Use of hearsay evidence in an administrative disciplinary proceeding

Use of hearsay evidence in an administrative disciplinary proceeding

OATH Index No. 1944/12

A New York City Health and Hospital Corporation facility filed disciplinary charges against its manager of building services alleging that the manager had engaged in sexual contact with a patient suffering from dementia.

The patient did not testify, but his prior statements, which indicated he had consented to the sexual contact and received $5 afterward, were taken in evidence as admissible hearsay after OATH Administrative Law Judge Tynia D. Richard found them to be reliable and probative as the hospital’s security videos substantiated the patient’s hearsay statements and contradicted accused employee’s testimony.

Judge Richard sustained the charges and recommended that the manager be terminated from his position, commenting that the individual’s prior positive performance record and long tenure did not mitigate against imposing the penalty of dismissal for such serious misconduct. 

Hearsay testimony, which typically is barred from testimony in a criminal trial, is permissible in an administrative hearing. Indeed, in some instances the statute providing for the due process hearing specifically excuses compliance with or the application of the technical rules of evidence. For example, Civil Service Law §75.2 provides that “compliance with technical rules of evidence shall not be required,” while §3020-a.3.c(C) of the Education Law states “rules and procedures for the conduct of hearings ... shall not require compliance with technical rules of evidence.”

As the court said in Gray v Adduci, 73 NY2d 741, "it is well settled that hearsay is admissible in administrative hearings and may form the basis of an adverse determination."  

Despite its admissibility as competent evidence, however, an employee may not be found guilty of charges solely on the basis of hearsay. As the court explained in Brown v Ristich, 36 NY2d 183, some "real evidence" is required. "Real evidence" can be “direct,” that is evidence which standing alone establishes the facts at issue, or “circumstantial.”

The decision is posted on the Internet at:

http://archive.citylaw.org/oath/12_Cases/12-1944.pdf

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An educator’s tenure rights are not sacrosanct and should yield to administrative decisions based on economics and sound educational policy

An educator’s tenure rights are not sacrosanct and should yield to administrative decisions based on economics and sound educational policy

Educator, a tenured foreign language teacher, taught .8 Full Time Equivalent [FTE] French, for which she is state certified, and .2 FTE Spanish, for which she is not certified.* The Board notified her that her full-time teaching assignment would be reduced to a .6 FTE part-time position. The Board then hired a new teacher to teach German on a .2 FTE basis.

Supreme Court dismissed Educator’s application seeking a review a decision of the Board of Education, contending that the Board acted in an arbitrary and capricious manner by reducing Educator's teaching assignment and hiring another teacher without first attempting to shuffle the schedules of other teachers in the school district, including the most senior teacher[Senior] in the foreign language tenure area who was certified to teach German.

The Appellate Division held that Supreme Court correctly found that the Board's determination was not arbitrary, capricious or unlawful explaining that school districts are granted "sufficient latitude within the law to manage their affairs efficiently and effectively," including the ability to consolidate and abolish teaching positions for financial reasons.

The decision also noted that in the event a teaching position is consolidated or abolished, the Education Law requires that "the services of the teacher having the least seniority in the system within the tenure of the position abolished shall be discontinued."

Citing a number of decisions including Chambers v Board of Educ. of Lisbon Cent. School Dist., 47 NY2d 279, the Appellate Division said that to comply with the statute, “a board of education must, if possible, make schedule adjustments and shuffle teachers within the same tenure area to retain a district's most senior teachers.” 

However, the court noted, tenure rights are not sacrosanct and "should yield to decisions based on economics and sound educational policy." In such situations the board of education bears the burden of proving that it was impossible to adjust schedules to retain the more senior teacher, and this burden can be met with proof that proposed schedules are "not educationally or financially feasible."

Educator contended that the Board could have shuffled schedules by having Senior teach .8 FTE French and .2 FTE German** and giving .2 FTE French classes to Educator, resulting in Senior  having a full-time schedule and Educator with .8 FTE schedule, eliminating the need to employ a new teacher to teach .2 FTE German.

The court said that the Board considered this schedule arrangement, but found it educationally unsound and not logistically feasible. In addition to considering Senior’s self-professed incompetency to teach German, the Board considered the difficulty or impossibility of scheduling Educator to teach classes in both the middle school and high school, considering the differences in starting and ending times, different bell schedules in the two buildings and travel time between the two buildings.

Although the Board had not meet its burden of proving the impossibility of "schedule shuffling" based on the logistical problems, the Appellate Division concluded that the Board met its burden overall.

Although it would have been legally possible for Senior to teach German as she was certified in that language, the record supports the Board's assertion that it would not have been educationally sound to adjust the schedules as Educator suggested considering the fact that Senior had not taught German in 20 years and was admittedly incompetent to teach it.

Given this educational reason and the Board's economic reasons for reducing the number of French classes, the Appellate Division ruled that Supreme Court correctly found that the Board complied with Education Law §3013 and its determination was not arbitrary or capricious.

* Teacher taught .2 FTE Spanish which although outside her area of certification was permitted by Department of Education regulations.

** The most senior teacher, although certified to teach German, “self-professed [her] incompetency to teach German” as she had only a few sections of German throughout her career, the last of which was in 1991, and has taught French exclusively since then.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01122.htm

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US Department of Labor – Decisions of the Administrative Review Board

US Department of Labor – Decisions of the Administrative Review Board

January 2013

Case summaries and links to the decisions for the Board’s January 2013 decisions are posted on the Internet at:

http://www.oalj.dol.gov/PUBLIC/ARB/REFERENCES/Caselists/01_2013.HTM

A FOIL request seeking the names of a public retirement system’s retirees may be denied by the custodian of the records as exempt from disclosure

A FOIL request seeking the names of a public retirement system’s retirees may be denied by the custodian of the records as exempt from disclosure

Empire Ctr. for N.Y. State Policy v New York State Teachers' Retirement Sys., 2013 NY Slip Op 01117, Appellate Division, Third Department

The Empire Center for New York State Policy, [Policy] a nonprofit corporation, operates a website "aimed at educating and informing the general public about government spending."

In 2012, Policy filed a Freedom of Information Law* [Public Officers Law Article 6 (FOIL)] request seeking an updated database containing information pertaining to the Teachers’ Retirement System's [Retirement] retired members. Such request sought the same information that System had provided to Policy in previous years pursuant to FOIL requests, including the name of each retiree.

Retirement furnished most of the requested information, but refused to disclose the names of the retirees to whom the information corresponded, contending that "such information is exempt from disclosure under Public Officers Law §89(7)."

Public Officers Law §89(7), in pertinent part, provides: “Nothing in this article shall require the disclosure of the home address of … a retiree of a public employees' retirement system; nor shall anything in this article require the disclosure of the name or home address of a beneficiary of a public employees' retirement system … provided however, that nothing in this subdivision shall limit or abridge the right of an employee organization, certified or recognized for any collective negotiating unit of an employer pursuant to article fourteen of the civil service law, to obtain the name or home address of any … retiree of such employer, if such name or home address is otherwise available under this article.”

Citing the foregoing provisions of law, Policy contended that the plain language of Public Officers Law §89(7) exempts from disclosure only the home address, not the name, of a retiree. Noting that the statute makes a clear distinction between retirees and beneficiaries, Policy further argued that to read the term "beneficiary" to include a "retiree" would both deprive the word "retiree" of its own meaning and render the first clause of the provision superfluous.

Although conceding that “Well-settled principles of statutory construction lend support to the interpretation advanced by Policy,” the Appellate Division said that it was bound by the Court of Appeals' decision in Matter of New York Veteran Police Association. v New York City Police Dept. Art. I Pension Fund (61 NY2d 659 [1983]).

In Veterans Police Association the Court of Appeals interpreted Public Officers Law §89(7) as exempting from disclosure both the names and home addresses of retirees of a public employees' retirement system.

Policy attempts to distinguish its FOIL request from that relevant in Veterans by contending that the Veteran’s FOIL request was for both the names and the addresses of the retirees, whereas its request here was for the names only.

The Appellate Division ruled that the Retirement System properly denied Policy's FOIL request for the names of its retired members, noting that the First Department, relying on Veterans, reached this same conclusion in addressing a similar FOIL request by Policy for the names of the retirees of the New York City Police Pension Fund (see Empire Ctr. for N.Y. State Policy v New York City Police Pension Fund, 88 AD3d 520, 521 [2011], lv dismissed, 18 NY3d 901 [2012]).

* The basic concept underlying FOIL is that all government documents and records, other than those having access specifically limited by statute [see, for example, Education Law, §1127 - Confidentiality of records and §33.13, Mental Hygiene Law - Clinical records; confidentiality], are available to the public. The custodian of the records or documents requested may elect, but is not required, to withhold those items that are otherwise properly within the ambit of the several exceptions to disclosure permitted by FOIL.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01117.htm

Bath Volunteer Fire Department not a public agency for the purpose of contractor's paying prevailing wages pursuant to Labor Law §220

Bath Volunteer Fire Department not a public agency for the purpose of contractor's paying prevailing wages pursuant to Labor Law §220*
M.G.M. Insulation, Inc. v Gardner, 2013 NY Slip Op 01017, Court of Appeals

The Bath Volunteer Fire Department [BVFD], a not-for-profit fire corporation under Not-for-Profit Corporation Law §1402, historically operated from a building owned by the Village of Bath.

After BVFD determined that the facility was no longer adequate for its needs and the Village declined to build it a new firehouse, BVFD commissioned a feasibility study and obtained its own financing for the construction of a new facility. Ultimately BVFD acquired land and in 2006 employed R-J Taylor General Contractors, Inc. (Taylor) as the general contractor to build the facility. Taylor subsequently hired a number of subcontractors to construct the various portions of the firehouse.

Following an investigation, the Department of Labor (DOL) issued an opinion letter, concluding that the firehouse project was a public work subject to the prevailing wage law and ultimately an administrative hearing was held on the question of the applicability of the prevailing wage law to the firehouse project.**

A DOL Hearing Officer subsequently determined that the project was subject to the prevailing wage law, concluding that the firehouse project satisfied both prongs of the so-called Erie County test for prevailing wage law applicability, (see Matter of Erie County Indus. Dev. Agency v Roberts, 94 AD2d 532, affd 63 NY2d 810), holding that volunteer fire corporations such as BVFD are the "functional equivalent[s]" of municipal corporations and are therefore "covered entities" under Labor Law §220.

In the alternative, the Hearing Officer said that even if a volunteer fire corporation did not generally satisfy the public entity test, the protection services agreement between BVFD and the Village of Bath satisfied the first prong of the test and, because the Village authorized and supported the firehouse project, and the object of the project entailed provision of fire protection services for the community, the project satisfied the "public works" requirement.

The Court of Appeals disagreed with the Hearing Officer’s determination on both theories, holding that BVDF was not a public agency as contemplated by the statute nor was any other public entity a party to the 2006 contract. Accordingly, said the court, the prevailing wage law did not apply with respect to this project.

Had the Legislature intended to include volunteer fire corporations under the statute, said the court, it could easily have done so, explaining that in 2007, the Legislature expanded the statute's coverage to include contracts involving other types of entities [see Labor Law § 220(2)], but only when it can be shown they were acting on behalf of the public entity, citing New York Charter School Association v Smith, 15 NY3d 403, at 410.

  

* N.B. The court said that “Indeed, certain volunteer fire department contracts may fall under the prevailing wage law based on the 2007 “amendment language” of Labor Law §220(2) but at the time of contract relevant in this litigation, i.e., 2006, “the 2007 amendment of the prevailing wage law did not exist.”

** Once the subcontractors learned of the DOL's determination, work on the project halted. In December 2006, BVFD agreed to indemnify Taylor and its subcontractors against any liability resulting from their failure to pay the prevailing wages, and construction resumed and the project was completed.

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_01017.htm