Terminated employee’s actions that did not constitute misconduct but was an error of judgment does not disqualify the individual for unemployment insurance benefits

Terminated employee’s actions that did not constitute misconduct but was an error of judgment does not disqualify the individual for unemployment insurance benefits

Jackson (County of Nassau Civ. Serv. Commn.--Commissioner of Labor), 2012 NY Slip Op 05372, Appellate Division, Third Department

A correction officer at the Nassau County Correctional Facility began a “personal relationship with a man who was later incarcerated at that facility.” She continued to have a personal relationship with this individual following his incarceration and communicated with him on her cell phone in contravention of the facility’s policy prohibiting corrections personnel from fraternizing with inmates.

Ultimately the correction officer was terminated from her position and she was later disqualified from receiving unemployment insurance benefits on the ground that her employment was terminated due to misconduct.

The Unemployment Insurance Appeal Board, however, reversed this decision and ruled that correction officer was entitled to receive benefits because her activities did not constitute misconduct, but rather an error of judgment.

The Appellate Division sustained the Board’s ruling.

Rejecting the facility’s appeal, the court explained that the question of whether an applicant for unemployment insurance benefits had engaged in disqualifying misconduct is a factual issue for the Board to resolve and “its determination will not be disturbed if supported by substantial evidence.”

Notably, said the court, "not every mistake, exercise of poor judgment or discharge for cause will rise to the level of misconduct." Although the correction officer’s making the phone calls violated the employer's policy prohibiting corrections personnel from having personal conversations with inmates, she had testified that she was unaware of this policy.

The court, “based upon the limited record” before it, concluded that substantial evidence supported the Board's finding that correction officer's actions, “albeit inappropriate, did not rise to the level of misconduct disqualifying her from receiving unemployment insurance benefits.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/slipidx/aidxtable_3.shtml

New York City Civil Service Commission’s determination that an applicant is qualified for the position sought affirmed

New York City Civil Service Commission’s determination that an applicant is qualified for the position sought affirmed

In the Application of The City of New York and Martha K. Hirst, As Commissioner of the New York City Department of Citywide Administrative Services, 2008 NY Slip Op 32509(U), Supreme Court, New York County, Docket Number: 0400925/2008, Judge: Lewis Bart Stone [Not selected for publication in the Official Reports]

In this action, New York City’s Department of Citywide Administrative Services [Administrative Services] as the court to review the City Civil Service Commission’s [CSC] decision that an applicant for the position of Assistant Engineer was qualified for appointment to this title.

The applicant had been educated in Minsk, Belarus and had completed a combined undergraduate curriculum for the degree of Specialist in Civil Engineering with a specialization in Water Supply and Sewage Systems in 1974. Administrative Services had rejected her application on the grounds that she was not qualified for the position because she did not meet the qualifications set out in the Examination Announcement.

CSC held an “evidentiary hearing” an ultimately determined that the applicant was qualified for the position, ruling that the course work completed by the applicant is equivalent to the curriculum outlined for a baccalaureate degree in Environmental Engineering at the State University of New York at Buffalo and the curriculum outlined by Manhattan College for a Master’s Degree in Environmental Engineering.

Administrative Services appealed, contending that CSC had “acted arbitrarily and capriciously and abused its discretion” in qualifying the applicant for the position.

Justice Stone said that the hearing record shows that Administrative Services “relied on a consultant’s evaluation” of the applicant’s educational transcript to find a lack of equivalency, and that CSC made its own factual evaluation of equivalency based on the applicant’s transcript in light of curricula in New York colleges.

The problem of equivalency, CSC noted, is that engineering disciplines overlap. Accordingly, said the court, inquiry into the meaning of the applicant’s educational courses and relating their equivalency to modern environmental curricula is hardly arbitrary, capricious or an abuse of discretion in this context.

Justice Stone dismissed Administrative Service’s appeal, ruling “Whether this Court would have made the same decision on the facts as [the Commission] did is not relevant. What is relevant is that [the Commission] made an inquiry and reviewed the material submitted to it and made its Decision on the facts of equivalency, a determination that is neither arbitrary, capricious or ai1 abuse of discretion.

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

http://www.courts.state.ny.us/reporter/pdfs/2008/2008_32509.pdf

Conflicts of Interest

Conflicts of Interest

Opinion of the Office of the State Comptroller, #2008-1; #2008-2

In response to an inquiry concerning gifts to school district, the Office of the State Comptroller advised:

A school board member would not have a prohibited conflict of interest under article 18 of the General Municipal Law if he or she also served as a trustee on the board of trustees of a not-for-profit foundation that raises money and makes gifts to the school district. The school board member, however, should not participate in school board discussions or decisions relating to gifts from, or other matters involving, the not-for-profit foundation for which the board member serves as a trustee and, assuming disclosure is not otherwise required by General Municipal Law § 803, should disclose his or her relationship with the not-for-profit entity. [Opinions of the Office of the State Comptroller 2008-1]

The full text of the opinion 2008-1is posted on the Internet at:

http://www.osc.state.ny.us/legal/2008/op2008.1.htm

___________________

In response to an inquiry concerning contracts entered into prior to an individual’s commencing municipal service, the Office of the Comptroller advised:

A newly elected town board member has an interest in a contract between the town and the board member, as a sole proprietor, under which the board member picks up road salt and delivers the salt to a town storage facility.

If the contract was entered to before the board member was elected to office, the exception in General Municipal Law §802 (1) (h) applies and the interest is not prohibited. The board member would be required, however, to disclose the interest in accordance with General Municipal Law §803. In addition, the board member would have a prohibited interest in renewals of the existing contract, or in subsequent contracts between the town and himself or herself as sole proprietor unless another exception in General Municipal Law §802 were to apply. The town should consult its code of ethics to determine whether it contains any pertinent provisions. Even if not required by the town's code of ethics, the board member should not participate in town board discussions or decisions relating to the hauling contract, including but not limited to, discussions or decisions pertaining to auditing claims under the contract. [Opinions of the Office of the State Comptroller 2008-2]

The full text of the opinion 2008-2 is posted on the Internet at:

http://www.osc.state.ny.us/legal/2008/op2008.2.htm

N.B. These opinions represent the views of the Office of the State Comptroller at the time it was rendered. These opinions may no longer represent those views if, among other things, there have been subsequent court cases or statutory amendments that bear on the issues discussed in these opinions.

Seeking a court order to compel a public officer to perform his or her duty

Seeking a court order to compel a public officer to perform his or her duty

CSEA v Patchogue-Medford UFSD, 239 A.D.2d 415

CSEA v Patchogue-Medford UFSD, a case involving a demand to effect an appointment of an individual to a reclassified position, was characterized as an action “in the nature of mandamus.”

After reviewing the duties and responsibilities of the position of stenographer then held by Lorraine Fishman, the Suffolk County Civil Service Commission advised the Patchogue-Medford Union Free School District that it had reclassified the position to senior stenographer. The Commission then certified the promotion list for senior stenographer to the District. Fishman was first on the list.

The District returned the list to the Commission, indicating that "it would not be making an appointment to the position of senior stenographer at that time."* Fishman sued, seeking a court order compelling the District to appoint her to the reclassified position. Her petition, said the court, was an action "sounding in mandamus."

Supreme Court, Suffolk County, however, never reached the merits of Fishman's claim as it dismissed her petition on the grounds that it was untimely. The Appellate Division affirmed the lower Court's ruling.

What was the reason for the Courts to declare Fishman's suit untimely? The Appellate Division said that although Fishman knew in June that the District was not going to appoint her to the position of senior stenographer, "she made no formal demand upon the District” to appoint her to the senior stenographer position until she commenced the [Article 78] proceeding until the following March.

The Court pointed out that "before commencing a proceeding in the nature of mandamus, it is necessary to make a demand and await a refusal and the Statute of Limitation begins to run on the date of the refusal and expires four months later."

A party, however, cannot delay in making his or her demand, thereby extending indefinitely the period during which he or she is required to take action.

In this instance the Appellate Division decided that Fishman had not proceeded with sufficient promptness in making her demand and thus the doctrine of laches barred her from suing. Laches results from the failure of a party to do something to enforce a right at a proper time.

Although the courts never reached the merits of Fishman's petition, it should be noted that as a general proposition, an appointing authority cannot be required to fill a vacant position, even if there is an appropriate eligible list available to it.

For example, in Porto v Town of Harrison, 100 AD2d 870, the Appellate Division said that an individual on an eligible list does not have a "presumptive right" to appointment."

Similarly, in Bailey v Kern, 177 Misc 904, the Court said that it did not have the power to command an appointing authority to fill a vacancy because the discretion to make appointments is vested in the appointing authority.

Another case, Taylor v Hammondsport CSD, 267 A.D.2d 987, brought by a teacher following his being involuntarily reassigned to non-teaching duties, was also characterized by the court as being "an action in the nature of mandamus."

The Hammondsport Central School District had assigned the teacher to perform non-teaching duties after he was found guilty of certain disciplinary charges filed against him pursuant to [former] Section 3020-a of the Education Law.

The educator objected to his reassignment to non-teaching duties, contending that the assignment to such duties constitutes the imposition of an additional penalty or remedial action in violation of Education Law Section 3020-a. He challenged his reassignment, demanding that he be reinstated to his former teaching assignment and compensated "for emotional distress he has endured as the result of district's assigning him to non-teaching duties."

A State Supreme Court judge dismissed the teacher's petition on the ground that he did not have any "clear legal right to the relief sought against [district], and therefore mandamus" was not available to him as a remedy.

The Appellate Division agreed with the lower court, pointing out that [former] "Section 3020-a neither limits the authority of [the district] to assign [a teacher] to non-teaching duties nor requires [the district] to restore [a teacher] to his [or her] teaching duties following the completion of disciplinary procedures conducted pursuant to the statute.”

* Presumably Fishman was reassigned to another, vacant, Stenographer position or she was “laid off” and her name was placed on a preferred list.

Abolishment of positions by a BOCES

Abolishment of positions by a BOCES must be made in good faith

Appeal of Christopher Curtis and G. Michael Newell from action of the Otsego-Northern Catskill Board of Cooperative Educational Services, Decisions of the Commissioner of Education, Decision No. 15,831

Christopher Curtis and G. Michael Newell appealed BOCES’ decision eliminate two positions of “English Teacher” in the Alternative Education Department effective September 1, 2004, because of a reduced request for services, contending that the stated reason for the abolition of their positions was unsupported by the facts.

With respect to Newell, BOCES argued that his appeal is moot because he retired from his position and that the Commissioner will only decide matters in actual controversy and will not render a decision on a state of facts which no longer exist or which subsequent events have laid to rest.”

The Commissioner agreed in part. He said “[r]etirement constitutes a formal and presumably permanent withdrawal from the teaching profession” and ruled that Newell’s petition is moot to the extent he seeks reinstatement to his former position. In contrast, the Commissioner said that Newell’s claim that seeks back salary and benefits “is not entirely moot because he alleges that BOCES abolished their positions improperly and unlawfully assigned others to teach English classes prior to the effective date of his retirement.”

As to the claim that BOCES abolished their positions in bad faith in violation of the Education Law, the Commissioner pointed out that Education Law Section 3013(1) provides that if a position is abolished and a similar position is created, the person who filled the abolished position must be appointed to the new position. However, neither Curtis nor Newell claimed that BOCES created similar positions and failed to appoint them to those positions. Rather they contend that BOCES “effectively created” two positions by redistributing their workload.

The Commissioner said that, in general, a board of education, acting in good faith, may abolish positions and consolidate the duties of the former positions among existing positions, citing Education Law §§1709[16] and [33]. Similarly, said the Commissioner, a board of cooperative educational services may abolish a position and consolidate it with another without creating a new position, pointing to Education Law §3013[3][a].

Noting that the record reflects that the elimination of two full-time English positions in BOCES’ Alternative Education Department was for economic and administrative reasons, the Commissioner concluded that Curtis and Newell failed to meet their burden of showing that BOCES acted in bad faith in abolishing their positions. Accordingly, the Commissioner ruled that neither is entitled to the requested reinstatement or back pay and dismissed their appeal.

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

http://www.counsel.nysed.gov/Decisions/volume48/d15831.htm

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