Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed

Former employee’s law suit alleging statements in the minutes of a board meeting were defamatory dismissed

A court clerk was terminated by the town justice. The next day the town justice appeared at a special meeting of the Town Board to discuss the clerk’s termination and to request approval to hire a replacement court clerk.

The former town clerk then sued the town justice and the Town alledging that defamatory statements concerning her work and qualifications were recorded in the minutes of the Town Board’s special meeting and the minutes, that were later approved, were posted on the Town's Web site.*

Although the Appellate Division held that Supreme Court erred in dismissing the slander cause of action filed by the former court clerk against the town justice as untimely,** it held that the lower court had correctly determined that all of the statements the former court clerk alleged to be defamatory were either [1] opinion; [2] not directed at former court clerk; or [3] needed extrinsic facts to make them defamatory.

Thus, concluded the court, Supreme Court “correctly determined that the statements were not defamatory as a matter of law” and dismissed the complaint.

* See Public Officers Law §106

** The Appellate Division observed that if the town justice was acting solely on his or her own behalf, the Town would not be liable for his or her actions and the CPLR §215[3]’s one-year statute of limitations would apply to the cause of action. In contrast, if the town justice was acting within the scope of his or her employment with the Town, the Town may be liable for his or her conduct and would thus be the real party in interest; and under those circumstances the provisions set out in General Municipal Law §50-i would control.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02546.htm

Some procedural defects that bar the vacating of the arbitrator’s award

Some procedural defects that bar the vacating of the arbitrator’s award
Beals v New York City Transit Authority, 2012 NY Slip Op 02784, Appellate Division, First Department

The Beals decision by the Appellate Division, First Department, sets out a number of procedural defects that defeated the employee’s efforts to vacate an adverse arbitration award.

First, said the Appellate Division, the arbitrator “properly declined” to apply the collective bargaining agreement's statute of limitations for filing disciplinary charges as, pursuant to its terms, the statute of limitations did not commence to run while an investigation of the conduct leading to the disciplinary charges against employee was under way. Further, said the court, “any error by the arbitrator in interpreting the facts or applying the law on this issue did not provide a basis for vacatur of the award.”

Other procedural defects noted by the Appellate Division barring granting the employee’s petition seeking to the vacate the award in this instance included:

1. An individual waives his or her claims that the arbitrator should have enforced his or her witness subpoenas by failing to seek a stay of the arbitration and a court ruling compelling compliance and by continuing with the arbitration;

2. An arbitrator's erroneous evidentiary rulings with may support vacatur only if the evidence would have been pertinent and material; and

3. The employee’s failure to cite any provision in the collective bargaining agreement to support his or her contention that the arbitrator exceeded a restriction on his or her power.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02784.htm

Failure to fully comply with the procedures required by the Commissioner’s regulations when filing a notice of petition is a fatal jurisdictional defect

Failure to fully comply with the procedures required by the Commissioner’s regulations when filing a notice of petition is a fatal jurisdictional defect

This ruling by the Commissioner of Education again illustrates the fact that the failure to strictly comply with the filing requirements set out in Commissioner’s regulation will preclude the Commissioner’s considering the merits of the petition or appeal. 

Petitioners had withdrawn one aspect of their appeal, conceding that it was moot.

The School District then asked the Commissioner to dismiss the “surviving” elements of their petition, which sought the removal of a member of the school board. The school board contended that these claims should be dismissed because the petitioners had failed to include the notice required by 8 NYCRR §277.1(b) in such cases in their petition.  

The Commissioner agreed, ruling that the application seeking the removal of a school board member “must be dismissed because the notice of petition is defective.”

Noting that the Commissioner’s regulations require that the notice accompanying a removal application must specifically advise a school officer that an application is being made for his or her removal from office (see 8 NYCRR §277.1[b]) the Commissioner ruled that the petitioners failed to give such notice and, instead, had used the notice prescribed under §275.11(a) for appeals brought pursuant to Education Law §310.

  

The bottom line: A notice of petition which fails to contain the language required by the Commissioner’s controlling regulation is fatally defective and does not secure jurisdiction over the intended respondent.

The Commissioner’s decision, Decision #16,346, is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume51/d16346.html

From the Office of New York State Comptroller Thomas P. DiNapoli

From the Office of New York State Comptroller Thomas P. DiNapoli
Audits and reports issued during the period April 9 - 15, 2012 

DiNapoli: Audit Reveals Alleged Procurement Improprieties at SUNY Downstate Medical Center

An audit spurred by anonymous tips revealed fake bids for construction contracts and other procurement problems at SUNY Downstate Medical Center, according to New York State Comptroller Thomas P. DiNapoli. Findings of the audit have been referred to the Joint Commission on Public Ethics.


NYSHIP Contractors Wasting Millions in Taxpayer Money

The New York State Health Insurance Program erroneously paid as much as $11 million for special items such as implants, drugs and blood and evaluation procedures that were not performed according to two audits released Wednesday by State Comptroller Thomas P. DiNapoli.


Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli announced this week the following audits have been issued: the Department of Health and the Office of Children and Family Services.


DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli this week announced his office completed the following audits: the Village of Amityviller; the Village of Bloomingburg; the Carl Place Garbage District; the Town of Copake; the Town of Galway; and, the Massapequa Fire District.

Use of hearsay evidence in an administrative disciplinary action

Use of hearsay evidence in an administrative disciplinary action

Does hearsay evidence constitute “adequate evidence” for the purposes of sustaining disciplinary charges? In this action the Appellate Division found that it did.

Hearsay evidence, said the court, can be the basis of an administrative determination and, “if sufficiently probative, it alone may constitute substantial evidence," citing Matter of Café La China Corp. v New York State Liq. Auth., 43 AD3d 280, quoting Matter of Gray v Adduci, 73 NY2d 741. According, said the court, a hearing officer could base his or her finding the individual guilty of the charges on such hearsay evidence.

The standard applied by the Appellate Division: Education Law § 3020-a (5) provides that a court's review of an application to vacate or modify the decision of a hearing officer is limited to the grounds set forth in CPLR 7511, the provision pertaining to review of arbitrators' awards. It is now established, however, that, because §3020-a hearings are compulsory, the hearing officer's "`determination must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78.'"

However, in this instance, although the hearing officer’s finding that the employee was guilty, the Appellate Division ruled that the penalty imposed, termination, had to be vacated and the matter remanded to a different hearing officer for the imposition of the penalty to be imposed “on the basis of the administrative record of the hearing.”

The court said that “It is a fundamental principle of due process that ‘`no person may lose substantial rights because of wrongdoing shown by the evidence but not charged, [and where that principle is violated,] prejudice will be presumed.`"

Accordingly, said the Appellate Division, the Hearing Officer's decision imposing the penalty of termination cannot stand, because it appears to be based, in significant part, on evidence of wrongdoing that was not charged.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_50606.htm