Destruction or loss of evidence

Destruction or loss of evidence

Dep't of Correction v. Archibald, OATH Index Nos. 2214/08, 2215/08 & 2216/08

OATH Administrative Law Judge John Spooner rejected a correction officer's motion to dismiss disciplinary charges filed againsthim based upon the spoliation of certain logbooks sought as evidence. Explaining that under New York law, sanctions for spoliation of evidence are appropriate where a litigant intentionally or negligently disposes of crucial evidence before the adversary has an opportunity to inspect them, the ALJ concluded that the officer failed to establish how the logbooks disappeared or how their disappearance would prejudice his defense.

 

Courts will defer to an administrative decision made by an agency pursuant to its authority if it acted rationally within its area of expertise

Courts will defer to an administrative decision made by an agency pursuant to its authority if it acted rationally within its area of expertise

Roberts v Gavin, 2012 NY Slip Op 05239, Appellate Division, First Department

Lillian Roberts, Executive Director of District Council 37, AFSCME, AFL-CIO [DC 37], petitioned Supreme Court seeking an order annulling the Personnel Review Board of the New York City Health and Hospitals Corporation [PRB] determination the Health and Hospitals Corporation [HHC] decision to restructure its layoff units in response to a recent financial crisis.

Supreme Court dismissed DC 37’s petition; the Appellate Division affirmed the lower court’s ruling.

HHC, which initially had a single corporation-wide layoff unit that included all of its facilities throughout New York City, subsequently created smaller layoff units based on individual hospitals and health care facilities within HHC. In 2009, in response to financial pressures faced by the City, HHC again restructured its layoff units by creating eighteen additional, smaller, layoff units within the existing hospital and medical centers that had previously been designated as the layoff units. HHC then announced plans to either close or reduce staff at the clinics and programs designated as the new layoff unit, which would affect about 87 HHC employees.

After noting that Supreme Court “should not have dismissed the proceeding as time-barred,” the Appellate Division considered the merits of DC 37’s petition.

DC 37’s contended that PRB’s action was arbitrary and capricious. 

The Appellate Division said that an administrative body’s act or omission is arbitrary if it "is without sound basis in reason and is generally taken without regard to the facts," citing Pell v Board of Educ. of Union Free School Dist., 34 NY2d 222. In contrast, said the court, “Where a rational basis exists for an agency's action, a court may not substitute its judgment for that of the agency, and the agency's determination, acting pursuant to legal authority and within its area of expertise, is entitled to deference.”

The Appellate Division said that DC 37 failed to show that PRB's upholding HHC's creation of additional layoff units was arbitrary or capricious, or affected by an error of law, pointing out that HHC acted consistent with its past practice of designating hospital programs as layoff units.

Citing the relevant HHC Rules, which, in pertinent part, sets out HHC’s the authority to amend its own rules and regulations and which, in particular, provides that HHC "may by rule designate an individual facility or division of any facility of [HHC] as separate units for layoff or demotion under this rule," the court concluded that the HHC Rules explicitly grant HHC the discretion to designate programs and clinics of HHC facilities as layoff units. 

At the hearing, HHC explained that the closing of the clinic and hospital-based programs was necessary to provide continuity of patient care in light of the budget deficit crisis facing the City. And in its decision, PRB found that HHC's actions were predicated on budgetary deficits that required closure and/or consolidation of programs and clinics in order to minimize the impact on patient care. PRB's decision was consistent with its previous precedent that "a presumption of regularity exists in the establishment of separate layoff units, until it is demonstrated that the layoffs were not done in accordance with a rational plan" (PRB Decision No. 682 [May 27, 1992] [emphasis in original]).

Noting that "A public employer may abolish civil service positions for the purpose of economy or efficiency," the court rejected DC 37’s claim that the creation of the new layoff units violated the seniority and displacement rights of certain employees, commenting  “although some longtime employees may lose their jobs, and newer employees may not,” in the absence of any nonconclusory showing of bad faith, it declined to disturb HHC's determination establishing the additional layoff unit.

Recognizing that there may have been a different way for HHC to structure its layoff plan, the Appellate Division said that it could not say that the agency acted in an arbitrary or capricious manner as "a court's opinion that a particular outcome is not fair or is not in the interests of justice is not sufficient to overcome the deference to be afforded an agency acting rationally within its area of expertise" and declined to substitute its judgment as to how HHC “should implement personnel decisions when determining how best to provide health care to the people of New York City” as to do so “would be an unwarranted intrusion into the managerial prerogative of HHC, which acted within its rule-making authority.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_05239.htm

Disqualifying an individual who has intentionally made a false statement of any material fact in his or her application for public employment

Disqualifying an individual who has intentionally made a false statement of any material fact in his or her application for public employment

United States v. Xavier Alvarez, USSC, Docket #11-310

Civil Service Law §50.4, in pertinent part, provides that “The state civil service department and municipal commissions may refuse to examine an applicant, or after examination to certify an eligible …

“(f) who has intentionally made a false statement of any material fact in his [or her] application; or

“(g) who has practiced, or attempted to practice, any deception or fraud in his [or her] application, in his examination, or in securing his [or her] eligibility or appointment….”

Are these provisions still valid in view of the Supreme Court's ruling in United States v Alverez concerning false speech that is protected by the First Amendment?

In a word, yes! 

In holding the Stolen Valor Act, 18 U.S.C. §704(b) “facially invalid under the Free Speech Clause of the First Amendment,” Justice Kennedy, writing for the majority, explained: “Permitting the government to decree [Alvarez's false claim that he had been awarded the Congressional Medal of Honor] to be a criminal offense, whether shouted from the rooftops or made in a barely audible whisper, would endorse govern­ment authority to compile a list of subjects about which false statements are punishable. *

That governmental power, said the majority, "has no clear limiting principle. Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth. [See G. Orwell, Nineteen Eighty-Four (1949) (Centennial ed. 2003)]. Were this law to be sus­tained, there could be an endless list of subjects the Na­tional Government or the States could single out."

In contrast, Justice Kennedy pointed out that “Where false claims are made to effect a fraud or secure moneys or other valuable considerations, say offers of employment, it is well established that the Government may restrict speech without affronting the First Amendment,” citing Virginia Bd. of Pharmacy, 425 U. S., at 771** [emphasis supplied].

Thus it seems clear that the State Civil Service Department or a municipal civil service commission may lawfully disqualify an individual for public employment pursuant to Civil Service Law §50.4(f) and, or, §50.4(g), consistent with the due process provisions available to the applicant or employee.***.

* Justice Kennedy noted that “The statements [made by Alvarez] do not seem to have been made to secure employment or financial benefits or admission to privileges reserved for those who had earned the Medal.”

** In Virginia the Supreme Court held that “fraudulent speech generally falls outside the protections of the First Amendment.”

*** §50.4 provides that “ No person shall be disqualified pursuant to this subdivision unless he [or she] has been given a written statement of the reasons therefor and afforded an opportunity to make an explanation and to submit facts in opposition to such disqualification.

The Alvarez decision is posted on the Internet at:

http://www.supremecourt.gov/opinions/11pdf/11-210d4e9.pdf

A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty

A police force is a semi-military organization and the appointing authority has “great leeway” is determining an appropriate disciplinary penalty

Smeraldo v Rater, 55 AD3d 1298

Timothy J. Smeraldo brought an Article 78 proceeding challenging the penalty of termination of his employment with the Jamestown Police Department after he was found guilty of conduct that was disrespectful of a superior officer. Smeraldo contended that the penalty of termination is so disproportionate to the offense as to be shocking to one's sense of fairness. In addition, Smeraldo alleged that the Hearing Officer improperly relied upon facts that were not in evidence.

The Appellate Division rejected Smeraldo’s claim that penalty imposed was “shocking to one’s sense of fairness. The court said that it is well established that courts must uphold the disciplinary penalty imposed by an appointing authority unless, as a law, it is an abuse of discretion, citing Kelly v Safir, 96 NY2d 32.

The Appellate Division said that "A police force is a quasi-military organization demanding strict discipline" and "great leeway” must be accorded to “determinations concerning the appropriate punishment, for it is the [Chief of Police] . . . who is accountable to the public for the integrity of the Department."

In this instance the Hearing Officer found that Smeraldo had made a remark in front of several other officers that was disrespectful of a superior officer. Further, said the court, “the record establishes that [Smeraldo] has a prior disciplinary record, including a 30-day suspension and a demotion in rank that occurred less than one year prior to the present offense. In addition, the decision reports that Smeraldo that settlement agreement with the Department for the charge resulting in that suspension and demotion, Smeraldo expressly stated that "he will endeavor not to violate any other Department policy in the future" and that there was evidence at the hearing that he had previously been counseled on the issue of making inappropriate comments, including comments that demonstrated insubordination.

Noting that the settlement agreement was received as evidence in the course of the disciplinary hearing, the Appellate Division concluded that there was no basis for Smeraldo’s claim that the Hearing Officer improperly relied upon facts not in evidence.

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

http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07336.htm

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Independent contractors not entitled to retirement benefits or other fringe benefits

Independent contractors not entitled to retirement benefits or other fringe benefits
Araneo v Town Bd. for Town of Clarkstown, 55 AD3d 516

Michael Araneo was the owner, president, and sole employee of a corporation: Michael Araneo, Inc. In 1970 Araneo began performing work for the Town of Clarkstown at the Town dump and on September 15, 1997, on behalf of the corporation, signed an agreement with the Town providing that the corporation would perform certain services at the Town's solid waste facility and other facilities.

This contract expressly provided that the corporation and its employees would be acting as independent contractors and were not to be considered employees of the Town.

Araneo submitted vouchers to the Town Comptroller for payment and the payment was generally made to the corporation. The Town did not withhold taxes or insurance, and that the corporation paid the requisite taxes and insurance on behalf of Araneo. In addition, the corporation carried liability insurance, maintained its own offices, and that the Town paid the corporation more than an individual employee would have been paid for the same work. Further, Araneo used “many of his own tools” in performing his work and “was not instructed on how to perform the work he did for the Town.”

On January 8, 2002, Araneo sued the Town, for a judgment declaring that effective July 3, 1978 and through and including January 14, 2005, he was a Town employee entitled to all benefits enjoyed by such employees, including but not limited to, pension rights, health care, vacation time, sick leave, and personal time.

The Appellate Division said that “The determination of whether one is an employee or an independent contractor requires examination of all aspects of the arrangement between the parties,” although "the critical inquiry . . . pertains to the degree of control exercised by the purported employer over the results produced or the means used to achieve the results." Other elements include “assessing control include whether the worker (1) worked at his own convenience, (2) was free to engage in other employment, (3) received fringe benefits, (4) was on the employer's payroll and (5) was on a fixed schedule." Significantly, the court said “the fact that a contract exists designating a person as an independent contractor is to be considered, but is not dispositive.

In this instance, said the court, the record plainly establishes that, at all times at issue, Araneo was an independent contractor to the Town and not a Town employee. Consequently, Araneo was held not to be an employee of the Town of Clarkstown at any time from July 3, 1978, to January 14, 2005.

The full text of the decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2008/2008_07599.htm