Recent NYC Office of Administrative Trials and Hearings [OATH] decisions

Recent NYC Office of Administrative Trials and Hearings [OATH] decisions 

OATH Index No. 1780/12

After a bridge and tunnel officer (“BTO”) took offense upon discovering his leave request status form posted on an employee bulletin board, he posted a profane note next to the form, directed at “who ever put” his personal information on the board. The only personal information contained on the leave form, however, was the officer’s last name.

OATH Administrative Law Judge Kara J. Miller found that writing and posting the obscene missive was misconduct.

The ALJ rejected the officer’s argument that the posting was permissible “shop talk”, noting that while it might not be uncommon for BTOs to use profanity on the job, this was not a verbal outburst made in the heat of the moment, but a deliberate statement, publicly posted and directed at a supervisor.

The recommended penalty was a 30-day suspension.

Judge Miller’s ruling is posted on the Internet at: Triborough Bridge & Tunnel Auth. v. McAllister (in PDF),

OATH Index No. 2059/12 

Evidence was introduced in a disciplinary hearing held before OATH Administrative Law Judge Alessandra Zorgniotti showing that a community associate was absent on 223 occasions and late on 35 occasions during a 13-month period.

Such evidence, the ALJ concluded, proved the excessive absence and the lateness charges and specifications filed against the individual.

ALJ Zorgniotti found that although "excessive absenc" was not specifically defined by the agency's rules, the sheer number of absences proven were excessive per se and recommended that the community associate be terminated. The Appointing Authority adopted the ALJ's recommendation and dismissed the individual.

Judge Zorgniotti’s decision is posted on the Internet at:  Dep’t of Buildings v. Rodriguez (in PDF).

Employer must show that employee's legal speech threatened the effective operation of the employer to prevail in disciplinary action taken against the employee

Employer must show that employee's legal speech threatened the effective operation of the employer to prevail in disciplinary action taken against the employee

Santer v Board of Educ. of E. Meadow Union Free Sch. Dist., 2012 NY Slip Op 08750, Appellate Division, Second Department

The genesis of the disciplinary action taken against a union official was a series concerted actions by teachers during collective bargaining negotiations that included weekly picketing in front of a school when students were being dropped off. On a day when it was raining, some of the teachers parked their cars along nearby street and display their signs in their car windows. The street was one of several locations where parents would drop off their children.

The charges filed against the union president included the allegation that his activities “resulted in children being dropped off in the middle of the street which resulted in an otherwise avoidable and unnecessary health and safety hazard." According to the school principal, the parking activity caused traffic to become extremely congested, and some children were dropped off in the street and had to cross traffic lanes to reach the sidewalk. No school official asked the teachers to move their cars during the protest, and no child was injured.

In the course of the disciplinary arbitration hearing, the union president contended that he had a constitutionally protected right to peacefully picket in a public area before the beginning of the school day. The arbitrator rejected this argument, found the president guilty of the charge of creating a health and safety hazard and directed that he pay a $500 fine.

The Appellate Division, noting that an arbitration award must be rational and not arbitrary and capricious, said that the evidence that children were dropped off in the middle of the street due to the arrangement of the cars provided a rational basis for the arbitrator's determination that the president contributed to the creation of a health and safety hazard, and the award was not arbitrary and capricious.

However, the Appellate Division also considered the president’s claim that that the disciplinary proceeding commenced against him, and the discipline ultimately imposed, violated his right to free speech under the First Amendment to the United States Constitution, explaining that courts “must balance free-speech principles against the threat to effective government operation presented by that speech.” Further, said the court, the government employer bears the burden of showing that the disciplinary action taken against the employee was justified.

The union president’s "speech" regarding collective bargaining issues indisputably addressed matters of public concern and “despite the evidence establishing that the manner in which the protest was carried out interfered with the safe and effective drop-off of students," the Appellate Division found that the School District failed to meet its burden of demonstrating that the union president’s exercise of his First Amendment rights so threatened the school's effective operation as to justify the imposition of discipline.

The president, said the court, “fully complied with the applicable parking regulation” and were the municipality of the view that it was unsafe for cars to park along the street in question during the time when parents dropped off their children at the school, “it could have prohibited parking during the relevant time periods, but it did not do so."

Further, said the Appellate Division, “no school official asked the teachers to move their cars during the protest, and no student was injured as a result of the protest.”

As the record establishes that the danger presented by the legally parking teachers could not have been substantial, the Appellate Division concluded that under these circumstances the District failed to demonstrate that union president's legal speech so threatened the effective operation of the school that discipline of him was justified.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2012/2012_08750.htm

Education Law §310 may not be used to appeal an administrative decision made by an employee of the State Department of Education

Education Law §310 may not be used to appeal an administrative decision made by an employee of the State Department of Education

Advanced Therapy, OT, PT, SLP, ET AL PLLC, - An appeal from a decision by the New York State Education Department, Decisions of the Commissioner of Education, Decision 16,446

Advanced Therapy, a provider of preschool education services, challenged a decision denying a program modification request that it alleged was made by a State Education Department employee.

The Commissioner dismissed Advanced Therapy’s appeal, explaining that “It is well settled that Education Law §310 does not authorize an appeal to the Commissioner from actions taken by members of the staff of the State Education Department “

Such decisions, said the Commissioner, may be challenged in a proceeding brought in a court of competent jurisdiction pursuant to Article 78 of the Civil Practice Law and Rules.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume52/d16446.html

In order to be considered by an administrative tribunal, the evidence must be made available to the tribunal prior to its making a final determination

In order to be considered by an administrative tribunal, the evidence must be made available to the tribunal prior to its making a final determination
Cabonargi v City Univ. of N.Y., 2013 NY Slip Op 00129, Appellate Division, First Department

A doctoral program student dismissed from the City University of New York challenged the University’s decision. After considering “an email from student's academic advisor," Supreme Court granted the student’s petition and directed the University “to reconsider” its decision.

The Appellate Division unanimously reversed, on the law, explaining that Supreme Court improperly considered an email from the student's academic advisor as it was never presented at the administrative level.

Indeed, said the court, the e-mail considered by Supreme Court was issued after the University's “final determination.”

The Appellate Division noted that with respect to the evidence considered at the administrative level, the University's determination concerning the graduate student’s academic qualifications was rational, and was made in good faith and in accordance with its own rules.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_00129.htm

A Reasonable Disciplinary Penalty Under the Circumstances

A Reasonable Disciplinary Penalty Under the Circumstances 

A Reasonable Disciplinary Penalty Under the Circumstances by Harvey Randall, Esq., is a 600+ page electronic handbook [e-book] for administrators, union officials, attorneys and others involved in disciplinary actions involving public officers and employees employed by New York State as the employer and its political subdivisions pursuant to the State's Civil Service Law, the Education Law, contract disciplinary grievance procedures negotiated pursuant to Article 14 of the Civil Service Law [the Taylor Law] and other statutes, rules or regulations.

In his review of this e-book, St. John's Law School Adjunct Professor Mitchell H. Rubinstein states:

 ... another excellent book that all, and I mean all, lawyers, management representatives and union advocates who practice New York public sector labor and employment law will want to purchase ... Because the book is an e-book, like Mr. Randall's previous books, it can be be downloaded to your computer and then searched as a MS Word document. Labor management officials and attorneys will want this book because it is well researched and organized and simply a time saver. Quite frankly, there is no other book like this which discussed New York law in a complete and comprehensive fashion.

For additional information about this e-book, click on http://nypplarchives.blogspot.com