Although individual acts of misconduct might not warrant termination of the individual, when considered in total dismissal could be the appropriate penalty to be impose

Although individual acts of misconduct might not warrant termination of the individual, when considered in total dismissal could be the appropriate penalty to be impose

2013 NY Slip Op 04414, Appellate Division, Third Department

The Fire District’s Board of Fire Commissioners served one of members of the Fire Department with disciplinary charges pursuant to General Municipal Law §209-l which in pertinent part, provides for Removal of volunteer officers and volunteer members of fire departments for incompetence or misconduct.

Subdivision 5 of §209-l states that a member of the fire department [1] suspend a volunteer firefighter after charges are filed and pending disposition of the charges and [2] after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year if he or she is found guilty of one or more of the charges served upon him or her.

.

§209-l further provides that “The provisions of this section shall not affect the right of members of any fire company to remove a volunteer officer or voluntary member of such company for failure to comply with the constitution and by-laws of such company.”

The Board of Fire Commissioner filed charges against one of the volunteer firefighters alleging that the volunteer [1] had engaged in misconduct, including violations of the Fire Department's bylaws and code of conduct. A hearing was conducted and the Hearing Officer found the volunteer guilty of the charges and recommended that he [1] be expelled from membership in the Fire Department and [2] removed from his position as an officer of the Fire Company.

The Board of Fire Commissioners adopted the Hearing Officer's findings of fact and conclusions of law and expelled the volunteer from the Fire Department and removed him from the office he had held.

In response to the individual’s challenge to the Board’s action the Appellate Division said that its determination that the individual was guilty of misconduct was supported by substantial evidence, noting that the Hearing Officer described volunteer's conduct as "persistently, repeatedly, intentionally, willfully, and incorrigibly insubordinate" based on the testimony of witnesses and the volunteer’s personnel records with the Fire Department.

Citing Matter of Kelly v Safir, 96 NY2d 32, the Appellate Division, noting that the volunteer’s acts of misconduct might not, individually, warrant expulsion from the Fire Department, said that “considering his conduct as a whole, we do not find the penalty of expulsion to be so disproportionate to the disciplinary charges as to be shocking to our sense of fairness.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04414.htm

Removal from public office by operation of law

Removal from public office by operation of law
2013 NY Slip Op 04884, Appellate Division, First Department

A New York City police officer was summarily dismissed from his position upon his entering a plea of “guilty” of “offering a false instrument for filing.”*

The officer’s CPLR Article 78 petition challenging his termination was dismissed by Supreme Court, New York County and he appealed.

Sustaining the lower court’s ruling, the Appellate Division noted that his offering a false instrument for filing constituted a violation of the oath of office, since the offense involves willful deceit.

Accordingly, said the court, his office was vacated automatically upon conviction,** pursuant to Public Officers Law §30(1)(e). §30(1) of the Public Officers Law provides that a public office shall become vacant by operation of law under certain circumstances, including the officer’s conviction of a felony, or a crime involving a violation of his or her oath of office. A police officer is a public officer and thus subject to the provisions of §30(1)(e).

In any event, a pre-termination hearing that might be otherwise required as a condition precedent to removing a public officer having tenure in the position or prior to the expiration of his or her term of office is not required in the event his or her termination is within the ambit of §30(1).

Significantly, §30(1)(e) provides that that a non-elected official may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy. As the police officer had entered a plea of guilty, it appears unlikely that his conviction would be “reversed” or “vacated,” thus triggering any opportunity to seek a hearing seeking reinstatement to his former position.

* See Penal Law §175.30.

** A plea of guilty is deemed a conviction.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04884.htm

Using a Global Positioning System device to gather evidence of employee misconduct

Using a Global Positioning System device to gather evidence of employee misconduct
2013 NY Slip Op 04838, Court of Appeals

The Department, suspecting that one of its employees was submitting false time reports, attached a global positioning system (GPS) device to the employee's personal automobile. Citing People v Weaver (12 NY3d 433) and United States v Jones(132 S Ct 945, the Court of Appeals ruled that the State's action was a search within the meaning of the State and Federal Constitutions but that under the relevant facts in this case “did not require a warrant.”

The court, however, then proclaimed that “on the facts of this case such surveillance was  unreasonable”

Addressing the lawful used of a GPS, the court noted that the employee’s Department initiated an investigation concerning the individual’s alleged unauthorized absences from duty and the falsification of records to conceal those absences. As a result the employee was served with certain disciplinary charges, found guilty and was suspended without pay for two months.

However, a second investigation was initiated when the Department referred the employee’s efforts to avoid surveillance to the Office of the State Inspector General. The Inspector General's investigation resulted in a second disciplinary proceeding, which resulted in this litigation.

According to the decision, the Inspector General's investigator attach a GPS device to the employee's car without his knowledge while the car was parked in a lot near the Department’s offices. Ultimately GPS devices recorded all of the car's movements for a month, including evenings, weekends and several days when the employee was on vacation. Subsequently the Inspector General’s investigators initiated surveillance of an apartment building the employee was suspected of visiting during working hours, subpoenaed E-Z Pass records and interviewed the employee and his secretary.

The resulted in the Department filing new charges against employee. The hearing officer found the employee guilty of 11 of the charges, eight of which were supported by evidence obtained through the use of a GPS device in whole or in part. The appointing authority adopted the hearing officer’s findings and recommendation and terminated the employee.

In explaining its ruling, the Court of Appeals said:

1. The attachment by law enforcement officers of a GPS device to the automobile of a criminal suspect, and the use of that device to track the suspect's movements, was a search subject to constitutional limitations.

2. The search in this case was a search within the meaning of Article I, §12 of the New York Constitution and the Fourth Amendment

3. The search in this case was within the "workplace" exception to the warrant requirement recognized in O'Connor v Ortega (480 US 709) and Matter of Caruso v Ward (72 NY2d 432).

The court noted that O'Connor involved the warrantless search by a public employer of the office of an employee suspected of misconduct. The United States Supreme Court upheld the search.

Subsequently the Court of Appeals had made it clear that it would follow O'Connor in deciding the constitutionality of searches conducted by public employers, whether for "noninvestigatory, work-related purposes" or for "investigations of work-related misconduct," under the New York as well as the Federal Constitution in its decision in Caruso.

Significantly, the employee did not challenge the existence of a workplace exception to the warrant requirement, but argued that it is inapplicable because the object of the search in this case was the employee's personal car. Accordingly, the employee contended that the court should “confine the exception to ‘the workplace itself, or . . . workplace-issued property that can be seen as an extension of the workplace.’" 

The Court of Appeals rejected this contention “at least insofar as it would require a public employer to get a warrant for a search designed to find out the location of the automobile an employee is using when that employee is, or claims to be, working for the employer.”

The bottom line: the Court of Appeals conclude that “when an employee chooses to use his car during the business day, GPS tracking of the car may be considered a workplace search [and the] Inspector General did not violate the State or Federal Constitution by failing to seek a warrant before attaching a GPS device to [the employee's] car.”

That said, the court then explained that “While the search did not require a warrant, it did not comply with either the State or Federal Constitution unless it was a reasonable search.” According, the court ruled that the State has failed to demonstrate that this search was reasonable.

Use of GPS device, said the court, was conditioned on the employer first making a reasonable effort to avoid tracking the employee using a GPS device outside of business hours. Its failure to do so will result in the search, as a whole, being considered unreasonable.

Accordingly the court said that what is required in this instance is the suppression of the GPS evidence. 

However, the suppression of evidence obtained using a GPS device in this case did not to preclude the employer from disciplining the employee since only four of the 11 charges for which the employee was found guilty depended on GPS evidence. Accordingly only dismissal of those four charges was required.

The court then said that as to the others, the GPS evidence was either substantially duplicated by other records in evidence or was wholly irrelevant. Thus, whether the seven surviving charges warrant the same or a lesser penalty is a matter to be decided, in the first instance, by the Commissioner of Labor.

Accordingly, the Court of Appeals reversed the Appellate Division’s ruling and said that “charges one, two, three and six against [the employee are] dismissed, and matter remitted to the Appellate Division with directions to remand to the Commissioner of Labor for redetermination of the penalty.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04838.htm

Good faith test for job abolishment

Good faith test for job abolishment

Christian v Casey, 76 AD 835

Former employees of the City of Yonkers lost their jobs when the City planned to close it jail under its fiscal program.

The jail was never actually closed, however. It continued in operation with a reduced staff, with police officers performing some of the duties of the former employees that served in the titles of jailer or matron. When the employees sued, the Court held that municipal corporation may in good faith abolish civil service positions for reasons of economy.

The assignment of police officers to the jail was held to be a good faith effort to consolidate the arrest procedures and not an attempt to replace the former employees with newly hired personnel.

The fact that some of the duties of the former employees were being performed by police officers serving in the jail was not viewed as bad faith by the Court as “the utilization of existing personnel to carry out those duties which remained after the abolishment of the positions in the wake of a financial emergency cannot amount to a lack of good faith.”

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA

Unless the collective bargaining provides otherwise, the union decides whether it will file a grievance for an alleged violation of the CBA
2013 NY Slip Op 04411, Appellate Division, Third Department

A member of the college's faculty [MF] contended that various members of the faculty and the administration failed to follow the procedures set forth in the collective bargaining agreement [CBA] in considering him for promotion to his professional and economic detriment.

The Faculty Association filed a grievance on MF’s behalf but shortly thereafter decided withdraw its grievance. MR sued, alleging a breach of the CBA. Ultimately Supreme Court dismissed his petition, finding that MF “lacked standing” to bring the action and MF appealed that ruling to the Appellate Division.

MF argued that although he does not contend that the Faculty Association breached its duty of fair representation, he should have standing to pursue a common-law breach of contract action against his employer regarding the alleged violations of the promotion procedures.

The Appellate Division disagreed, holding that "As a general proposition, when an employer and a union enter into a collective bargaining agreement that creates a grievance procedure, an employee subject to the agreement may not sue the employer directly for breach of that agreement but must proceed, through the union, in accordance with the contract."

Although the court noted “Exceptions [to the general proposition] [1] include where the collective bargaining agreement grants an employee a right to sue directly or [2] where the union fails in its duty of fair representation,” it pointed out that MF acknowledged that he is not alleging that Faculty Association breached its duty of representation but that argued that under the CBA decisions related to promotions are excepted from the grievance procedure and, thus, he contends that he can pursue an action directly against college defendants.

Rejecting MF’s theory, the Appellate Division said that the ultimate decision granting a promotion is not subject to a grievance under the CBA in contrast to the “lengthy procedures” faculty members must follow over several years to become eligible for consideration of a promotion. Such procedures, said the court, “are set forth in the CBA and are not explicitly excepted from the grievance process.”

It is the purported failure to follow these promotion procedures that MF challenged and the CBA, said the court, “does not carve out a separate right regarding these procedures that can be enforced by an employee directly against defendants.”

The decision is posted on the Internet at: 

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_04411.htm