Responsibility, in contrast to authority, may not be delegated

Responsibility, in contrast to authority, may not be delegated

Dougherty v. Hennessy, 82 A.D.2d

In a number of disciplinary cases involving supervisors, a defense that the work was given to a subordinate who failed to perform the task(s) is often raised by the supervisor.

In Dougherty the Appellate Division gave little weight to this type of defense, noting that Dougherty, a supervisor, “consistently attempted to absolve himself from blame by contending that he had delegated the tasks to his assistant or another ....This delegation, of course, did not relieve him of the obligation or the responsibility to see that the assignment was properly performed”.

The Court then affirmed Dougherty’s dismissal from his position.

When is “final” administrative or quasi-judicial determination “final”

When is “final” administrative or quasi-judicial determination “final”

Seidner v. Town of Colonie, 79 AD2d 751

Administrative and quasi-judicial decisions such as those resulting from disciplinary action, commission decisions and similar proceedings may be reviewed by the courts once the decision is “final”. It is sometimes necessary to determine if the decision is ripe for appeal as well as the timeliness of the appeal.

In Seidner, the Appellate Division indicated that an administrative determination is considered “non-final” where the body or officer making the determination is expressly authorized by statute to rehear the matter upon the petitioner’s application.

Seidner’s appeal was held untimely because it was filed late. 

While the matter could be reconsidered by action of the (Zoning Appeals) Board, “there was not statutory authority for a re-hearing upon the petitioner’s application (See Section 267.6, Town Law).

The discretionary power to rehear or reopen matters that is vested in nearly all administrative agencies, is not sufficient to render an otherwise final order “non-final.”

The Appellate Division then commented that the courts have consistently held that the filing, and subsequent denial, of an application to reconsider an administrative board’s determination does not extend the period of limitations within which to seek (judicial) review of the determination.

Evidence obtained using a global positioning device [GPS] permitted in administrative disciplinary hearing

Evidence obtained using a global positioning device [GPS] permitted in administrative disciplinary hearing

Matter of Matter of Cunningham v New York State Dept. of Labor, 2011 NY Slip Op 08529, Appellate Division, Third Department

Michael A. Cunningham, an employee of the New York State Department of Labor, was served with disciplinary charges alleging that he had reported false information about hours he had worked on many days and that he had submitted false vouchers related to travel with his vehicle. The disciplinary hearing officer found Cunningham guilty of certain charges and recommend that Cunningham be dismissed from his position. The Commissioner of Labor accepted the hearing officer's findings and recommended penalty and terminated Cunningham from service.

In the course of an investigation which resulted in the disciplinary charges being filed against Cunningham, the State’s Office of the Inspector General used a global positioning system (GPS) device placed on Cunningham’s vehicle and the resulting information was used in the course of Cunningham’s disciplinary hearing as evidence to prove charges that he had reported false information and submitted false vouchers related to his travel using his personal vehicle.*

Cunningham, contending that the GPS devices placed on his car without a warrant constituted an illegal search and seizure under the NY Constitution, appealed and argued that all such information should have been excluded from evidence at the administrative hearing.

One of the significant issues before the Appellate Division was Cunningham’s challenging the GPS evidence used in the disciplinary action. Essentially the Appellate Division had to determine if the admission of evidence obtained through the use of the GPS to prove certain of the disciplinary charges was unduly prejudicial to Cunningham.

The Appellate Division noted that in a case decided after OIG had concluded its investigation of Cunningham, a majority in the Court of Appeals held that, within the context of a criminal investigation, "[u]nder our State Constitution, in the absence of exigent circumstances, the installation and use of a GPS device to monitor an individual's whereabouts requires a warrant supported by probable cause" (People v Weaver, 12 NY3d 433 [2009]).

Concluding that although the GPS evidence gathered in the course of the OIG investigation would have likely been excluded from a criminal trial under Weaver, the Appellate Division said that the standard for using or excluding evidence at administrative proceedings is not controlled by criminal law, citing McCormick, Evidence §173 [6th ed] [supp], in which it was observed that “most courts do not apply the exclusionary rule to various administrative proceedings including employee disciplinary matters”.

The court said that the test applied in a search conducted by a public employer investigating work-related misconduct of one of its employees is whether the search was reasonable “under all the circumstances, both as to the inception and scope of the intrusion.”

Similarly, said the court, when the search was “conducted by an entity other than the administrative body” seeking to use the evidence in a disciplinary proceeding, the rule is applied by "balancing the deterrent effect of exclusion against its detrimental impact on the process of determining the truth."

As in this instance the investigation was refer to the OIG. Under such facts, said the court, “the reasonableness test appears applicable.”

The court concluded that in order to establish a pattern of serious misconduct such as repeatedly submitting false time records in contrast to a mere isolated incident, it was necessary to obtain pertinent and credible information over a period of time. Here the Appellate Division ruled that “obtaining such information for one month using a GPS device was not unreasonable in the context of a noncriminal proceeding involving a high-level state employee with a history of discipline problems who had recently thwarted efforts to follow him in his nonworking-related ventures during work hours.”

Under the circumstances the Appellate Division said that neither OIG nor Department of Labor had acted unreasonably.

* See, also, Matter of Halpin v Klein, 62 AD3d 403. In Halpin the employee was found guilty of disciplinary charges involving absence from work based on records generated by global positioning equipment. Halpin's guilt was established using data from the global positioning system (GPS) installed in his Department-issued cell phone. The Halpin decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2009/2009_03593.htm


Another decision that addresses this issue is United States v Skinner, [USCA, 6th Circuit] posted on the Internet at::
http://www.ca6.uscourts.gov/opinions.pdf/12a0262p-06.pdf

The Cunningham decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08529.htm

Civil service department determines testing format

Civil service department determines testing format

Esposito v. Civil Service Department, 55 N.Y.2d 835

When provisional employees were unable to persuade the Department of Civil Service to use an “unassembled examination” which is based on the candidates training and experience instead of the written multiple-choice type to test eventually held, the employees sued.

The provisional employees contended that “the only appropriate and effective method of evaluating merit and fitness for their position (Rehabilitation Counselor and Trainees) was the unassembled test.

The court stated that it is not whether the employee’s method of testing is preferable but whether the Civil Service Department’s method is irrational and dismissed their petition.

Decisions issued by PERB

Decisions issued by PERB

Reduction of services

A public employer that reduces services has the burden of showing that such reduction was made in good faith for a proper purpose. Such a showing will support workload and salary reductions proportionate to the reduction in service. Reductions in workload and salary without proportionate reductions in services are subject to negotiations under the Taylor Law (Schulerville Central School District, Case U-4212).

Protected rights

Permanently changing the work hours of employee who was union president and limiting his “leave for union business” to four hours during each tour held violation of employee’s protected rights; contract authorized up to 16 hours of such leave per week, subject to employer approval. Matter of City of Mount Vernon, Case U-4688.

Subcontracting unit work

Unilaterally subcontracting for school lunch program that resulted in termination of food service employees was in violation of the School District’s duty to bargain the impact of such a decision. Although the employer was ordered to offer employees reinstatement, back salary was denied because the district had made a good faith offer of alternative employment without loss of salary or benefits at the time of the subcontracting. (Matter of Hilton Central School District, Case U-4887)

Negotiate in good faith

Union violated its duty to negotiate in good faith when it refused to sign the contract reflecting all the agreements reached and ratified by the members of the Union with the County following conclusion of negotiations and was directed to execute the Agreement (Matter of Onondaga County, Case U-4807).