Hearing officer’s discontinuing the hearing prior to completion because of individual’s unruly conduct creates a problem

Hearing officer’s discontinuing the hearing prior to completion because of individual’s unruly conduct creates a problem

88 A.D.2d 907

A person serving as a hearing officer may be tempted to terminate or “shorten” a hearing because one or more of the participants becomes unruly or abusive. In such situations the “rules of procedure” should be carefully considered.

The Chairperson at the administrative hearing stopped the hearing before the employee had an opportunity to make a “statement” specifically permitted by the controlling rules of procedure because of the individual’s “personal vituperation and ... abrasive behavior, despite repeated warnings” concerning such behavior by the hearing officer.

The Chairperson then sustained the employee’s unsatisfactory service rating, which determination was later affirmed by the Chancellor of the New York City Board of Education. The employee then sued, arguing that the Board had failed to follow its own procedures.

The Appellate Division, reversing a lower court ruling to the contrary, held that the failure to provide the employee with the “Review Format” was an abuse of the Chairperson’s discretionary powers to make necessary “adjustments” in the format and insure an “expeditious and non-repetitious presentation [and] denied (the employee) a substantial right”.

The matter was then sent back to the school district with instructions that employee “be given the opportunity to exercise his right to make a presentation and statement on his own behalf as provided in the Review Format”. 

Seminar for school districts focusing on the Affordable Care Act scheduled for July 17, 2013

Seminar for school districts focusing on the Affordable Care Act scheduled for July 17, 2013

Harris Beach, a law firm, has announced that it is offering a complimentary seminar titled “De-Mystifying the Affordable Care Act [ACA]: Practical Steps You Should be Taking Now” on Wednesday, July 17th from 1:00 to 3:00 p.m. at The West Room, Reid Castle at Manhattanville College, 2900 Purchase Street, Purchase, NY 10577.

Harris Beach said that the program is “specifically designed to help clear up confusion among superintendents, business officials, HR personnel and board members over ACA employer mandates.”

 Full program details are available by clicking on the following link, “De-Mystifying the Affordable Care Act.”

To register, e-mail Jennifer Jones at jjones@harrisbeach.com or call Ms. Jones at 800-685-1429 ext. 1114.

Intentional discrimination by an employer to avoid or remedy unintentional disparate impact in employment must be based on strong evidence to believe disparate-impact liability will result if it fails to do so

Intentional discrimination by an employer to avoid or remedy unintentional disparate impact in employment must be based on strong evidence to believe disparate-impact liability will result if it fails to do so

Margerum v City of Buffalo, 2013 NY Slip Op 05104, Appellate Division, Fourth Department

Firefighters employed by City of Buffalo Department of Fire sued the City contending that it had discriminated against them  (Fire Department), commenced this action alleging that defendants discriminated against by allowing promotional eligibility lists created pursuant to the Civil Service Law to expire solely on the ground that these firefighters [plaintiffs] who were next in line for promotion, were Caucasian.

Previously, the Appellate Division had held that [1] the action taken by the City was subject to strict scrutiny and [2] the plaintiffs had failed to establish "the absence of a compelling interest," particularly because " a sufficiently serious claim of discrimination' may constitute a compelling interest to engage in race-conscious remedial action."

A short time later the United States Supreme Court decided Ricci v DeStefano (557 US 557), holding that, "before an employer can engage in intentional discrimination for the asserted purpose of avoiding or remedying an unintentional disparate impact, the employer must have a strong basis in evidence to believe it will be subject to disparate-impact liability if it fails to take the race-conscious discriminatory action."

Following Ricci, the Appellate Division affirmed an order that granted those parts of plaintiffs' motion for partial summary judgment on liability with respect to the Fire Department and the City, determining that defendants "did not have a strong basis in evidence to believe that they would be subject to disparate-impact liability if they failed to take the race-conscious action, i.e., allowing the eligibility lists to expire."

Supreme Court then conducted a nonjury trial on the issue of damages, and the City appeal from an order that awarded a total amount of $2,510,170 in economic damages and a total amount of $255,000 in emotional distress damages to the remaining plaintiffs.

The City appealed and the Appellate Division ruled that Supreme Court's awards for emotional distress were proper, but that the court erred with respect to its awards for economic damages.

The Appellate Division explained that that plaintiffs the established that their damages were proximately caused by the City's failure to promote them from the 2002 eligibility list. Thus, it its view, the plaintiffs met their burden of establishing that they would have been promoted but for the City's action in allowing the promotion eligibility lists to expire and suffered economic damages because they were not promoted.

As to the amounts of damages, the Appellate Division concluded that each amount of damages awarded for emotional distress is reasonable. However, it found that as to the awards for economic damages, Supreme Court “applied the wrong burden of proof and erred in relying on assumptions not supported by the record.”

Supreme Court had placed the burden of proof on the City to establish plaintiffs' economic damages. This was error as a plaintiff seeking, e.g., damages for loss of future earnings must "provide evidence demonstrating the difference between what he [or she] is now able to earn and what he [or she] could have earned" in the absence of discrimination.

Noting that recovery for lost earning capacity may be based on future probabilities and is not limited to actual past earnings and that a plaintiff is not required to establish loss of earnings with absolute certainty, the Appellate Division said that it is a "fundamental premise that loss of earnings or earning capacity must be established with reasonable certainty . . . and will be reduced if based upon mere speculation."

The Appellate Division then considered the evidence and expert testimony offered on the issue of economic damages and modified the Supreme Court’s determinations in whole or in part.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_05104.htm

Discontinuing the performance of a governmental operation

Discontinuing the performance of a governmental operation

Civil Serv. Employees Assn., Inc. Local 1000, AFSCME, AFL-CIO v County of Onondaga, State Supreme Court Judge Donald A. Greenwood [Not selected for publication in the Official Reports]

The Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO (CSEA) brought an Article 78 petition seeking a determination that Onondaga County acted in violation of law and in an arbitrary and capricious manner by authorizing the sale of the County owned Van Duyn Home and Hospital Facility. CSEA also alleged that the County “acted in bad faith by adopting a budget that zero-funded positions at Van Duyn.”

After considering a number of procedural issued, Judge Donald A. Greenwood addressed the merits of CSEA’s petition.

CSEA’s first claim in its petition alleged that the Department of Long Term Care Services was created by the County Charter and that the elimination of that department, along with the positions employed within it, without passing an amendment to the Charter, was arbitrary, capricious, an abuse of discretion, violative of law and in excess of the County’s jurisdiction in that the County Legislature lacked the authority to adopt a budget striking salary appropriations, thereby eliminating the operations of the department without affecting an amendment to the Charter.

In effect, CSEA contended that the action offended the doctrine of legislative equivalency, also known as the legislative equal dignity rule.* (1995). The Court of Appeals has summarized the principle by stating "to repeal or modify a statute requires a legislative act of equal dignity and import."

Judge Greenwood decided that CSEA’s argument was “both factually and legally flawed.” explaining that the County demonstrated that through the annual budget process established within the County Charter and Administrative Code, the Legislature declared its intent” to be out of the nursing home business, and abolished a number of positions related to provisions of such services at Van Duyn, and determined that the facility should be sold.” This legislative act, said the court, carries with it a strong presumption of constitutionality, including a rebuttable presumption of the existence of necessary factual support for its provisions.

In addition, Judge Greenwood said that the County demonstrated that the facts here justified the legislative decision to sell the facility while retaining operating rights, to enact a local law amending the Administrative Code to reorganize the Long Term Care Services Department and eliminate job titles effective November 30, 2013.

The court also noted that “the County is authorized to enact legislation establishing its form of government … and generally regulating its affairs, provided that such legislation is consistent with state law and [it] is empowered to establish and abolish positions of employment by resolution as part of the budget process.”**

As to CSEA’s contention that the “elimination of union jobs here constitutes a bad faith abolition of the positions,” the court said that “municipal officials are vested with authority to create and abolish positions and to adopt a budget; they also have the power and the prerogative to determine that civil service positions may be abolished in good faith for reasons of efficiency and economy in the absence of fraud, corruption or bad faith.”

As to CSEA’s claim of bad faith on the part of the County, CSEA was required to show that the positions in question were not eliminated for bona fide reasons, that savings were not accomplished or that replacement employees were hired. Judge Greenwood found that CSEA had not met this burden and dismissed its petition seeking a court order invalidating the sale of the facility and nullifying the budgetary elimination of the positions by the County Legislature..

* In Torre v County of Nassau, 86 NY2d 421, the Court of Appeals noted that the Doctrine of Legislative Equivalency requires that a position created by a legislative act can only be abolished by a correlative legislative act.

** The decision notes that the budget resolution, Resolution #160-2012, established the budget for 2013 and declared the County's policy with respect to discontinuing future provision of nursing home services and further provided for the abolition of roster positions, except for two positions established by the County Charter and Administrative Code.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_50813.htm

Employee terminated for failure to comply with the employer’s “residence” requirement

Employee terminated for failure to comply with the employer’s “residence” requirement

2013 NY Slip Op 04148, Appellate Division, Fourth Department

The City of Niagara Falls requires its employees “to reside in the City.” When the City terminated the employment of one of its employees based on her failure to comply with the City’s residence requirement, the individual filed a petition pursuant to CPLR Article 78 challenging the City’s action.

Supreme Court granted the individual’s petition; the Appellate Division reversed the lower court’s ruling on the law.

Addressing the merits of the City’s determination, the Appellate Division said that “"the proper standard for judicial review in these cases is whether the . . . determination was arbitrary and capricious or an abuse of discretion.” Here, said the court, it conclude that City’s determination that individual violated the City's residency requirement was neither arbitrary nor capricious nor an abuse of discretion.

The Local Law relied upon by the City, Local Law No. 7, as amended, defines "residency" as "the actual principal place of residence of an individual, where he or she normally sleeps; normally maintains personal and household effects; the place listed as an address on voter registration; and the place listed as his or her address for driver's license and motor vehicle registration, if any."

The Appellate Division said that it agreed with the City that the phrase "actual principal place of residence is akin to, if not synonymous with, the legal concept of domicile,' i.e., living in [a] locality with intent to make it a fixed and permanent home."**

In this regard the court found that the City had sufficiently established that individual’s "actual principal place of residence" was in the Town of Niagara rather than the City of Niagara by utillizing the services of a surveillance company.

Under these circumstances, the Appellate Division concluded that the City’s determination was neither arbitrary nor capricious because there is substantial evidence, based on the surveillance of the individual demonstrating that she "normally [slept]" at the Town of Niagara address. While the individual did produce documents listing a City residence as her address, the court decided "that evidence was not so overwhelming as to support the [Supreme] court's determination granting the petition."

Relying on the "extremely deferential" standard applied in reviewing administrative determinations, the Appellate Division decided that the City's determination that individual's actual principal place of residence was outside the City is not "without foundation in fact" and the City "rationally concluded that [individual] did not comply with the residency policy."

** See also Alexis v City of Niagara Fallsposted on the Internet at:  http://publicpersonnellaw.blogspot.com/2013/05/an-employees-satisfying-employers.html

The decision in this action is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04148.htm