Teacher’s Facebook posting results in disciplinary action

Teacher’s Facebook posting results in disciplinary action

Matter of Rubino v City of New York, 34 Misc 3d 1220(A)

This decision by State Supreme Court Justice Barbara Jaffee demonstrates the consequences that may result from a posting on an individual’s Facebook "wall". In this instance the posting led to charges alleging “misconduct, neglect of duty and conduct unbecoming her profession” being filed against the teacher.

Ultimately the disciplinary hearing officer found the educator guilty and the New York City Department of Education [DOE] terminatated the teacher from her position.

In considering the teacher’s appeal, although Justice Jaffee affirmed the hearing officer’s findings as to the educator’s guilt, she vacated the penalty imposed and remanded the matter to the Department for the purpose of its setting a lesser penalty.

This remand, said the court, was required in consideration of the teacher’s “15-year employment history with the DOE was unblemished before she posted the offensive comments, and she posted them outside the school building and after school hours.”

Under the circumstances, said Justice Jaffee, the educator’s termination is so disproportionate to her offense as to shock one’s sense of fairness, applying the Pell Doctrine [Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222]. 

On remand the Hearing Officer, Randi Lowitt, Esq., determined that the penalty to be imposed should be a two-year suspension without pay. Hearing Officer Lowett's decision is posted on the Internet at:
http://www.parentadvocates.org/nicemedia/documents/Lowitt_second_decision.pdf.

Justice Jaffee's decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/pdfs/2012/2012_30246.pdf

Pre-termination hearings required when attempting to terminate an employee pursuant to Civil Service Law §73

Pre-termination hearings required when attempting to terminate an employee pursuant to Civil Service Law §73

Matter of Prue v Hunt, 78 NY2d 364

§73 of the Civil Service Law authorizes the termination and replacement of civil servants when they have been continuously absent from and unable to perform the duties of their position for one year or more by reason of a disability that did not result from an occupational injury or disease.

The significant questions raised in the Prue case is whether the Federal Due Process Clause requires a hearing before an employee may be terminated under §73. The Court of Appeals said that "in light of Cleveland Board of Education v Loudermill (470 US 532)," a §73 discharge must be proceeded by a pre-termination notice and a minimal opportunity to be heard. The ruling indicates that "to the extent that [the Court's] holding in Economico v Pelham (50 NY2d 120) permits a §73 discharge with only a post-termination hearing, it is superseded by Loudermill."

Prue, a police officer with the Syracuse Police Department, was seriously injured in an accident unrelated to his work on November 15, 1986. This injury allegedly prevented him from performing his duties as a police officer. Having exhausted all his paid vacation, personal and sick leave by October 15, 1987, petitioner requested reinstatement but failed to submit the medical documentation necessary to show that he was able to perform the duties of his position.

On November 13, 1987, Prue again requested reinstatement, this time submitting a letter from his physician stating that he was able to return to a desk job. The decision notes that for some ten years Prue, as President of the PBA, had been given a desk job in the department pursuant to a collective bargaining agreement.

However Prue's request for desk duty was refused and he was terminated his employment pursuant to §73.

Although Prue was offered a post-termination Economico hearing to be held within five days of his termination, he declined the hearing and commenced this Article 78 proceeding contesting his termination. The Court of Appeals decided that Prue's termination under §73 is controlled by the U.S. Supreme Court's ruling in Loudermill. It said that "the potential for an erroneous discharge or an inappropriate exercise of the discretion conferred under §73" justifies the initial burden placed on department in requiring it provide Prue with some pre-termination opportunity to respond. "

Also noted was the Court's view that Prue's discharge raised questions regarding his physical condition and whether his ability to perform the desk job he had filled for the preceding ten years constitutes an "ability to perform the duties of his position" within the meaning of §73.

In addition, the Court said that "like the Ohio statute in Loudermill, §73 calls for the termination of employees in the discretion of the employer." Consideration of Prue's contentions concerning his ability to perform the desk job he had previously held could have been a significant factor in the initial discretionary decision of whether to order termination under §73. However, he was given no opportunity to make these arguments prior to his discharge under the procedure

followed by Department.

As to the nature of the hearing to be given an employee in a §73 termination situation, the Court said that it concluded that Due Process requires only notice and some opportunity to respond.

The decision indicates that the formality and procedural requisites of a hearing can vary depending on such factors as the importance of the interest involved, the extent to which that interest may be lost, the hardship imposed by the loss and the availability of subsequent proceedings. The Court concluded that a pre-termination hearing was justified in §73 cases.

Pre-termination hearings required when attempting to terminate an employee pursuant to Civil Service Law §73

Pre-termination hearings required when attempting to terminate an employee pursuant to Civil Service Law §73

Matter of Prue v Hunt, 78 NY2d 364

§73 of the Civil Service Law authorizes the termination and replacement of civil servants when they have been continuously absent from and unable to perform the duties of their position for one year or more by reason of a disability that did not result from an occupational injury or disease.

The significant questions raised in the Prue case is whether the Federal Due Process Clause requires a hearing before an employee may be terminated under §73. The Court of Appeals said that "in light of Cleveland Board of Education v Loudermill (470 US 532)," a §73 discharge must be proceeded by a pre-termination notice and a minimal opportunity to be heard. The ruling indicates that "to the extent that [the Court's] holding in Economico v Pelham (50 NY2d 120) permits a §73 discharge with only a post-termination hearing, it is superseded by Loudermill."

Prue, a police officer with the Syracuse Police Department, was seriously injured in an accident unrelated to his work on November 15, 1986. This injury allegedly prevented him from performing his duties as a police officer. Having exhausted all his paid vacation, personal and sick leave by October 15, 1987, petitioner requested reinstatement but failed to submit the medical documentation necessary to show that he was able to perform the duties of his position.

On November 13, 1987, Prue again requested reinstatement, this time submitting a letter from his physician stating that he was able to return to a desk job. The decision notes that for some ten years Prue, as President of the PBA, had been given a desk job in the department pursuant to a collective bargaining agreement.

However Prue's request for desk duty was refused and he was terminated his employment pursuant to §73.

Although Prue was offered a post-termination Economico hearing to be held within five days of his termination, he declined the hearing and commenced this Article 78 proceeding contesting his termination. The Court of Appeals decided that Prue's termination under §73 is controlled by the U.S. Supreme Court's ruling in Loudermill. It said that "the potential for an erroneous discharge or an inappropriate exercise of the discretion conferred under §73" justifies the initial burden placed on department in requiring it provide Prue with some pre-termination opportunity to respond. "

Also noted was the Court's view that Prue's discharge raised questions regarding his physical condition and whether his ability to perform the desk job he had filled for the preceding ten years constitutes an "ability to perform the duties of his position" within the meaning of §73.

In addition, the Court said that "like the Ohio statute in Loudermill, §73 calls for the termination of employees in the discretion of the employer." Consideration of Prue's contentions concerning his ability to perform the desk job he had previously held could have been a significant factor in the initial discretionary decision of whether to order termination under §73. However, he was given no opportunity to make these arguments prior to his discharge under the procedure

followed by Department.

As to the nature of the hearing to be given an employee in a §73 termination situation, the Court said that it concluded that Due Process requires only notice and some opportunity to respond.

The decision indicates that the formality and procedural requisites of a hearing can vary depending on such factors as the importance of the interest involved, the extent to which that interest may be lost, the hardship imposed by the loss and the availability of subsequent proceedings. The Court concluded that a pre-termination hearing was justified in §73 cases.

Names of retired New York City police officers not available pursuant to a FOIL request

Names of retired New York City police officers not available pursuant to a FOIL request

Empire Ctr. for N.Y. State Policy v New York City Police Pension Fund, 88 AD3d 520

The Appellate Division affirmed a Supreme Court ruling that denied the Empire Center for New York State Policy’s petition seeking an order directing the New York City Police Pension Fund to comply with Freedom of Information Law (FOIL) request for the names of all of the Funds retired members.

Noting that the Court of Appeals held that Public Officers Law §89(7) exempts from disclosure both the names and addresses of retirees of the New York City Police Department receiving pensions and annuities [see Matter of New York Veteran Police Assn. v New York City Police Dept. Art. I Pension Fund (61 NY2d 659)], the Appellate Division said that Supreme Court had properly denied the petition as Empire Center offered “no persuasive argument distinguishing its FOIL request from that in Matter of New York Veteran Police Assn.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2011/2011_07259.htm

Where arbitration is statutorily mandated, the arbitrator’s decision is subject to "closer judicial scrutiny” than might otherwise be the case

Where arbitration is statutorily mandated, the arbitrator’s decision is subject to "closer judicial scrutiny” than might otherwise be the case

Powell v Board of Educ. of Westbury Union Free School Dist., 2012 NY Slip Op 00790, Appellate Division, Second Department

The Education Law §3020-a arbitrator sustained certain charges of misconduct against Darnel Powell and terminated his employment.

Powell appealed, contending that the arbitrator's determination was arbitrary and capricious because the arbitrator did not resolve issues of credibility in his favor.

The Appellate Division rejected Powell’s claim, explaining that in the event "the evidence is conflicting and room for choice exists," a court may not weigh the evidence or reject the choice made by the arbitrator.

Sustaining the arbitrator's ruling, the court, however, pointed out that where the obligation to arbitrate arises as the result of a statutory mandate, as is the case in Education Law §3020-a disciplinary procedures, the arbitrator’s determination is subject to "closer judicial scrutiny" -- i.e., greater scrutiny than it might otherwise receive where submitting the matter to arbitration is a decision of the parties.* Indeed, said the Appellate Division, "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious."

Further, a court in reviewing a decision that resulted from compulsory arbitration inquires as to “whether the decision was rational or had a plausible basis," but otherwise accepts the arbitrators' credibility determinations, even where, as noted above, there is conflicting evidence and room for choice exists."

The decision also commented that in this instance, and contrary to Powell’s contention, the arbitrator properly refused to admit into evidence his proffered polygraph test evidence.

* Presumably this standard of review would not apply in arbitrations not statutorily mandated such as arbitrations available in disciplinary procedures negotiated pursuant to §76.4 of the Civil Service Law. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_00790.htm