Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

Employee's inability to provide the necessary urine sample for a drug test because of a medical condition trumps allegations of misconduct

NYC Department of Sanitation v E.L., OATH Index #2107/11

The Department of Sanitation charged a sanitation worker, E.L., with failure to complete a federally mandated drug test in violation of Rule 2.5 of the Department’s Code of Conduct. 

E.L. had appeared for the test and was cooperative but was unable to provide the required amount of urine in the three hours he was given. He subsequently submitted a note from his urologist, explaining that E.L. had urological conditions that could have prevented him from urinating. Later E.L. was diagnosed as having prostate cancer. 

The Medical Review Officer (MRO), who had no specialized knowledge in urology, ruled that the note submitted by E.L.’s physician were insufficient to excuse for E.L.’s failure to provide a sufficient sample.  In addition, the MRO refused to consider E.L.’s prostate cancer as that condition was not diagnosed within the five-day time period the regulations gave test subjects for providing a note. 

As a result, the MRO marked respondent as having refused to take the drug test and the Department initiated disciplinary action against E.L. 

OATH Administrative Law Judge Kara J. Miller found that both the test collector and the MRO failed to follow federal drug testing procedures, and these procedural errors mandated cancellation of E.L.’s test. 

In addition Judge Miller ruled that even absent the necessity for cancellation, the charges against E.L. should be dismissed as his actions were not willful and the evidence established that he was physically unable to provide the required amount of urine when asked to the urine sample requested and dismissed the charges the Department had filed against E.L.  

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/11_Cases/11-2107.pdf

Commissioner’s holding office for a specified term may only be removed during such term for cause

Commissioner’s holding office for a specified term may only be removed during such term for cause

Sedacca v Kelly, 2012 NY Slip Op 01319, Court of Appeals

The Court of Appeals has ruled that the Nassau County Executive did not have the authority to terminate Commissioners of the Nassau County Assessment Review Commission (ARC), in the absence of cause, prior to the expiration of their fixed, statutory terms. 

The ARC consists of nine commissioners appointed by the County Executive subject to approval by the County Legislature and have staggered five-year terms and that no more than six of the commissioners can be enrolled voters of the same political party.

The outgoing Nassau County Executive had appointed six ARC Commissioners. The counsel to the then-newly elected County Executive sent letters to each of the nine commissioners informing them that they were being removed from office pursuant to §203 of the Nassau County Charter. The letter stated that the commissioners had an opportunity to be heard, if they so desired. 

The Court of Appeals noted that the Nassau County Charter vests the County Executive with authority to appoint members of county boards and commissions, subject to approval of the County Legislature, citing Nassau County Charter § 203 [1]). Concomitantly, said the court, "[t]he County Executive may at any time remove any person so appointed; provided that in the case of members of boards and commissions appointed for definite terms, no removal shall be made until the person to be removed has been serv[ed] with a notice of the reasons for such removal and given an opportunity to be heard, publicly if he or she desires, thereon by the County Executive. The decision of the County Executive shall be final." 

Nassau County argued that, according to the plain language of the County Charter, the County Executive was within his authority to terminate Commissioners notwithstanding the absence of any wrongdoing on their part and regardless of the statutory term of office “in order to appoint individuals of his choosing.”

The Court of Appeals said that, in its view, the County’s argument “is inconsistent with the salutary purpose of the legislation at issue.” The court explained that “Although Real Property Tax Law §523-b does not set forth any procedure for the removal of commissioners, the statute demonstrates the legislative intent to protect the ARC from political influence. It is evident that the fixed, staggered terms of office along with the requirement that all of the commissioners must not be members of a single political party, are designed to promote stability of membership and political diversity. Notably, the five-year term of office exceeds the length of the County Executive's own. This design may frustrate the most recent expression of the electorate's mandate, but it is meant precisely to avoid a wholesale change of membership of the ARC upon the installation of each successive administration.”

As Nassau County’s Charter makes clear that when members of a commission appointed for a fixed term are removed, the "reasons for such removal" must be provided. "Reasons," in this context said the Court of Appeals, can reasonably be read as a synonym for "cause." Thus §203 permits removal of commissioners serving fixed terms for cause, but not otherwise. The court ruled that "the Real Property Tax Law §523-b and County Charter §203 are not incompatible, and read them together "to accomplish the clear legislative intent."

Although the Court of Appeals said that the commissioners, as County employees, are not protected by §36 of Public Officers Law,* it then noted that “it is instructive that a finding of some type of misconduct would be required to remove members of the similarly situated Board of Assessment Review (see 4 Ops Counsel SBEA No. 27 [1974])”**.

The court then observed that “Removing the Commissioners without cause under County Charter §203 would frustrate the legislative intent by nullifying the requirements of the RPTL and rendering the staggered statutory terms of office in RPTL 523-b superfluous. \”

Thus, said the court, under the circumstances the commissioners are not essentially at-will employees, subject to termination for any reason whatsoever.

As to the several commissioners’ claim that that they were entitled to attorneys' fees they incurred in the course of this litigation, the Court of Appeals disagreed, holding that although the County is required to "provide for the defense" of an employee involved in a civil action arising out of an act or omission that occurred during the scope of his or her employment, in this instance the “employees commenced the action.” Accordingly, there is no obligation on the part of the County to pay for their "defense."

* §36 of the Public Officers Law provides for the removal of public officers "for any misconduct, maladministration, malfeasance or malversation in office."

** Office of Real Property Tax Services, New York State Department of Taxation and Finance. Opinions of Counsel are posted on the Internet at: http://www.tax.ny.gov/pubs_and_bulls/orpts/legal_opinions/index.htm

The decision is posted on the Internet at:

http://www.publicpersonnellaw.blogspot.com/

Filing a complaint about a school teacher with the school district may not be protected by an “absolute privilege”

Filing a complaint about a school teacher with the school district may not be protected by an “absolute privilege”
Posner v Lewis, 2012 NY Slip Op 01323, Court of Appeals

In this tort action, the Court of Appeal said that it must decide whether defendants' course of conduct in instigating complaints to school authorities against Posner, a nontenured teacher, is entitled to an absolute privilege under Brandt v Winchell (3 NY2d 628]) that would warrant dismissal of Posner's causes of action for prima facie tort and tortious interference with prospective contractual rights.

The Court’s conclusion: Assuming the truth of the allegations in the complaint, as we must at this early stage of the litigation, we conclude that defendants' conduct is not immunized by Brandt.

In Brandt the court recognized an "immunity from civil suit" for truthful communications resulting in "the exposure of those guilty of offenses against the public" (3 NY2d at 635).

The Posner decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01323.htm

A probationer has the burden of establishing that he or she was terminated for a constitutionally impermissible reason or in violation of a statute or decisional law

A probationer has the burden of establishing that he or she was terminated for a constitutionally impermissible reason or in violation of a statute or decisional law

Appeal of Lindsey Stephenson, Decisions of the Commissioner Education, Decision No. 16,329

Lindsey Stephenson, a probationary educator, was notified that her position was being abolished, effective June 30, 2010, and that she would be placed on a preferred eligible list. 

Subsequently, and as the result of an investigation following a report concerning an alleged incident involving students, the principal submitted a letter to the superintendent recommending that Stephenson be terminated. 

On the basis of the principal’s recommendation, superintendent notified Lindsey that he would recommend that the board terminate her from her position. 

Lindsey requested, and received a written statement of the reasons for the superintendent’s recommendation to terminate her services as a probationary teacher pursuant to Education Law §3031. Ultimately the school board voted to terminate Lindsey’s employment and to remove her from the preferred eligible list. 

Although the Commissioner dismissed Lindsey’s appeal for a number of other technical reasons, his decision notes that “it is well settled that a school employee who elects to submit an issue for resolution through a contractual grievance procedure may not bring an appeal to the Commissioner of Education for review of the same matter.”

Here the record indicated that Lindsey brought a grievance in which she alleged that the district violated the parties’ collective bargaining agreement and as relief “sought rescission of her termination and placement on the preferred eligibility list.” Her grievance was denied. Lindsey than filed a second grievance, alleging that the district violated certain provisions of the parties’ collective bargaining agreement. This grievance was also denied.

The Commissioner then said the “Even if the petition was not dismissed on procedural grounds, it would be dismissed on the merits.  Generally, a board of education has the unfettered right to terminate a probationary teacher or administrator’s employment for any reason unless the employee establishes that he or she was terminated for a constitutionally impermissible reason or in violation of a statute or decisional law.”

Noting that Lindsey disagreed with School Board’s decision to terminate her services, the Commissioner found that she had not establish that Board had terminated her employment for a constitutionally impermissible reason or in violation of a statutory proscription or decisional law.  Nor, said the Commissioner, the record did not support Lindsey’s assertions that Board had acted in bad faith

Finding that “On the record before me, there is no basis for overturning [the Board’s] decision to terminate [Lindsey’s] probationary appointment,” the Commissioner dismissed Lindsey’s appeal.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16329.html

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

[Issued during the week of February 13 - 19, 2012]

For details, click on the text highlighted in color below.

DiNapoli Makes Property Tax Cap Information Available

Local governments and school districts are required to report the information used in calculating their tax cap for the coming fiscal year prior to adopting a budget. An estimated 4,000 local governments and school districts may be required to report this information annually. Over 2,000 local governments have already submitted their tax cap reports and that information is now available on Open Book New York, which will be updated nightly. Please note, the tax cap information found on Open Book New York reflects the data as submitted by local governments; it has not been edited or certified by the Comptroller’s Office.


DiNapoli: Village Officials Used LDC to Avoid State Procurement Laws

The village of Cornwall–on–Hudson skirted state procurement laws by using the Cornwall–on–Hudson Local Development Corporation to construct a new public works garage that was built on unsuitable land, failed to meet building codes and cost $929,000, according to an audit released Wednesday by New York State Comptroller Thomas P. DiNapoli.


DiNapoli: Pension Fund Gains in Third Quarter of FY 2011

The New York State Common Retirement Fund (Fund) was valued at $140.3 billion after Fund investments posted an estimated 4.83 percent rate of return for the third quarter ending December 31, 2011, according to New York State Comptroller Thomas P. DiNapoli.


DiNapoli’s Office Releases Municipal Audits

New York State Comptroller” office completed the following audits in the last two weeks:

The Broome County Industrial Development Agency;

The Town of Clifton;

The Village of Earlville;

The Town of Guilford;

The Town of Hannibal;

The Indian Falls Fire Department;

The Town of New Hudson;

The Village of Nyack;

The Village of Rouses Point;

The Rushford Lake Recreational District;

The Town of Warren; and;

The Westport Fire District.