Employee must answer questions concerning work if granted “use immunity”

Employee must answer questions concerning work if granted “use immunity”

Tanico v. McGuire, 80 AD2d 297

Two police officers refused to answer questions concerning their performance of official duties following their suspension without pay for alleged official misconduct.

They were subsequently served with disciplinary charges alleged misconduct and later again refused to answer “questions specifically directed and narrowly related to official duties.”

Instead the officers filed an Article 78 petition seeking a court order prohibiting such questioning.

The Appellate Division ruled that “a public employee, if granted ‘use immunity’ may be narrowly and specifically questioned about his official duties and dismissed...if he refuses to answer questions properly put to him.”

Although “use immunity” would prevent the answers being used against the individual in a criminal prosecution, the court indicated “since disciplinary proceedings are not criminal actions, the employee’s statements may be used against him in those proceedings (and) an employee who refuses to answer may be discharged on that basis.”

New York City Police Department Rules authorize interrogation of police officers who are either the subject of or witnesses in an official investigation. It appears that an employee can be compelled to testify against himself in a disciplinary proceeding as “use immunity” would be provided under the 5th Amendment in any subsequent criminal prosecution.

Combining demands may be injurious to your bargaining position

Combining demands may be injurious to your bargaining position

Town of Niagara, Case U-5115

When an item subject to mandatory negotiations was combined with a non-mandatory item, PERB held the entire proposal constituted what it described as a “unitary demand” which became a non-mandatory subject of negotiations because one of its parts was non-mandatory.

PERB, however, rejected the Town’s argument that a demand to continue a number of existing contract provisions (consisting of both mandatory and non-mandatory subjects of negotiations) be considered non-mandatory because some parts were non-mandatory. Here PERB ruled that there was no basis to conclude the several provisions constituted a “unitary demand”.

This suggests that had the Union presented certain of the existing provisions as a “package” demand,” the “package” would not be converted into a non-mandatory subject of negotiations despite the fact that the “package” consisted of both mandatory and non-mandatory subjects of collective bargaining and the employer could not refuse to negotiate the proposal.

Presumably the same rule would apply if the employer were to “package” its demands.

Selected Appellate Division rulings

Selected Appellate Division rulings

     * Dismissal because of repeated lateness or being absent from work without an appropriate excuse is not disproportionate to the offense (Smack v. Dutchess County, 80 AD2d 874.

     * The reassignment of the work of the incumbent of an abolished position among five other (retained) employees, none being assigned more than 50% of the duties of the abolished position, is lawful (Currier v. Tompkins-SenecaTioga BOCES, 80 AD2d 979)

     * Shortcomings as an administrator and unsatisfactory performance as a supervisor are not stigmatic so as to require a name clearing hearing for persons not subject to Section 75 of the Civil Service Law. (Carter v. Roswell Park Memorial Institute 80 AD2d 960)

     * Although the appointing authority was obliged to consider the findings of the Hearing Officer in a Section 75 disciplinary action, it was entitled to overrule them in arriving at the ultimate decision. (Wood v. Maine-Endwell CSD, 80 AD2d 970)

Abolishing positions in the public service

Abolishing positions in the public service
Matter of Matter of DiSanza v Town Bd. of Town of Cortlandt, 2011 NY Slip Op 08941, Appellate Division, Second Department

The Town Cortlandt abolished the position of Environmental Analyst, resulting in the layoff of Richard DiSanza. DiSanza sued, seeking a court order directing his reinstatement with back salary.

The Appellate Division affirmed a Supreme Court’s decision denying DiSanza’s petition.

The court explained that a public employer may, in good faith, abolish positions in the civil service for the purpose of economy or efficiency. In the event the decision is challenged, the challenger has the burden of proving that the employer did not act in good faith in abolishing the position.

As to the mechanics involved, the Attorney General has concluded that there must be an actual, official abolishment of a position in order to lawfully remove an employee otherwise entitled to the benefits set out in Sections 80 and 80-a of the Civil Service Law [Layoff], or any similar law, from his or her position (1976 Opinions of the Attorney General 7).

Further, in CSEA and Burnt Hills-Ballston Lake CSD, 25 PERB 3066, PERB, in response to CSEA's allegation that the school district had unilaterally abolished a position in violation of its duty to bargain, ruled that "notwithstanding the obvious impact a position abolition can have, and did have in this case, upon an employee's employment relationship, [it remains] convinced that a position abolition for economic reasons is primarily mission related and, therefore, a nonmandatory subject of negotiations."

The Cortland decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08941.htm

Disciplinary action should proceed regardless of layoff of the accused

Disciplinary action should proceed regardless of layoff of the accused

Rubtchinsky v. Moriah Central School District, 82 A.D.2d 960

A teacher was suspended with pay pending the outcome of a disciplinary hearing on charges of incompetency and misconduct. He was then advised that a position in his department was to be abolished and as he was the teacher with the least seniority, his services would be discontinued.

The Education Law §3020-a disciplinary hearing, however, was never held.

Rubtchinsky sued and Supreme Court held that the teacher had to be given “the economic benefits of his position before (the District) can proceed with a hearing under Section 3020-a.”

The Appellate Division reversed the lower court’s ruling, indicating that Rubtchinsky could get back salary upon reinstatement only if his claim that he was improperly excessed is upheld, and that it knew of no reason to abort the disciplinary hearing.

As Section 2510.3 of the Education Law gives the teacher reinstatement rights for six years, it seems prudent that the discipline action should go forward regardless of the layoff, even if the individual is, in fact, the teacher with the least seniority.