Prima facie showing that bad faith underlies the basis for termination sufficient to defeat the employer’s motion to dismiss the action

Prima facie showing that bad faith underlies the basis for termination sufficient to defeat the employer’s motion to dismiss the action

Supreme Court vacated the board of education’s determination terminating a school teacher and remanded the matter for a “new investigation and hearing under the auspices of a different investigator nunc pro tunc* and sub silentio".**Supreme Court also denied the board’s motion to dismiss its former employee’s petition.

The Appellate Division vacated the lower court ruling in part, directing the employer to serve an answer within 20 days of service it being served with a copy of its ruling.

The Appellate Division explained that the former employee “has sufficiently alleged that the investigator from the board’s Office of Special Investigations acted in bad faith in making the determination that formed the basis for [the board's] terminating [the former employee]” and the board’s motion to dismiss its former employee's petition was properly denied. 

However, said the court, “the motion court erred in determining the merits of the proceeding without affording [the school board] an opportunity to serve an answer upon the denial of its motion to dismiss,” citing Samuel v Ortiz, 105 AD2d 624.

* Latin for “to make a new decision which, presumably, would be applied “retroactive.”

** Latin for “without notice (of the earllier record) being taken.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06882.htm

Employees terminated following their "double billing" for car expense

Employees terminated following their "double billing" for car expense 

OATH Index Nos. 1125/12 & 1126/12

The New York City Department of Finance brought charges against a tax assessor and a supervisor. The Department alleged that the two workers, who were sisters, fraudulently double-billed the Department for travel expenses at times when they traveled together in the same car.

The two employees contended that their conduct was permitted by Department rules and that they were both entitled to receive reimbursements because they jointly owned two vehicles.

However, evidence showed they had repeatedly submitted false odometer readings and although the Department did not have a specific rule against sharing cars and double-billing, the sisters had been told they could not both submit an expense report when traveling together for “a car allowance.”

OATH Administrative Law Judge Kevin A. Casey found that fraud could be the basis of discipline without a specific rule, and the charges were sustained. ALJ Casey recommended termination of their employment. The appointing authority adopted the ALJ’s recommendation.

The decision is posted on the Internet at

http://archive.citylaw.org/oath/12_Cases/12-1125.pdf

Procedural errors and omissions require the remanding the decision terminating plaintiff employees for further consideration

Procedural errors and omissions require the remanding the decision terminating plaintiff employees for further consideration

Four former employees of the City challenged the City’s terminating their employment.

Supreme Court referred the issues of the employees' "employment status at the time of their termination and . ... whether any of them were required to exhaust any administrative remedies under the Civil Service Law prior to commencing this Article 78 proceeding" to a Judicial Hearing Officer (JHO).

The JHO issued a determination holding that “none of the employees had a right to a post-termination [sic] hearing under the Civil Service Law.” Accordingly, said the JHO, none of the employees had any duty to exhaust administrative remedies. The JHO also found that none of the employees was a policymaking employee and, thus, that they could not be fired merely for political reasons and further ruled that all four had been dismissed from their positions with the City for political reasons.

The City filed "objections" to the JHO's determination. 

Specifically, the City objected to the JHO's determination that none of the employees was a policymaking employee. Additionally, the City asserted that the JHO went beyond the scope of the order of reference by determining that the employees were fired for political reasons.

The Appellate Division remitted the employees' petition to Supreme Court, explaining:

1. The challenged determinations, relating to the termination of the employees' employment, were not "made as a result of a hearing."

2. The administrative record was not sufficient for it to decide the entire proceeding on the merits in the interest of judicial economy.

3. Any motion for reconsideration of the substantive issues decided by the JHO must be directed to the JHO for resolution.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_06953.htm

Reimbursing a school board member's legal expenses incurred in litigation

Reimbursing a school board member's legal expenses incurred in litigation  

Decisions of the Commissioner of Education, Decision No. 16,422

The Commissioner of Education, after denying the application of the school board seeking to remove one of its members for allegedly “disclosing confidential information to a third party,” considered one additional administrative matter. The board member that the board sought to have removed from the board asked the Commissioner to grant her a certificate of good faith pursuant to Education Law §3811(1). Such a certificate  would required the school district to reimburse her the “reasonable legal expenses” she incurred in the proceeding.

§3811(1), in pertinent part, provides for the reimbursement of reasonable legal expenses incurred by a board member when “the trustees or board of education of any school district … have been or shall be instructed by a resolution adopted at a district meeting to defend any action brought against them, or to bring or defend an action or proceeding touching any district property or claim of the district … as well as all costs and damages adjudged against them…."

The Commissioner rejected the board member’s request, explaining that Education Law §3811(1) does not provide for the reimbursement of legal expenses incurred by a board member in defending “a criminal prosecution or an action or proceeding” brought against a board member by a school district, including proceedings before the Commissioner of Education.

Accordingly, said the Commissioner, the board member was not entitled to a certificate of good faith because the application seeking the removal of the board member was brought by the school district of which the board member was an officer 

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

http://www.counsel.nysed.gov/Decisions/volume52/d16422.html

Found guilty of charges of AWOL, incompetent performance and being disrespectful to the superior, employee terminated

Found guilty of charges of AWOL, incompetent performance and being disrespectful to the superior, employee terminated

The Department of Environmental Protection charged that a sewage treatment worker was incompetent due to excessive absence and AWOL.  The employee was also charged with being disrespectful to a supervisor. 

Supervising Administrative Law Judge Joan R. Salzman found that the uncontested proof that employee was absent on 287 of 391 work days during an 18-month period, an absence rate of 73%, established the incompetence charge.  Judge Salzman also found that agency proved the AWOL and disrespect charges.  

Noting respondent’s “abysmal attendance record (exacerbated by his use of profanity to his supervisor),” Judge Salzman found the AWOLs and the incompetence due to excessive absence to be independent bases for termination, and recommended termination of the individual’s employment. Her recommendation was adopted by the appointing authority.

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1420.pdf