ARTIFICIAL INTELLIGENCE [AI] IS NOT USED, IN WHOLE OR IN PART, IN PREPARING NYPPL SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS

April 27, 2012

Court’s review of an administrative disciplinary action is limited to determining if the decision is supported by substantial evidence


Court’s review of an administrative disciplinary action is limited to determining if the decision is supported by substantial evidence
 
The Commissioner of the Dutchess County Department of Social Services adopted the finding and recommendation of a hearing officer as to the employee’s being guilty of a certain charge of misconduct after a §75 disciplinary hearing and terminated the individual's employment.

The Appellate Division confirmed the Commissioner’s determination, denying the former employee’s petition “on the merits, with costs.”

The court explained that a court's review of administrative determinations in employee disciplinary cases made after a hearing under Civil Service Law §75 is limited to a consideration of whether the determination was supported by substantial evidence in the record of the hearing. In this instance, said the court, there was substantial evidence in the record to support the determination that the employee was guilty of misconduct

Further, the court found that the penalty of termination “was not so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02882.htm


April 26, 2012

A reviewing body may not ignore evidence in the record in making its determination


A reviewing body may not ignore evidence in the record in making its determination

The Appellate Division granted the disability retirement applicant’s petition to annul the decision denying his request to amend his application for accidental disability retirement (ADR) benefits and remanded the matter with the direction that individual be permitted to amend his application to include a heart-related disability.

The court said the Retirement Board's determination was arbitrary and capricious and an abuse of discretion as at the time it denied application for ADR benefits based on an orthopedic condition, a member of the Board was aware that the applicant had suffered a heart attack, was incapacitated, and might wish to amend his application to include a claim under the Heart Bill [see Retirement and Social Security Law §363-a.].

The Appellate Division also noted that the record showed that the applicant’s heart condition predated his retirement, but was not diagnosed until after he retired.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02945.htm

April 25, 2012

A party’s failure to have an arbitration award confirmed is not a ground for vacating the award


A party’s failure to have an arbitration award confirmed is not a ground for vacating the award 
The Appellate Division succinctly ruled that the application to vacate the arbitration award filed pursuant to Article 75 of the Civil Practice Law and Rules was made more than 90 days after the award was delivered to the individual and is therefore untimely.

The court also noted that although CPLR Article 75 provides a mechanism by which a party may obtain judicial confirmation of an arbitration award, the failure to have an award confirmed is not a ground for vacating the award, citing CPLR §§7510 and 7511[b][1].

Addressing another claim by the individual – that the arbitration award should be vacated under CPLR §751l(b)(1)(iv), “failure to follow the procedure,” the Appellate Division explained that subdivision (iv) address vacating the award because of a "failure to follow the procedure” set out in Article 75. 

However, said the court, if a party applying to vacate the award pursuant to subdivision (iv) continued with the arbitration with notice of the defect and without objection, the award may not be vacated for that reason.

In this instance, said the court, the party seeking to vacate the award under color of §751l(b)(1)(iv) participated in the arbitration without objection as to the procedure employed and thus the award could not be vacated as otherwise permitted by subdivision (iv).

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2012/2012_02949.htm

April 24, 2012

State of Maryland bill prohibiting employers from requiring job applicants to reveal Internet passwords pending approval by the Governor


State of Maryland bill prohibiting employers from requiring job applicants to reveal Internet passwords pending approval by the Governor

The Maryland legislature's has passed a bill [Senate 433; House 964] prohibiting, among other things, employers from 1) requesting or requiring a job applicant to disclose user names or passwords for a personal electronic service; 2) refusing to hire an applicant for not providing access to such information; and 3) terminating or disciplining an employee for refusing to provide this information.

The provision is pending action by the Governor and if signed into law would take effect October 1, 2012.

The text of the bill is posted on the Internet at:
http://mlis.state.md.us/2012rs/bills/sb/sb0433t.pdf

The employee’s refusal to participate in a disciplinary hearing does not mean that the employee was denied administrative due process


The employee’s refusal to participate in a disciplinary hearing does not mean that the employee was denied administrative due process  

The Appellate Division rejected the employee's arguments seeking to vacate or modify a disciplinary action determination on grounds that included allegations that the hearing officer was biased and exceeded her authority in reaching a determination without affording the employee administrative due process.

The court said that the employee’s allegations were refuted by the record holding that the individual “was afforded every opportunity to present a defense and she acknowledges intentionally attempting to stonewall the proceedings by not appearing for and/or not participating on many of the hearing dates.”

Holding that the award was made in accord with due process, was supported by adequate evidence, and was rational and was not arbitrary and capricious, the Appellate Division noted that the employee failed to meet her burden of showing, by clear and convincing evidence, that the hearing officer was partial in her consideration of the evidence and ultimate determination.

Concluding that the penalty imposed, six months suspension without pay, was neither shocking to the court’s sense of fairness nor disproportionate to the multiple offenses for which she was found guilty, the court dismissed the employee’s petition.

The decision is posted on the Internet at:

 

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the information and, or, decisions summarized in NYPPL. For example, New York State Department of Civil Service's Advisory Memorandum 24-08 reflects changes required as the result of certain amendments to §72 of the New York State Civil Service Law to take effect January 1, 2025 [See Chapter 306 of the Laws of 2024]. Advisory Memorandum 24-08 in PDF format is posted on the Internet at https://www.cs.ny.gov/ssd/pdf/AM24-08Combined.pdf. Accordingly, the information and case summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
NYPPL Blogger Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
New York Public Personnel Law. Email: publications@nycap.rr.com