15-day suspension recommended after worker found guilty of using a department vehicle for an unauthorized purpose

15-day suspension recommended after worker found guilty of using a department vehicle for an unauthorized purpose
Dep't of Sanitation v. Pulliam, OATH Index No. 1976/08

A sanitation worker was found to have disobeyed a supervisor's order and used a Department truck for an unauthorized purpose when he drove to a pay phone to call the police after allegedly being assaulted by a civilian on his route. Pulliam’s supervisor, after checking to make sure the respondent was not hurt, had ordered him to continue on his route while he called the central office to find out how to proceed. Administrative Law Judge Julio Rodriguez recommended a suspension of 15 days. He dismissed a second charge of unauthorized absence where the respondent claimed that he had gone on a bathroom break, and prior cases indicated that workers are vested with some discretion as to when and where to use the bathroom.

[For the full text of the decision, click on the title of the decision.]

 

The government must honor its promise not to disclose the names of individuals asked to disclose certain information – at least for the present

The government must honor its promise not to disclose the names of individuals asked to disclose certain information – at least for the present
Harbatkin v New York City Dept. of Records & Info. Servs., 2012 NY Slip Op 04277, Court of Appeals

This action arose as the result of the City of New York providing redacted records in response to a Freedom of Information request for records resulting from the New York City Board of Education’s investigation of a large number of teachers and other employees suspected of being present or former members of the Communist Party in the1950's. These investigations included interviews with many individuals who, under the promise of confidentiality, were asked to provide the names of those who had been in the Communist Party with them.*

An historian of the period sought disclosure of unredacted transcripts of these interviews under the Freedom of Information Law (FOIL).

The Court of Appeals held that the historian was “entitled to everything in the transcripts except material that would identify informants who were promised confidentiality.”

The Court explained that “today, more than half a century after the interviews took place, the disclosure of the deleted information would not be an unwarranted invasion of personal privacy” noting that this was not always true as “at the time of the investigations, and for some years thereafter, public knowledge that people were named as present or former Communists would have subjected them to enormous embarrassment, or worse.” In any event, said the court, any such embarrassment would be much diminished today because “the activity of which they were accused took place so long ago, and because the label "Communist" carries far less emotional power than it did in the 1950s.”

Balancing these “diminished claims of privacy” against the claims of history, the court said that “The story of the Anti-Communist Investigations, like any other that is a significant part of our past, should be told as fully and as accurately as possible, and historians are better equipped to do so when they can work from uncensored records.”

There was a limitation on providing such records "unredacted," however. The Court ruled that with respect to the disclosure of the names of the interviewees who were promised that "no one would find out they were being interviewed," that promise was required to be honored.

The Court of Appeals said that it was “unacceptable for the government to break that promise, even after all these years,” commenting that “[p]erhaps there will be a time when the promise made to [such individuals], and to others similarly situated, is so ancient that its enforcement would be pointless, but that time is not yet.”

* NYPPL comments: Education Law §§3021 [adopted in 1949 and sometimes referred to as the Feinberg Law] and 3022, respectively provide for "loyalty oaths" and for the “elimination of subversive persons from the public school system”]. Educators involved in “Subversive activities” were “disqualified” for employment. In 1967 these provisions were ruled unconstitutional by the U.S. Supreme Court [Keyishian v. Board of Regents, 514 U.S. 673] on the grounds that they were [1] unconstitutionally vague and [2] violative of the individual's First Amendment rights of free speech and association. 

As to positions in the Classified Service, the Civil Service Law was amended by adding §105, the so-called “Anti-red Law,” which was challenged in Keyishian by co-plaintiff George E. Starbuck, an employee in the Classified Service.

The Supreme Court held that "Civil Service Law §105, subd.1(c), and Education Law §3022, subd. 2, are invalid insofar as they proscribe mere knowing membership without any showing of specific intent to further the unlawful aims of the Communist Party of the United States or of the State of New York."

The Keyishian decision is posted on the Internet at: http://scholar.google.com/scholar_case?case=15934266528750676067&q=keyishian+v.+board+of+regents&hl=en&as_sdt=2,33&as_vis=1

The Harbatkin decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04277.htm

An administrative decision denying an application for accidental disability retirement vacated because of a lack of evidence in the record supporting the determination

An administrative decision denying an application for accidental disability retirement vacated because of a lack of evidence in the record supporting the determination

Baranowski v Kelly, 2012 NY Slip Op 04208, Appellate Division, First Department

A New York City police officer filed an Article 78 petition seeking to vacate the denial of his application for accidental disability retirement based on a work-related incident involving his carrying an individual from a burning building.

The Medical Board had found that the officer suffered from a disabling congenital condition that prevented him from performing his duties as a police officer and recommended he be awarded ordinary disability retirement benefits rather than an accidental disability retirement allowance.

The officer, on the other hand, had contended that he was entitled an accidental disability retirement allowance because his congenital condition became permanently aggravated as a result of his rescuing the individual. The Appellate Division noted that it had remanded the matter to the Medical Board on earlier two occasions, asking the Board for evidence supporting its conclusion that officer's disability was not service-related.

However, said the Appellate Division, “the Medical Board's finding that [police officer’s] congenital condition was only temporarily exacerbated by the incident was based solely on conjecture” as the Board failed to cite anything in the record indicating that the condition improved before becoming permanently disabling.

Accordingly, it sustained Supreme Court’s ruling vacating the denial of the police officer’s application for accidental disability retirement benefits.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04208.htm

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Application of the federal Hatch Act barring partisan political activities by certain State and municipal employees

Application of the federal Hatch Act barring partisan political activities by certain State and municipal employees
Juan Molina-Crespo v United States Merit Systems Protection Board, 547 F.3d 651

Juan Molina-Crespo served as the Executive Director of the Lorain County Children and Families First Council (“LCCFFC”), an Ohio government agency that is financed in part by the federal government. The federal government provides funds to Ohio agencies, which are then passed through to the LCCFFC. The United States Merit Systems Protection Board [Board] determined that Molina-Crespo violated the federal Hatch Act [5 U.S.C. § 1502(a)(3)], which regulates the political activity of certain state employees who administer federal funds. The Board ruled that Molina-Crespo’s actions in violation of the Hatch Act warranted his removal.

The Circuit Court of Appeals said: “It is undisputed that, as Director, Molina-Crespo was subject to the Hatch Act because he was “an individual employed by a State . . . agency whose principal employment is in connection with an activity which is financed in whole or in part” by the federal government.”

Molina-Crespo’s difficulties arose when he declared his candidacy in a primary election for the office of Lorain County Commissioner. The United States Office for Special Counsel (“OSC”), the federal agency charged with administering the Hatch Act, advised him that his candidacy violated § 1502(a)(3) of the Act and that he would either have to resign his position at the LCCFFC or withdraw his candidacy in order to comply with the Act’s requirements.

Molina-Crespo, however, told the OSC that he did not consider himself a “covered employee” subject to the Act because the federal funding the LCCFFC received first passed through various state agencies.

Although Molina-Crespo’s candidacy for Lorain County Commissioner ended when he failed to win the Primary, the OSC filed a formal complaint with the MSPB alleging that Molina-Crespo violated the Act by being a candidate for elective office.

Ultimately the Board ordered the LCCFFC to remove Molina-Crespo from his position as Director within thirty days and warned that, if the LCCFFC failed to dismiss Molina, it would lose federal funds equal to two years of Molina-Crespo’s pay. Molina-Crespo then resigned from his position and sued, challenging the constitutionality of the Hatch Act together with allegations that the Act violated his First Amendment rights and constitutional guarantees of due process and equal protection.

The court noted the Supreme Court has addressed the constitutionality of the Hatch Act’s restrictions on federal employees’ political activities, and has concluded that the Act’s prohibitions are constitutional, citing United Pub. Workers v. Mitchell, 330 U.S. 75 and in Carver v. Dennis, 104 F.3d 847, and that the Sixth Circuit had earlier concluded that there is no fundamental right to be a candidate for political office. Rejecting Molina-Crespo’s efforts to distinguish between federal and state employees with respect to the application the Hatch Act, the Circuit Court of Appeals ruled that a state employee’s participation in political activities violated the Hatch Act and warranted his or her removal from his or her state position.

Similarly, the Circuit Court of Appeals rejected Molina-Crespo contention that the Hatch Act violates the Equal Protection Clause.

Finally, the court held that the Board did not abuse its discretion in concluding that Molina-Crespo’s violation of the Hatch Act justified his removal.

A relevant decision, Matter of Blackburne, 211 AD2d 13, [motion to appeal denied, 86 N.Y.2d 705], holds that an individual otherwise subject to a “due process disciplinary hearing” such as that provided by a Taylor Law agreement or by State Law, may be summarily removed from his or her position on the authority of a Board determination. The Blackburne decision, which addressed the right of an individual to file a Taylor Law contract disciplinary grievance after the Board directed his removal from his position for violating the Hatch Act, held that arbitration would offend public policy as it "would significantly lessen the efficacy of the Hatch Act and frustrate its purpose and scope."

The full text of the Molina decision is posted on the Internet at:

http://www.ca6.uscourts.gov/opinions.pdf/08a0419p-06.pdf

N.B. As earlier noted, officers and employees in the executive branch of state and local government whose principal employment involves an activity financed in whole or in part by federal loans or grants are subject to the Hatch Act. However, certain public officers such as the governor, the mayor of a city, and the elected head of an executive department not in the classified service are exempted, as are individuals employed by educational or research institutions which are supported in whole or in part by the State or a political subdivision of the State.

Another key element of the Hatch Act provides that while public officers and employees may be members of a political party and even serve as officers in that party, they cannot use their official authority or influence for the purpose of interfering with or affecting the results of such elections or the nominations of candidates for those elective offices. Also direct or indirect coercion of public workers to make a loan or to contribute anything of value to an individual or a party or other organization for political purposes is prohibited.

Union presence during an interrogation of a unit member by the appointing authority

Union presence during an interrogation of a unit member by the appointing authority

Seabrook v City of New York, 57 AD3d 232

Norman Seabrook, individually and as President of the Correction Officers' Benevolent Association, challenged the policy of not allowing an employee to consult with a union representative after a question is posed and before an answer must be given, at an interrogation conducted pursuant to [New York City] Mayoral Executive Order No. 16.

Mayoral Executive Order 16 requires city employees to report allegations of corruption to City's Department of Investigation.

The exclusion of union representatives, said the court, "ensures that the charges will be probed confidentially and professionally by investigators independent of the employee's own agency and superiors."

Holding that this policy “was reasonably designed to promote truthful responses by discouraging coaching,” the Appellate Division concluded that such action did not deprive the employee of his right to union representation under Civil Service Law §75(2) or National Labor Relations Bd. v J. Weingarten, Inc. (420 US 251 [1975]).

A similar issue was addressed by the Appellate division in City of Rochester v Public Employment Relations Board, 15 AD3d 922, Leave to appeal denied, 4 N.Y.3d 710. In Rochester the Appellate Division, Fourth Department, held that PERB abused its discretion when it decided that the City of Rochester committed an improper employer practice in violation of Civil Service Law §209-a(1)(a) (The Taylor Law) by denying city police officers, who were union members, access to union representation during a criminal investigation interview.

The Fourth Department said that "PERB abused its discretion in expanding a public employee's rights to include the right to have a union representative present during a criminal investigation" as New York State "has a strong public policy that prohibits union interference with criminal investigations."

The full text of the Seabrook decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09471.htm

The text of Executive Order 16 is posted on the Internet at:

http://www.nyc.gov/html/doi/html/whistblr-eo16.html