An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record

An appointing authority’s rejection of the disciplinary hearing officer’s recommendation must be supported by substantial evidence in the record 

Rauschmeier v Village of Johnson City, 2012 NY Slip Op 00158, Appellate Division, Third Department

The Village of Johnson City filed disciplinary charges against an employee pursuant to Civil Service Law §75. Following a disciplinary hearing, the Hearing Officer recommended that employee be found not guilty of the charges filed against him and that he be reinstated to his position with full back pay, benefits and seniority.

The Mayor of the Village, with support of the Village Board of Trustees, rejected the Hearing Officer's recommendation, found the employee guilty of misconduct and dismissed the employee from service.

Contending that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, the employee sued, seeking, among other things, an annulment of the penalty imposed by the Mayor. 

Although Supreme Court rejected the employee’s claim that the Mayor lacked the legal authority to review and reject the Hearing Officer's recommendation, a determination sustained by the Appellate Division,* another issue, whether the Mayor’s decision to reject the Hearing Officer's recommendation was supported by substantial evidence, was referred to, and considered by, the Appellate Division.

Addressing the Mayor’s decision to reject the Hearing Officer's recommendation, the Appellate Division said that its review of such a determination was limited to whether it is supported by substantial evidence.

When, however, the appointing authority, rejects a disciplinary recommendation made by a hearing officer after a hearing, the appointing authority must set forth in its decision "findings of fact based on competent proof contained in the record and then employ those findings to arrive at conclusions that are supported by substantial evidence."

The Appellate Division said that the Mayor, in rejecting the Hearing Officer's recommendation, referred to testimony of certain witnesses given at the hearing, but did not specify what in their testimony supported his conclusion.

More is required said the court, “especially since the other evidence introduced at the hearing – all of which is uncontradicted and not in dispute — supports the Hearing Officer's determination.”

Accordingly, the Appellate Division ruled that the Mayor’s “conclusion to the contrary was not supported by substantial evidence,” and thus his determination must be annulled and the employee reinstated to his position with full back pay and benefits.

* The Appellate Division also rejected the employee’s contention that the Mayor acted beyond his legal authority, pointing out that Civil Service Law §75(2) provides that an employee disciplinary proceeding shall be conducted "by the officer or body having the power to remove the person against whom such charges are preferred, or by a deputy or other person designated by such officer or body in writing for that purpose" and where such a designation is made, the person so designated is to make a record of the hearing  and a recommendation as to the penalty to be imposed in the event the individual is found guilty of one or more charges. The record of the hearing and the recommendation is then to "be referred to [the appointing authority] for review and decision."

The “dual employers” of a volunteer firefighter injured when fighting a fire are both liable for the payment of workers’ compensation benefits

The “dual employers” of a volunteer firefighter injured when fighting a fire are both liable for the payment of workers’ compensation benefits

Levy v Plainview Fire Dept., 89 AD3d 1331

Danny Levy, a member of the Plainview Fire Department, submitted a volunteer firefighters' claim for benefits based upon injuries allegedly sustained while assisting the City of New York Fire Department at the World Trade Center disaster in September 2001.

The Workers' Compensation Board awarded claimant benefits, finding dual liability between the Plainview Fire Department and the self-insured employer, the City of New York, on the ground that Levy's activities at ground zero were directed and controlled by both entities. Rejecting the City’s appeal, the Appellate Division affirmed the Board’s ruling.

The court noted that the General Municipal Law §209-i 1) provides that "Whenever a volunteer [firefighter] is within this state, but outside the area regularly served by the fire company or fire department of which [the volunteer] is a member and has knowledge of a fire or other emergency at or near the place where [the volunteer] is for the time being, such volunteer . . . may report to the officer in command of the paid or volunteer fire company or paid or volunteer fire department, or in command of one of the paid or volunteer fire companies or one of the paid or volunteer fire departments, engaged in the handling of any such fire or other emergency and, on an individual basis, offer his [or her] services to assist such fire company or fire department. After [the volunteer's] services are so accepted, the volunteer . . . shall then be entitled to all powers, rights, privileges and immunities granted by law to volunteer [firefighers] during the time such services are rendered, in the same manner and to the same extent as if [the volunteer] were a volunteer member of the fire company or fire department which he [or she] is assisting, including benefits under the volunteer [firefighters'] benefit law."

The Appellate Division said that the record establishes that Levy initially volunteered on his own at ground zero on September 11, 2001. Thereafter, on September 12, 2001, claimant reported to the Plainview fire house where the fire chief requested volunteers to assist in the rescue and recovery efforts at ground zero. Levy testified that over the course of the next two weeks, he reported to the City's headquarters with other Plainview firefighters who volunteered and that their activities were then directed and controlled by the City.

Accordingly, the court held that substantial evidence supported the Board's factual conclusions regarding Levy’s dual employment.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_08514.htm

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Retirement System reduces former DOCS employee’s pension after determining that he had falsified his time and attendance records

Source: Office of the State Comptroller

State Comptroller Thomas P. DiNapoli’s office announced that the New York State Employees’ Retirement System is recalculating the pension of a former director at the state Department of Correctional Services (DOCS) after an investigation by his office found that he took Fridays off for 17 years at taxpayer expense.

Howard Dean, 66, of Locke, N.Y., pleaded guilty last year to second degree grand larceny and is awaiting sentencing by Oneida County Judge Barry Donalty. On Tuesday, Judge Donalty postponed Dean’s sentencing to May 10. The case is being prosecuted by Oneida County District Attorney Scott D. McNamara.

Meanwhile, the Comptroller’s office has cut Dean’s annual state retirement benefit by nearly $4,000 and is seeking recovery of $13,500 in pension payments made since his 2008 retirement, based on his admission that he was paid for 17 years of Fridays that he did not work.

“This recalculation and the prosecution sends a key message to any abuser entrusted with public funds: we will find you, we will hold you accountable and we will make you pay,” DiNapoli said. “My office will not tolerate abuses of the state pension system. When a person commits fraud which boosts their pension benefits, we will aggressively seek to cut their payments to account for their theft to the full extent of the law.”

DiNapoli is pushing proposed legislation to elevate official misconduct to a felony and force public officials to pay penalties of up to twice the amount gained by their crimes.

An investigation and audit by DiNapoli and the State’s Inspector General’s office found that Dean defrauded the state of nearly $500,000 in unearned salary and improper perks while serving as director of the DOCS Food Production Center in Rome, N.Y.

Dean freely admitted to auditors that he did not work Fridays for 17 years and the investigation concluded that he had the support of senior management in many of his improprieties. Since then, DOCS has indicated that it has improved internal controls and trained staff to identify fraud and abuse.

The State Comptroller encourages the public to help fight fraud and abuse. New Yorkers can report allegations of fraud, corruption or abuse of taxpayer money by calling the toll-free Fraud Hotline at 1-888-672-4555, by filing a complaint by mail complaint by writing to: Office of the State Comptroller, Investigations Unit, 14th Floor, 110 State St., Albany, NY 12236 or online by e-mail at investigations@osc.state.ny.us .

If a CBA sets out a broad arbitration clause, arbitrability of a grievance depends on the relationship of the subject matter of the dispute to the general subject matter of the CBA

If a CBA sets out a broad arbitration clause, arbitrability of a grievance depends on the  relationship of the subject matter of the dispute to the general subject matter of the CBA

Matter of Haessig (Oswego City School Dist.), 2011 NY Slip Op 09723, Appellate Division, Fourth Department

In this CPLR Article 75 action the president of the Oswego Classroom Teachers Association, Brian Haessig, sought a court order to compel the arbitration of a grievance filed after the school district assigned an additional instructional class to teachers for the 2010-2011 school year. The school district, on the other hand, asked for a stay of arbitration on the ground that the grievance was not arbitrable.

The Appellate Division affirmed Supreme Court’s granting Haessig’s petition while denying the school district’s cross-motion to stay the arbitration.

Citing Board of Educ. of Watertown City School Dist. [Watertown Educ. Assn.], 93 NY2d 132, the Appellate Division explained that when, as was here the case, the collective bargaining agreement [CBA] contains a broad arbitration clause, the court’s determination of arbitrability is limited to "whether there is a reasonable relationship between the subject matter of the dispute and the general subject matter of the CBA.”

In addition, the Appellate Division said that notwithstanding the CBA provision that "the term grievance' shall not apply to any matter as to which (1) the method of review is prescribed by law, or rules or regulation having the force or effect of law…”the fact that the Commissioner of Education has promulgated regulations pertaining to teacher class loads (see 8 NYCRR 100.2 [i]),” such a provision “does not exclude that subject from the scope of arbitration under the CBA,” explaining that “although Education Law §310 permits any aggrieved party to appeal by petition to the Commissioner of Education, that statute does not mandate a particular method of review and does not preclude submission of disputes concerning teacher class loads to arbitration.”

In addition to rejecting other arguments raised by the school district in support of its position, the court noted that Association “did not abandon its right to arbitrate the [instant] grievance by filing a notice of claim with the Public Employment Relations Board concerning an improper practice charge.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2011/2011_09723.htm

Reopening an appeal decided by the Commissioner of Education

Reopening an appeal decided by the Commissioner of Education

Application to reopen the Appeal of Michael P. Thomas, Commissioner of Education Decision #16,322

8 NYCRR §276.8 [of the Commissioner’s regulations] address the procedures for submitting an application to reopen a prior decision by the Commissioner. The rule provides that such an application is considered solely to the discretion of the Commissioner and such applications will not be granted in the absence of a showing that the original decision was rendered under a misapprehension of fact or that there is new and material evidence that was not available at the time the decision was made. 

Significantly, a reopening “may not be used to augment previously undeveloped factual assertions and arguments, to advance new legal arguments or to merely reargue issues presented in a prior appeal.”

The appeal that Thomas sought to have reopened had been dismissed as untimely. 

In his application for reopening, Thomas alleged that the Commissioner Steiner did not rule on his request for an order compelling the employer to cease certain actions. The Commissioner, however, said that as his appeal was found to be untimely, it was unnecessary address Thomas’ request in this regard.

Thomas, said the Commissioner, failed to demonstrated that the decision in his underlying appeal was rendered under a misapprehension of fact, nor has he presented any new and material evidence that was not available at the time the decision was made but was attempting to reargue the original application. However, the Commissioner explained, “It is well settled that mere reargument of issues presented in a prior appeal is not a basis for reopening,” citing a number of earlier decisions including Application of Gillen, 50 Ed Dept Rep, Decision No. 16,112, and denied Thomas’ application to reopen the underlying appeal.

The Thomas decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16322.html

The Gillen decision is posted on the Internet at:
http://www.counsel.nysed.gov/Decisions/volume50/d16112.htm