Consideration of ex parte information in a disciplinary action constitutes a denial of due process

Consideration of ex parte information  in a disciplinary action constitutes a denial of due process

Faga v Board of Educ. of Harrison Cent. School Dist., 2008 NY Slip Op 09078, Decided on November 18, 2008, Appellate Division, Second Department

An employee, terminated from his position with the Harrison Central School District, challenged the District’s action, contending that his due process rights were violated the Board of Education had “received ex parte information about the charges from the District's attorneys and the Superintendent of Schools.”

The individual also alleged that his right to due process was violated because the Superintendent submitted a statement to members of the Board before the charges were brought that he believed that charges could be sustained.

The Appellate Division found that the District established that the Board did not prejudge the matter nor did it rely on any improperly-obtained information in making its determination to dismiss the employee from his position.

In contrast, where the court finds that the rights of the accused were prejudiced because of some activity of the appointing authority, it will typically vacate the determination.

For example, in Ernst v Saratoga County, 234 AD2d 764, the Appellate Division annulled the dismissal of an individual found guilty of disciplinary charges because the chairman of the county Board of Supervisors - 
(a) met with the county’s attorneys “to discuss the pending investigation;” (b) met with the employees involved to, as the chairman phrased it, “relieve their fears;” (c) signed the notice of the charges against the individual, (d) voted to bring charges against the employee; (e) served as a witness at the disciplinary hearing; and (f) voted to accept a hearing officer’s findings of guilt and impose the recommended penalty. 


These actions, said the court, denied the employee a fair and impartial tribunal.

The Faga decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09078.htm

Placement of a candidates name on an eligible list does not give the individual a right to an appointment

Placement of a candidates name on an eligible list does not give the individual a right to an appointment
Tardif v Town of Southold, 56 AD3d 755

John J. Tardif filed a notice of claim alleging that the Town of Southold, and the Town's police department, did not appoint him as a police officer even though he had "the best qualifications" and "the number one test score" on the examination to become a police officer because of his age.*

The Town moved for summary judgment, contending it did not discriminate against Tardif because of his age but elected not to appoint him “because he submitted deceptive responses in his application to become a police officer.”

In opposing the Town’s motion, Tardif did not make any argument in support of his age discrimination claim. He, instead, contended that the Town “had violated his constitutional rights to due process and equal protection in other ways.” The Appellate Division, however, ruled that Tardif failed to raise any triable issue of fact with regard to any of his constitutional claim.

The court pointed out that Tardif does not have a protectable property interest in a position with the Town's police department that would entitle him to maintain a due process claim. In this regard, said the court, “An individual does not have a "legally protectable interest" in an appointment to the position of police officer merely because he or she achieved a sufficient score on the examination to be placed on an eligibility list,” citing Andriola v Ortiz, 82 NY2d 320 and Cassidy v Municipal Civil Service Commission of City of New Rochelle, 37 NY2d 526.

Specifically, the Appellate Division commented that "'An appointing authority has wide discretion in determining the fitness of candidates . . . This discretion is particularly broad in the hiring of law enforcement officers, to whom high standards may be applied . . . As long as the administrative determination is not irrational or arbitrary, this Court will not interfere with it."

As Tardif did not have a property interest in an appointment as a police officer and failed to raise a triable issue of fact as to the deprivation of a protected liberty interest, the Appellate Division held that the Supreme Court had properly determined that he had failed to raise a triable issue of fact as to whether he was deprived of his constitutional right to due process.

Finally, said the court, Tardif did not establish any right to a “name-clearing hearing” with respect to his rejection for appointment as a police officer by the Town.

*Section 54 of the Civil Service Law sets out standards for establishing age requirement for appointment to positions in the public service in general while Section 58.1(a) sets out age requirements for police officers in particular.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09381.htm

A provision in a town code that is intended to supercede a statutory provision must comply with the statutory method set by law to accomplish that end

A provision in a town code that is intended to supercede a statutory provision must comply with the statutory method set by law to accomplish that end
Matter of Guzdek v Mohan, 56 AD3d 1206

The Amherst Town Board adopted a resolution providing for the appointment of three officers to fill vacancies in the Town’s Police Department.

When Satish Mohan, the Town Supervisor, declined to comply with the Board’s action, Edward W. Guzdek, Jr., the President of the Amherst Police Club, sued in an effort to obtain a court order directing Mohan to fill the vacancies.

Mohan argued that, pursuant to Section 4-10 of the Town of Amherst’s Code, he had the authority to appoint officers to the Town Police Department.

The Supreme Court disagreed, holding that the Code was inconsistent with Town Law §150. The court said that Town Law §150 provides that the appointment of police officers "is a legislative function within the exclusive jurisdiction of the town board," citing a 1980 opinion of the Attorney General [1980 Informal Opinion 249].

The Appellate Division affirmed the Supreme Court’s ruling, holding that although the Amherst Town Board may delegate its authority to appoint police officers to the Town Supervisor by designating the Supervisor to serve as police commissioner as authorized by Town Law §150.2, it had not done so. Nor, said the court, does Section 4-10 of the Code effectively supersede the provisions of Town Law §150 with respect to the Town Board's authority to make appointments to the Town Police Department.

Section 150.1 of the Town Law provides, in pertinent part that “The town board of any town may establish a police department and appoint a chief of police and such officers and patrolmen as may be needed and fix their compensation.”

The Appellate Division concluded that Section 4-10 did not "substantial[ly] adhere to the statutory methods to evidence a legislative intent to … supersede those provisions of [Town Law §150] sought to be … superseded” and dismissed Mohan’s appeal.

On this point, Section 150.2, in pertinent part, provides that “The town board may also by resolution designate the supervisor to serve as police commissioner, and when so designated, such supervisor shall have all the powers of and perform the duties of such board of police commissioners.” In this instance the court, in effect, ruled that that no such resolution had been adopted and that Section 4-10 of the Town Code was not sufficient to demonstrate such a legislative intent.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_08875.htm

A public school district is not an "education corporation or association" within the meaning of the State’s Human Rights Law §296(4)

A public school district is not an “education corporation or association” within the meaning of the State’s Human Rights Law §296(4)

North Syracuse Cent. School Dist. v New York State Div. of Human Rights, 2012 NY Slip Op 04668, Court of Appeals

Is a public school district an "education corporation or association" within the meaning of  Executive Law §296(4)? If it is an “education corporation or association,” then the New York State Division of Human Rights (SDHR) has jurisdiction to investigate complaints filed against public school districts under that provision. Otherwise it does not. The Court of Appeals decided “not.”

The case arose when a number of public school students filed complaints with the SDHR claiming that their respective school districts engaged in an "unlawful discriminatory practice" barred by §296(4) of the Executive Law, the "Human Rights Law," by permitting their harassment on the basis of race and/or disability.

The school districts involved filed Article 78 petitions seeking a writ of prohibition* barring the SDHR from investigating the complaints on the ground that a public school district is not an "education corporation or association" as contemplated by Executive Law §296(4).**

The Appellate Division concluded that as a school district is a "municipal corporation" and therefore a "public corporation" under the General Construction Law, it could not be an "education corporation" within the meaning of Executive Law §296(4)]. However, the Court of Appeals, noting that this “approach is a legitimate one,” decided that there was some problem in SDHR's relying on the General Construction Law because the provision at issue in the Executive Law was enacted 15 years prior to General Construction Law §§65 and 66.

The Court, however, said that it did not need to address whether the General Construction Law is applicable here as there was an independent basis, supported by legislative history of Tax Law §4(6), for its conclusion that a public school district is not an "education corporation or association."

The Court of Appeals said that the legislative history surrounding the enactment of Tax Law §4(6), in concert with the circumstances under which the Legislature transferred the term "education corporation or association" from Tax Law §4(6) to Executive Law §296(4), “bespeaks the Legislature's intention that the term was to have the same meaning in the Executive Law as it did in former Tax Law §4(6).” Moreover, said the court, the use of the phrase "non-sectarian" was plainly included in Executive Law  296(4) to carve out an exception for parochial schools, while reserving for the SDHR the jurisdiction to investigate §296(4) complaints against private, non-sectarian education corporations or associations.

The Court then noted that “Public school districts are different from private, non-sectarian institutions and fall outside the purview of the SDHR's jurisdiction relative to §296(4) claims … [as] a public school district receives tax-exempt status by virtue of the fact that it is public, so there would never be any need for it to 'hold itself out to the public to be non-sectarian' as, say, a private school."

The fact that the SDHR did not have jurisdiction to consider the students’ complaints did not mean that they did not have a forum in which to seek relief. The Court said that “In addition to potential remedies under federal law, public school students may file a complaint with the Commissioner of Education (see Education Law §310).”

Further, said the court, in 2010, the Legislature enacted the "Dignity for All Students Act," establishing article 2 of the Education Law, designed "to afford all [public school] students an environment free of any harassment that substantially interferes with their education, regardless of the basis of the harassment, and free of discrimination based on actual or perceived race, color, weight, national origin, ethnic group, religion, disability, sexual orientation, gender, or sex," commenting that while SDHR lauded this legislation by noting that it "addresses a myriad of harassment and discrimination issues that arise within a school context and its goals comport with the goals of the [Human Rights Law]," noticeably absent from SDHR’s correspondence was any indication that the Division had previously handled similar claims of that nature arising in public schools.***

The Court’s conclusion: Because a public school district is not an "education corporation or association" under Executive Law §296(4), the SDHR lacked jurisdiction to investigate the complaints filed by the students in these appeals.

* A writ of prohibition, one of the ancient writs under English Common Law, is an order issued by a higher tribunal barring a lower tribunal prohibiting the litigation from going forward because the lower tribunal lacks jurisdiction to consider the matter before it.

**Executive Law § 296 (4) provides, in relevant part, that "[i]t shall be an unlawful discriminatory practice for an education corporation or association which holds itself out to the public to be non-sectarian and exempt from taxation pursuant to … [RPTL Article 4] … to permit the harassment of any student or applicant, by reason of his race … [or] disability …."

***The Court of Appeals referred to a letter from New York State Div. of Human Rights, dated July 22, 2010, and included in the Bill Jacket for Chapter 482 of the Laws of 2010, in support of this statement.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_04668.htm

A public officer must show that alleged false statements concerning him or her were made with actual malice to recover damages for defamation

A public officer must show that alleged false statements concerning him or her were made with actual malice to recover damages for defamation
Watson v Jamestown, 56 AD3d 1289

Michael J. Watson, a police officer, sued a number of police department officials, alleging, among other alleged wrongdoing, defamation.

Supreme Court granted summary judgment dismissing Watson’s complaints. The Appellate Division affirmed the lower court’s action.

Addressing Watson’s claim of defamation, the Appellate Division noted that "A public official [as a police officer, Watson was a public officer] may not recover damages for defamation unless the official proves that the offending false statement was made with actual malice -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not," citing Freeman v Johnston, 84 NY2d 52.

In this instance, said the court, the officials being sued established “their entitlement to judgment as a matter of law with respect to that cause of action by demonstrating that the remarks that allegedly defamed [Watson] were true with the exception of one remark that was a misstatement but was not made with malice.”

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_09231.htm