamentally fair

Higgins v. Solomon, 82 A.D.2d 998

Although the employer said that she was unable to attend a hearing concerning her claim for unemployment insurance benefits because of her physical condition and presented a physician’s statement to that effect, the hearing officer refused to accept her affidavit as “primary evidence.”

When asked for advice by her attorney, the hearing officer replied “I can’t help you, I don’t make house calls.”

In this instance the Appellate Division ruled that the hearing officer’s action was a denial of fundamental fairness and reversed the decision, indicating that alternative means of securing admissible evidence must be investigated.

Agency heads are sometimes faced with a similar situation when an employee fails or refuses to attend a disciplinary action.

Courts have held that the employer may proceed with the disciplinary action even though the employee is not present. The hearing may proceed and the employee tried in absentia provided the appointing authority made a diligent effort to contact the employee to inform him or her that the disciplinary hearing had been scheduled and would take place even if he or she did not participate.

Indeed, there is even case law stating that an arbitrator may proceed with a disciplinary arbitration hearing in the absence of the appointing authority and make a final, binding determination. In Hall v Environmental Conservation, 235 A.D.2d 757, the employer boycotted the arbitration because it believed that Hall was not entitled to the arbitration. The court upheld the arbitrator’s award in favor of the employee.

Legislation pending before the Senate and the Assembly

Legislation pending before the Senate and the Assembly

Interested in reading the text of the budget bill submitted by the Governor for consideration by the Assembly and the Senate in their respective extraordinary sessions [Assembly 2 and Senate 2]?

The bill, among other things, amends the New York State Tax Law in relation to personal income tax rates, is posted on the Internet at:

http://assembly.state.ny.us/leg/?default_fld=&bn=A40002&term=&Summary=Y&Text=Y

Retired Public Employees Association sues State for unilaterally increasing the percentage of health insurance premiums to be paid by retirees of the State

Retired Public Employees Association sues State for unilaterally increasing the percentage of health insurance premiums to be paid by retirees of the State
Source: Retired Public Employees Association press release

On December 7, 2011, the Retired Public Employees Association [RPEA] announced that it is commencing legal action against Governor Andrew M. Cuomo and the State of New York challenging the State’s attempt to make its retirees pay a larger portion of their health insurance premiums. According to RPEA, State officials are “administratively extending” the provisions of certain collective bargaining agreements between employee organizations representing employees of the State as the employer to retired employees of the State.*

RPEA Executive Director Alan Dorn said that the State is trying to balance its budget on the backs of its retirees who, unlike active employees of the State in a collective bargaining unit, have no ability to negotiate for “give backs or other benefits.” Dorn observed that the State has increased the retiree’s cost of such coverage by two percent and that “a 2% contribution for individual coverage is really a 20% increase.” 


Mr. Dorn's letter to Civil Service Commission President Patricia Hite concerning the increase of the retiree's contribution for his or her health insurance  is posted on the Internet at:

http://rpea.org/documents/commentsobjectEmergRule-10-20-11-2.pdf

The text of RPEA's complaint is posted on the Internet at:

http://www.scribd.com/doc/75054148/Retirees
 

* Civil Service Law §167.1(a) currently sets the percentage of contributions for State retirees who retired on or after January 1, 1983 and provides that such retirees are to pay: 10% of the premium for individual coverage and, where so enrolled, 25% of the premium for dependent coverage.

Four months to appeal an adverse disciplinary determination is the limit

Four months to appeal an adverse disciplinary determination is the limit

Bevins v. Brugher, 83 A.D.2d 66

When the employees were found guilty of misconduct, the penalty of dismissal “effective immediately” was imposed.

The employees were notified by letter dated December 31. On May 2 of the following year the employees sought to overturn their terminations. The Court dismissed their petitions as untimely, as it was brought more than four months after the effective date of the dismissal.

The Appellate Division rejected the argument that an appointing authority could “purposefully withhold notification of the determination, allowing the limitation to run” as ignoring reality in cases of dismissal.