Disciplinary penalty imposed based, in part, the hearing officer’s reliance on an altered videotape of incident rejected

Disciplinary penalty imposed based, in part, the hearing officer’s reliance on an altered videotape of incident rejected

Principe v New York City Dept. of Educ. 94 AD3d 43

Found guilty of certain disciplinary charges, the employee appealed the termination of his employment by the New York City Department of Education. The Appellate Division granted his petition, agreeing with the holding by the Supreme Court that under the circumstances imposing the penalty of dismissal was excessive.

The Appellate Division said that it also agreed with Supreme Court’s view that “by discrediting [the teacher’s] entire testimony, the Hearing Officer failed to consider all the circumstances, including the disciplinary histories of the students involved, the context of the threatening environment in which the two incidents took place and that, at the time of the two incidents, [the teacher] was, as he testified, ‘only fulfilling [the] demands’ of his position as dean of discipline.”

Further, said the court, it appeared that the hearing officer gave “an inordinate amount of credit” to a portion of a video recording that had been altered from its original format so that it appeared frame by frame at one second intervals rather than its original format of a continuous video recorded in real time. The Appellate Division commented that this alteration to the videotape made what actually transpired during that incident unclear and equivocal.

While the Appellate Division said that it accepted the findings of the Hearing Officer's,* it agreed with Supreme Court that the evidence in this case demonstrates that the educator’s actions were not premeditated. Given all of the circumstances, including the educator’s “spotless record as a teacher for five years and his promotion to dean two years prior to the incidents at issue,” the Appellate Division decided that the penalty excessive and shocking to [its] sense of fairness, citing 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].

Noting that “lesser sanctions are available that would deter [the teacher] from engaging in this conduct in the future, the Appellate Division remanded the matter to the Hearing Officer for the imposition of a lesser penalty consistent with its decision.**

*

** Justices Friedman and Richter dissented in a memorandum by Justice Richter,

The decision is posted on the Internet at:

.http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02560.htm

Employee’s dismissal overturned after court finds that the penalty of termination was so disproportionate as to be shocking to one's sense of fairness

Employee’s dismissal overturned after court finds that the penalty of termination was so disproportionate as to be shocking to one's sense of fairness
James v Hoosick Falls Cent. School Dist., 2012 NY Slip Op 02374, Appellate Division, Third Department

The Board of Education of the Hoosick Falls Central School District terminated Dennis James’ employment.after he was found guilty of disciplinary charges filed against him pursuant to Civil Service Law §75 flowing from his alleged involvement in an off-duty domestic dispute. The District's Superintendent of Schools, Kenneth A. Facin, became concerned about James’ continued presence at the school after he learned of the alleged incident and initiated the disciplinary action.

The Hearing Officer determined that James and his girlfriend had a physical altercation during which James’ girlfriend was injure and "considering the severity of the resultant injuries, nature of [James’] conduct, and the public backlash,” recommended that James be dismissed from his position. The Board adopted the Hearing Officer's findings and terminated James.

One of the first issues addressed by the Appellate Division was James’ argument that “the Hearing Officer erred in basing his determination upon substantial evidence rather than a preponderance of the evidence.”

The Appellate Division rejected this theory, citing Rosenthal v Hartnett, 36 NY2d 269. The court noted that “Although Civil Service Law §75 does not articulate a specific level of proof for the hearing level (a gap frequently filled by a provision of collective bargaining agreements), the substantial evidence standard that is generally applicable to administrative determinations applies to disciplinary matters involving public employees under the statute.

As to James’ contention that the Hearing Officer admitted into evidence a written statement prepared by an individual who did not appear at the hearing, the court said that §75(2) provides that "[c]ompliance with technical rules of evidence shall not be required" and it is settled that hearsay may be considered at hearings conducted under the statute.”

Finding that substantial evidence supported the Hearing Officer's determination, the Appellate Division said that it would defer to the Hearing Officer's credibility determinations and, “accepting those determinations, the record contains ample evidence of James’ actions to sustain the two charges.”

However, the court found merit in James’ assertion that the penalty was inconsistent with the Pell Doctrine,*arguing that “termination was so disproportionate as to be shocking to one's sense of fairness,” pointing out that James:

[1] had been employed by the District for 20 years without any prior incidents of misconduct;

[2] the misconduct in question occurred off premises; 

[3] the misconduct did not involve anyone associated with the school;

[4] James “did not hold a high profile job at the school;”

[5] the District pursued the disciplinary charges out of concern for the safety of the school, but it was conceded that no member of the school’s staff had indicated a concern about working with James; and

[6] there was no proof introduced indicating that the students at the school were in any danger because of James’ presence.

The Appellate Division said that “under these circumstances, termination is unduly disproportionate” and remitted the matter to the School District “for imposition of a less severe penalty.”

* Pell v Board of Education, 34 NY2d 222.

The decision is posted on the Internet at: http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02374.htm

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Payments for vacation credit upon retirement or resignation must be authorized by formal resolution by the governing body

Payments for vacation credit upon retirement or resignation must be authorized by formal resolution by the governing body

Decisions of the Commissioner of Education, Decision #11173

A board of education resolution appointing its school superintendent included a clause stating that the superintendent would "continue to receive and be eligible for all contractual benefits accrued over his years of service with the District."

When the superintendent resigned he expected to be paid for his accumulated but unused vacation credit and had submitted his resignation "subject to (his) vacation pay." The Commissioner of Education, however, ruled that this was not sufficient to overcome the need for the type of formal resolution required by §92 of the General Municipal Law.*

After holding that paying prior administrators for unused vacation could not be relied upon to support such a payment, the Commissioner concluded that the Board's resolution appointing the superintendent "is not the type of resolution contemplated by §92" as is was not "an act clearly declarative of the will of the Board...to pay any administrator cash in lieu of unused vacation." The Commissioner also ruled that the superintendent had not proved the existence of an "oral contract" to provide for such a payment.

Typically §92 is strictly construed as it expresses a statutory exception to the prohibition against gifts of public monies set out in Article VII, §7 of the State Constitution. Accordingly, the resolution authorizing expenditure such as those to "liquidate" vacation credits**must be clear and unequivocal.

Where a contract, such as one resulting from Taylor Law negotiations, provides for such payments, the prevailing view is that such payments are lawful.

* §92.1 of the General Municipal Law, in pertinent part, provides that “Notwithstanding any other provision of law, any such governing board or mayor may also in like manner provide for cash payment of the monetary value of accumulated and unused vacation time or time allowances granted in lieu of overtime compensation standing to the credit of its officers and employees at the time of their separation from the service, or in case of death in service, to be paid to their beneficiaries.”

** N.B. §92.1, however, is silent with respect to the liquidation of “unused sick leave” upon separation from service or in the case of death while in service.

A tentative collective bargaining agreement between the State and Council 82 Supervisors Unit announced

A tentative collective bargaining agreement between the State and Council 82 Supervisors Unit announced

Source: Office of the Governor

On April 5, 2012 Governor Andrew M. Cuomo and Council 82 Executive Director James Lyman announced a tentative contract agreement between the State and Council 82 Supervisors Unit.

The tentative contract, which is subject to ratification by unit members includes zero percent wage increases for 2011-2013 and ensures protections against layoffs, and offers health benefits commensurate with other state bargaining units. The contract provides for a 2% general salary increase in both 2014 and 2015, 9 days of deficit reduction leave, and adjustments to the health insurance premium.

The agreement follows the pattern of contracts negotiated over the past year and includes:

> A zero percent wage increases for 2011-2013; a 2% increase in both 2014 and 2015.

> The agreement includes 3% and 4% wage increases for 2009-2011; same pattern as other units that have completed negotiations for a new agreement. These increases were previously reserved for in the state financial plan.

> A $1,000 retention bonus paid out $775 in the third year and $225 in the fourth year.

> Deficit Reduction Leave (DRL) totaling nine days, saving $2.3 million. The total deduction for the days comes from the "retro pay for 2009-11."

> Employees will be repaid the value of 4 DRL days in equal installments starting at the end of the contract term.

> Retroactive payments that are scheduled to be paid in one payment this fiscal year.

· A six percent increase for health insurance premiums, making the employee share 16% for individuals and 31% for family premiums.

> A health plan opt-out so officers can opt-out through a spouse/partner to a non-State health plan.

> Members will receive broad layoff protection. However, workforce reductions due to management decisions to close or restructure facilities authorized by legislation, SAGE recommendations or material or unanticipated changes in the state's fiscal circumstances are not covered by this limitation.

COLA pension increases affect Section 207-a retirement benefits

COLA pension increases affect Section 207-a retirement benefits
Wise v Jennings, 290 AD2d 702, 703, lv denied 97 NY2d 612

Section 207-a of the General Municipal Law provides that firefighters who retire after suffering a work-connected disability are to receive employer-paid supplements to their retirement allowance until their mandatory age of retirement.

The amount of the supplement: the difference between their retirement allowance and the amount that they would have earned as active firefighters had they not retired for disability, including adjustments for negotiated salary increases.

When the legislature provided for an automatic cost of living adjustment [COLA] to retirees, including those retired for accidental or service connected disability, the City of Albany advised its retirees receiving Section 207-a supplements that it would recompute and reduce their supplements to reflect the increase they received as a result of the COLA adjustment. William Wise, a retired City of Albany firefighter and President of the Albany Permanent Professional Firefighters Retirees' Association, sued the City contending that the City could not withholding any portion of the supplemental income payments as an adjustment for the amount that they receive as a COLA increase. A Supreme Court justice dismissed Wise's petition and he appealed.

Pointing out that General Municipal Law Section 207-a was intended only to affect the source, not the amount, of payments made to disabled firefighters, the Appellate Division affirmed the lower court's ruling.

The Appellate Division said that COLA's legislative history demonstrates that it constituted a clear policy directive to offset the negative effects of inflation experienced by public retirees whose pension benefits were eroded as a result of annual increases in the cost of living without commensurate increases in benefits. Accordingly, the court reasoned, "[a]s a clear pension supplement, we agree that since the payment of the adjustment is dependent upon the right to receive a disability retirement allowance, the COLA adjustment must be found to be generated through that income stream."

As Section 207-a only permits the employer to supplement the "difference between the amounts received under such allowance or pension and the amount of the firefighters' regular salary or wages [had he or she remained an active firefighter]," the deduction of an amount equal to the COLA adjustment from the firefighters' Section 207-a supplement was proper. This determination, said the court, is consistent with the underpinnings of Section 207-a, which is to ensure that permanently disabled firefighters receive an amount equal to that of active firefighters holding the same position and rank with only the income source and not the amount affected.

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