Employee found to have violated employer's domiciliary policy terminated

Employee found to have violated employer's domiciliary policy terminated
Adrian v Board of Educ. of City School Dist. of City of Niagara Falls, 2012 NY Slip Op 01293, Appellate Division, Fourth Department

Roxanne Adrian sued to annul the School Board’s determination terminating her employment with Niagara Falls City School District based on her failure to comply with the District's residency policy. The District’s policy required District employees to be domiciliaries of the City of Niagara Falls.

The Appellate Division vacated Supreme Court’s granting Adrian’s petition, stating that . “it is well established that a "domicile means living in [a] locality with intent to make it a fixed and permanent home. "

The court said that the evidence presented to the Board was sufficient to establish that Adrian was not a domiciliary of the City but rather was domiciled in Williamsville.

The evidence considered by the Board included proof that Adrian maintained a phone line at the Williamsville residence but not at the Niagara Falls residence that Department of Motor Vehicles records indicated that she lived at the Williamsville address.*

The court also noted that “a surveillance company observed petitioner on six separate occasions, during different time periods, and found that [Adrian] she never went to the Niagara Falls residence and always left from and returned to the Williamsville residence.

While Adrian submitted some evidence “demonstrating that the Niagara Falls residence may have been her domicile” such as her voter registration card, rent payment receipts, driver's license and cable statements, that evidence was not so overwhelming as to support Supreme Court's determination granting Adrian’s petition.

The Appellate Division, citing O’Connor v Board of Education, Niagara Falls City School District, 48 AD3d 1254, leave to appeal dismissed 10 NY3d 928, also rejected Adrian’s claim the District improperly failed to conduct a hearing before terminating her, explaining that such a hearing was not required by law.

In Gigliotti v Bianco, 82 AD3d 1636, the court said that assuming that the District had provided Gigliotti with an opportunity, in contrast to a hearing, to show that the educator satisfied the District’s requirement regarding domicile, the court disagreed with the District’s conclusion that Gigliotti was not domiciled in Niagara Falls.

Significantly, the court commented that although the District did not conduct a hearing before terminating Gigliotti’s employment, such a hearing was not "required by statute or law," citing Colton v Berman, 21 NY2d 322

Typically courts have viewed employees who lack required licenses as being “unqualified,” in contrast to being “incompetent,” to perform the duties of the position. In
Adrian failing to meet the school district’s domiciliary requirements apparently was similarly viewed.

* Although an individual may have, and maintain, a number of different residences simultaneously, he or she can have, and maintain, only one domicile at a given time. New York courts and the Department of Education have consistently interpreted residence as akin to domicile. Domicile requires bodily presence in a place with an intent to make it a fixed and permanent home (Matter of Newcomb, 192 NY 238 at 250 [1908]

The Adrian decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01293.htm

Town Law’s shorter statute of limitation to bring an Article 78 action challenging an adverse disciplinary determination trumps longer Civil Service Law’s statute of limitations

Town Law’s shorter statute of limitation to bring an Article 78 action challenging an adverse disciplinary determination trumps longer Civil Service Law’s statute of limitations

Robida v Ziemba, 2012 NY Slip Op 01041, Appellate Division, Fourth Department

Town of Cheektowaga police officer David K. Robida was served with disciplinary charges pursuant to both Civil Service Law §75 and Town Law §155. A hearing was held in accordance with those statutes.

Ultimately the Town Board adopted a resolution that terminated Robida pursuant to Town Law §155.

Town Law §155 specifically provides that a CPLR Article 78 proceeding to review a determination pursuant to the statute must be commenced within 30 days of the determination; §76 of the Civil Service Law provides that such a proceeding must be commenced within four months after the determination becomes final. *

The Appellate Division said that it was undisputed that Robida commenced his action more than 30 days after the Town Board's determination. Accordingly, said the court, “it is time-barred.”

The court rejected Robida’s argument that the time limits set out in §75 controlled and thus his petition was timely, ruling that “the 30-day limitations period set forth in Town Law §155 is not limited to those disciplinary proceedings that were brought solely pursuant thereto.”

The Appellate Division explained that the statute of limitations for a CPLR Article 78 proceeding pursuant to which Robida sought to annul th Board's determination is governed by CPLR §217(1), which provides that, "u]nless a shorter time is provided in the law authorizing the proceeding," the proceeding must be commenced within four months after the determination to be reviewed becomes final.

As in this instance the "shorter time" was set out in Town Law §155, which authorized the disciplinary proceeding, Robida was required to file his petition challenging the Town’s determination within 30 days of the Board's decision becoming final.

* §76.1 of the Civil Service Law provides that an appeal from an adverse disciplinary decision made pursuant to §75 of the Civil Service Law may be made to the civil service commission having jurisdiction within twenty days after service of written notice of the determination to be reviewed or in accordance with the provisions of Article 78 of the CPLR. An even shorter statute of limitations is set out in §3020-a.5 of the Education Law for appealing a disciplinary arbitration decision pursuant to Article 75 of the CPLR – 10 days. 

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_01041.htm

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Refusal to accept assignments ruled misconduct

Refusal to accept assignments ruled misconduct

NYC Transit Authority v Alday, OATH Index #475/12

The New York City Transit Authority charged a civil engineer with insubordination after he had repeatedly refused to accept work reassignments given to him by his supervisor despite his subsequently complying with the supervisor’s directive after being order to do so by a higher level superior.

Rejecting the employee’s defense that he wanted to make sure it was "the official management decision” as he did not believe his temporary supervisor had the authority to “reassign people just like that,” OATH Administrative Law Judge Tynia D. Richard held that employee’s repeated refusals to accept the reassignments given to him by his temporary supervisor constituted misconduct.

Dismissing two other charges of alleged misconduct filed against the employee, Judge Richard, in consideration of the individual's “nearly clean record of discipline and 28-year tenure with the City,” recommended the Department imposed the penalty of a reprimand rather than the 15-day suspension without pay proposed by the Transit Authority.

The ALJ explained that the lesser penalty was being recommended as two of the three charges of alleged misconduct had been dismissed as the agency had “failed to prove” them.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-475.pdf

Children permitted to testify as witnesses in a disciplinary arbitration

Children permitted to testify as witnesses in a disciplinary arbitration

Stergiou v New York City Dept. of Educ., 2012 NY Slip Op 50291(U), Supreme Court, New York County, Justice Shlomo S. Hagler

One of the issues in this Article 75 of the Civil Practice Law appeal from an adverse disciplinary arbitration award was the arbitrator’s permitting 8-year old third grade students to testify in a disciplinary hearing “because she believed that they were competent witnesses.” The arbitrator excluded the accused teacher from the hearing room while the students were testifying but permitted the teacher’s attorney to cross-examine them.

Justice Hagler, noting that under Education Law §3020-a the parties are subject to compulsory arbitration, said that the arbitration award must satisfy the tests set out in Article 75 and, in addition, also satisfy further judicial scrutiny in that it "must have evidentiary support and cannot be arbitrary and capricious."

Addressing the teachers argument that the arbitrator permitted incompetent witnesses to testify and failed to let her “confront the witnesses,” Justice Hagler said that the “courts are the gate-keepers in ensuring that only competent witnesses may testify under oath” and children may testify “after a preliminary examination gauging the capacity and intelligence of the child, the appreciation of the difference between right and wrong, and the obligations of taking an oath.”

The court then quoted United States Supreme Court Justice Brewer’s statement in Wheeler v United States, 159 US 523, that "The decision of this question rests primarily with the trial judge [or hearing officer], who sees the proposed [child] witness, notices his manner, his apparent possession or lack of intelligence, as well as his understanding of the obligations of an oath."

Justice Hagler found that the arbitrator conducted an adequate voir dire or preliminary examination into each witnesses’ competency and was able to gauge their level of understanding, ability to tell the truth and to take an oath. In addition, said the court, the arbitrator’s “line of inquiry was satisfactory” and the teacher’s counsel “did not seek any voir dire whatsoever into the minor witnesses competency.”

Further, Justice Hagler held that “Even assuming arguendo that the [arbitrator] did not have a proper foundation for children's testimony, the [she] was not bound by the strict rules of evidence and was permitted to elicit such testimony that she believed would be just and proper under the circumstances.”

As to the teacher’s claim that she was denied her due process rights to hear the testimony or confront the eight (8) year old witnesses, the court said that she “did not have an absolute right to do so in the context of an arbitration/administrative disciplinary hearing,” citing Matter of Abdur-Raheem v Mann, 85 NY2d 113.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_50291.htm

Hearing officer recommends correction officer found to have fraternized with an inmate be dismissed

Hearing officer recommends correction officer found to have fraternized with an inmate be dismissed

NYC Department of Corrections v Tillery, OATH Index #467/12

OATH Administrative Law Judge John B. Spooner sustained charges that a correction officer engaged in undue familiarity with an ex-inmate and made false statements about the relationship.

Judge Spooner found the officer’s testimony that the two had never met before the ex-inmate had completed his sentence lacked credibility, considering that the officer had worked in the same dormitory where the inmate was incarcerated for three months under her supervision.

Noting that respondent’s false statements were nearly as troubling as the misconduct itself, the ALJ recommended termination of the officer’s employment.

Other decisions addressing workplace fraternization issues include: Vega v Dept. of Correctional Services, 588 NYS2d 202; Laspisa v Mahoney, 603 NYS2d 536; State of New York v Wal-Mart Stores, 207 A.D.2d 150; and DeCintio v Westchester County Medical Center, 821 F2d 111

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-467.pdf