Proving disciplinary charges

Proving disciplinary charges

An employee was found guilty of some of the thirty specifications of misconduct and incompetence filed against her. The hearing officer found the employee guilty of seventeen of these thirty specifications and recommended that she be dismissed from her position.

Specifications of misconduct and incompetence filed against the employee included allegations of excessive lateness, failure to properly carry out assigned duties, and actions in contradiction of established employer procedure. The hearing officer's findings and recommendations were adopted by the appointing authority and the individual was dismissed from her position. In sustaining the determination, the Appellate Division, Third Department noted that: the findings of a Hearing Examiner will be confirmed if they are supported by substantial evidence in the record even where conflicting evidence may have supported a different determination.

What constitutes "substantial evidence" is the significant issue in such cases. The decision illustrates some of the factors that courts weigh in determining whether there is substantial evidence to support the findings of the hearing officer.

The hearing officer found the employee guilty of seven of the 12 specifications concerning her alleged failure to perform assigned clerical tasks properly. The court, however, concluded that "only six of the seven specifications should be confirmed based upon the testimony proffered by petitioner's supervisor." Why? Because, explained the court, testimony that employee had typed the incorrect labels because the witness recognized the font from the individual’s typewriter was insufficient as there was testimony establishing that there were several typewriters in that office using that particular font. As the witness could not testify that she witnessed the employee preparing these folders and the employee denied that the error was hers, the court said it could not conclude that there was sufficient evidence to support this allegation.

The hearing officer also found the employee guilty of six of thirteen specifications alleging that she improperly performing her duties by exceeding her authority or violating the employer’s policy. In this instance the court held that the record supported the hearing officer's findings, noting that the employee was advised of these problems in her performance in various performance evaluation, together with the need for her to improve in these areas.

With respect to disciplinary specifications focusing on the employee's use of the workplace to conduct personal business and engage in lengthy personal telephone calls, the Appellate Division ruled that the testimony of her superiors, confirmed by a co-worker, was sufficient to prove the allegations.

The court also said that it did not find any error in the hearing officer finding the employee guilty of 36 of the 48 allegations that she had arrived late for work on specified dates. These allegations, said the court, were supported either by the employee's time sheets or by testimony from her superior or co-workers.

The Appellate Division remanded the matter to the employer for its consideration of the appropriate penalty to be imposed in view of its finding the employee not guilty of certain charges and specifications. The court also said that it noted that the employee had been given numerous oral admonitions and counseling memoranda warning her of "further disciplinary action," but held that such actions did not constitute "punishment" such that the present disciplinary proceeding could be deemed duplicative.

The decision is posted on the Internet at:

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&mt=Westlaw&n=2&origin=Search&query=%22FERGUSON+V+TRAFICANTI%2C%22&rlt=CLID_QRYRLT6335626910110&rltdb=CLID_DB219026910110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA889026910110&sv=Split&tempinfo=word&vr=2.0

Suspension without pay for 270 days disciplinary penalty

Suspension without pay for 270 days disciplinary penalty

Is suspending a employee found guilty of a number of charges of misconduct without pay for 270 days lawful? After all, the Section 75 of the Civil Service Law limits such a suspension without pay for a period not to exceed two months.

The Appellate Division, Second Department, said it was appropriate under the circum­stances and sustained a 270-day suspension without pay disciplinary penalty imposed by the appointing authority on an individual after he was found guilty of:

1. Two counts of engaging in conduct unbecoming an officer,

2. One count of using employer’s equipment other than in the course of official business,

3. Four counts of engaging in unlawful conduct,

4. Two counts of failing to treat as confidential the official business of the employer, and

5. One count of making or submitting, or causing to be submitted, a false official communication, record, or statement.

The Appellate Division said that the officer's guilt with respect to these charges was supported by substantial evidence in the record.

As to the nature of the penalty imposed, the court said that the Police Department's determination regarding appropriate internal discipline to be imposed is entitled to great deference and, "under the circumstances of this case, will not be disturbed."

Although 75 of the Civil Service Law limits the suspension without pay for a period of not to exceed two months, the Appellate Division, citing Coscette v Town of Wallkill, 281 AD2 479, ruled that the penalty of suspension without pay for 270 days was permis­sible pursuant to Civil Service Law 76(4) and Nassau County Administrative Code 8-13.0.

Section 75 provides, as alternative disciplinary penalties, suspension without pay for not to exceed two months, punishment consisting of either a reprimand; or a fine not to exceed $120; or demotion in grade and title; or dismissal. In contrast, an arbitrator setting a disciplinary penalty pursuant to a contract disciplinary procedure is usually authorized to impose an "appropriate penalty" and is not limited to those prescribed in a statute such as Section 75 of the Civil Service Law.

The decisions are posted on the Internet at:

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&n=2&origin=Search&query=%22296+AD2D+575%22&rlt=CLID_QRYRLT4874037579110&rltdb=CLID_DB6435037579110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA7236537579110&tempinfo=word&vr=2.0

http://weblinks.westlaw.com/result/default.aspx?cfid=1&cnt=DOC&db=NY-ORCS-WEB&eq=search&fmqv=c&fn=_top&method=TNC&mt=Westlaw&n=5&origin=Search&query=%22302+AD2D+600%22&rlt=CLID_QRYRLT2327351539110&rltdb=CLID_DB7388350539110&rlti=1&rp=%2Fsearch%2Fdefault.wl&rs=NYOFF1.0&service=Search&sp=NYOFF-1000&srch=TRUE&ss=CNT&sskey=CLID_SSSA4989950539110&sv=Split&tempinfo=word&vr=2.0

[Leave to appeal denied, 3 N.Y.3d 611]

Determining seniority for the purposes of layoff

Determining seniority for the purposes of layoff
Decisions of the Commissioner of Education, Decision 16,411

As a result of “budgetary constraints," the school board voted to abolish four positions in the elementary tenure area. 

One of the teachers laid off challenged the board determination, contending district improperly excluded two sixth grade teachers from the elementary tenure area seniority list and that those teachers were the least senior in that tenure area. Claiming she had greater seniority in the elementary tenure area, the teacher appealed the school board action to the commissioner of education.*

One the factors that provided critical to the teacher's claim of having greater seniority than the two sixth grade teachers cited by her was that she had been granted an unpaid 23-day leave for maternity during her probationary period.

The Commissioner, noting that Education Law §3013(2) provides that when a board of education abolishes a position, “the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued” and that Section 30-1.1(f) of the Rules of the Board of Regents defines seniority as follows: “Seniority means length of service in a designated tenure area ...,”  said that the principal issue in this appeal is whether teacher was one of the four least senior teachers in the elementary tenure area. 

With respect to the two teachers the board had “excluded” from the elementary tenure area, the Commissioner found that both were serving in the elementary tenure area and thus both should have been included on the seniority list for that tenure area. 

This ruling, however, did not change the result insofar as the teacher’s appeal was concerned.

The Commissioner pointed out that the record demonstrated that the teacher was still the least senior teacher in the elementary tenure area as a result of her 23 days of unpaid leave taken during her probationary period, noting that “It is well settled that days spent on unpaid leave of absence may not be included in determining seniority.”**

With respect to such absence, one of the arguments advanced by the teacher in support of her appeal was that because she had taken the unpaid leave pursuant to the Family Medical Leave Act [FMLA], her absence must still be included in calculating her seniority.

The Commissioner disagreed, noting that the FMLA specifically provides that an employee “may, but is not entitled to, accrue any additional benefits or seniority during unpaid FMLA leave.”*** The Commissioner quoted from the U.S. Department of Labor's FMLA guidelines wherein it states “The FMLA does not entitle an employee to the accrual of any seniority (or employment benefits) during any period of FMLA leave [.]” 

Finding that the teacher “served 23 days less” than one of the sixth grade teachers and “at least three days less” than the other sixth grade teacher, the Commissioner concluded that the teacher “was the least senior teacher in the elementary tenure area and [thus] was properly excessed.”

* The Commissioner’s decision notes that the superintendent notified the teacher of “an opening in an elementary teaching position” but the teacher had declined reappointment to the position offered.

** With respect to employees in the classified service of the State and public authorities, public benefit corporations and other agencies for which the Civil Service Law is administered by the State Department of Civil Service, 4 NYCRR 4.5(g) grants the appointing authority discretion to excuse certain absences during the individual’s probationary period. However, the minimum and maximum periods of the probationary term of the employee are to be extended by the number of workdays of his or her absence[s] that are not so excused. Many local civil service commissions have adopted a similar rule.

*** See 29 C.F.R. §825.215(d)(2).

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16411.html

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The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/ for additional information about this electronic reference manual.

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The New York State Teachers’ Retirement System has a duty to correct errors in the computation of retirement allowances

The New York State Teachers’ Retirement System has a duty to correct errors in the computation of a member's retirement allowance

During the three years immediately prior to retirement, a teacher* participated in the school district’s "Senior Teacher Program,” a three-year program available upon request on a one-time basis to teachers with at least 15 years of employment with the school district. A participating teacher received a stipend of $12,000 per year in addition to his or her base salary and was required to complete preapproved annual projects. 

In this instance the stipend paid to the "participating teacher" was initially included in the calculation of the teacher’s final average salary for purposes of determining her retirement allowance by the New York State Teachers’ Retirement System [NYSTRS] upon her retirement from the school district.

NYSTRS subsequently determined that the stipend paid to the teacher in connection with her participation in the school district's "Senior Teacher Program" should have been excluded from its calculation of the teacher’s “final average salary” for the purposes of determining her appropriate retirement allowance as it constituted "nonregular compensation." When it sought to recoup the “overpayment” resulting from its  inclusion of the stipend in its initial calculation, the teacher sued.

Supreme Court dismissed the teacher’s petition and the Appellate Division affirmed the lower court’s ruling, noting that the retirement system was obligated to correct errors in its computation of retirement benefits. Further, said the court, the recoupment of funds erroneously paid by the retirement system was proper.

Considering the relevant regulation**provided that "[r]egular salary earned shall exclude termination pay and payments which are not part of the salary base and/or are not paid over a period of years; for example, bonuses and one-time-only increments," NYSTRS had concluded that the stipend paid to the teacher in connection with her participation in the school district's "Senior Teacher Program" did not constitute "regular salary earned" because:

1. The contract between the faculty and the school district specifically provided that the stipend was not to be included as part of a teacher's base salary;

2. The stipend was for work done in addition to and outside the scope of a teacher's regular duties; and

3. Participation in the program was available only once during a teacher's employment with the school district.

The Appellate Division said that it found that NYSTRS’s determination had a rational basis and, accordingly, sustained the administrative decision

* In this instance the teacher was a “Tier II” member of the New York State Teachers’ Retirement System.

** See 21 NYCRR 5003.1[a].

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06355.htm

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli

Issued during the week of September 24 - 30, 2012 [Click on the caption to access the full report]

DiNapoli Proposes Early Warning System To Identify Local Governments In Fiscal Stress

With a growing number of local governments facing significant fiscal stress, State Comptroller Thomas P. DiNapoli announced plans Monday to implement an early warning monitoring system that would identify municipalities and school districts experiencing signs of budgetary strain so that corrective actions can be taken before a full financial crisis develops.

DiNapoli Invests $2.5 Million From State Pension Fund in Ithaca–Based Printing Company CognitiveTPG

New York State Comptroller Thomas P. DiNapoli announced Tuesday that DeltaPoint Capital Management has acquired a majority stake in Ithaca–based CognitiveTPG, a supplier of point–of–sale transaction and barcode printers. The Common Retirement Fund is an investor in DeltaPoint through the In–State Private Equity Program. Photos are available here.

Empire State Plaza Assigns New Director After Audit Reveals Elevator Safety Lapses

Elevators at the Empire State Plaza went unrepaired for months despite 32 maintenance deficiencies, according to an auditreleased Thursday by State Comptroller Thomas P. DiNapoli. The audit prompted the Office of General Services to assign a new director and deputy director of plaza operations to properly oversee elevator maintenance.

DiNapoli: August Cash Report Shows Continued Economic Uncertainty

Tax receipts through August 2012 were $147 million below projections and $204.3 million below collections for the same period last year, reflecting continued volatile economic conditions, according to the August Cash Report released last Wednesday by State Comptroller Thomas P. DiNapoli.

Comptroller DiNapoli Releases Municipal Audits

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the following audits:

Town of Evans;

Town of Fort Edward; and,

Town of Schodack.

Comptroller DiNapoli Releases School Audit

New York State Comptroller Thomas P. DiNapoli Tuesday announced his office completed the audit of the Ark Community Charter School.

Comptroller DiNapoli Releases Audits

New York State Comptroller Thomas P. DiNapoli last Tuesday announced his office completed the following audits:

Department of Transportation;

New York State Thruway Authority;

Department of Health; Office for the Aging; and,

Office of Parks, Recreation and Historic Preservation.