The appointing authority is not required to read every page of the transcript taken at a disciplinary hearing

The appointing authority is not required to read every page of the transcript taken at a disciplinary hearing

31 AD3d 860

The Appellate Division, Third Department, affirmed the termination of a State Trooper after the Trooper was being found guilty of making unwanted sexual advances involving two female coworkers, rejecting his contention that the appointing authority “blindly accepted” the findings and recommendation of the disciplinary hearing Board rather than undertake an independent review of the evidence.

Significantly, the court said that the appointing authority was not required to read all 1,228 pages of the hearing transcript and each document submitted in the course of the hearing, citing Matter of Taub v Pirnie, 3 NY2d 188, 195 [1957).

In this instance, the court commented, the Trooper failed to demonstrate that the appointing authority "made no independent appraisal and reached no independent conclusion”, quoting Matter of Kilgus v Board of Estimate of City of N.Y., 308 NY 620, 628 [1955].

The Appellate Division also ruled that charges filed against the Trooper were not time barred since the Civil Service Law provides an exception to an 18-month statute of limitations in which to commence disciplinary proceedings if the charged misconduct "would, if proved in a court of appropriate jurisdiction, constitute a crime" (Civil Service Law §75[4]).

The court determined that misconduct alleged in one charge filed against the Trooper, if proven in a court of law, would constitute the crime of gender abuse in the third degree (see Penal Law §130.55) and thus this charge fell within the statutory exception and was not time barred.

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05274.htm

Out of Title Work

Out of Title Work

Lake City Police Club v City of Oswego, 31 AD3d 1159

Noting the well-established principle that out-of-title work creates no automatic right to reclassification, the Appellate Division, citing Matter of McGuinness v New York State Off. of Ct. Admin., 61 NY2d 279, 281, held that the City of Oswego was not required to designate an employee of the Oswego County District Attorney’s office a detective notwithstanding the fact that the individual had been working out-of-title as a detective in the District Attorney’s office.

Further, the court obseved that “Civil Service Law §58(5) expressly provides, in relevant part, that it shall not apply to "the investigatory personnel of the office of the district attorney in any county.”

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2006/2006_05442.htm

Project Sunlight to give public access to database of who appears before state departments and agencies

Project Sunlight to give public access to database of who appears before state departments and agencies

Source: Office of the Governor

On July 26, 2013 Governor Andrew M. Cuomo announced the launching of the Project Sunlight database on the Internet at projectsunlight.ny.gov, a searchable database providing an in-depth view of the individuals and entities appearing before New York State government entities concerning non-legislative matters

Project Sunlight lists meetings between government officials and outside individuals, entities, and their internal or external representatives related to state procurement, rate-making, regulatory matters, agency-based judicial or quasi-judicial proceedings, and the adoption or repeal of rules and regulations.

Lobbying appearances related to passage of the budget or legislation are not covered by Project Sunlight, as they are already the subject of regulation by the Joint Commission on Public Ethics pursuant to the State’s lobbying laws. .

 A Project Sunlight Policy was developed to facilitate reporting and to clarify what is and is not reported in the database:

Meetings Included in Project Sunlight:	Meetings NOT Included in Project Sunlight:
Appearances related to state procurement	Appearances for the sole purpose of requesting information
Appearances related to rate-making	Written or telephone communications
Appearances related to regulatory matters	Appearances regarding legislation or the budget, or any intergovernmental interactions
Appearances related to agency-based judicial or quasi-judicial proceedings	Appearances that are treated as confidential pursuant to federal or state law, or which, if disclosed, could endanger the life or safety of any person.
Appearances related to adoption or repeal of rules and regulations	Participation in meetings that are open to the public (and thus already reported elsewhere)

In 2007, then Attorney General Cuomo launched a Project Sunlight initiative now known as NYOpenGovernment.com to create the state’s first-ever online database of information related to campaign finance, lobbying activity, state spending, and state contracts.

Educator claiming a preferred list should be used to fill a vacancy has the burden of demonstrating that the two positions are similar within the meaning of Education Law §3013

Educator claiming a preferred list should be used to fill a vacancy has the burden of demonstrating that the two positions are similar within the meaning of Education Law §3013

Matter of Michelle McDougall and the Schuylerville Central School District, Decisions of the Commissioner of Education, Decision 16505

Several positions were abolished by the school board due to budget reductions. The position encumbered by Michelle McDougall, a K-6 assistant principal, was among those abolished and her name was placed on a preferred list.

Ms. McDougall subsequently applied for a vacancy the position of K-12 Director of Curriculum, Instruction and Professional Development [Director] in response to a notice of vacancy posted by the school district. When another applicant was selected for the position, Ms. McDougall appealed the board’s action, contending that “the duties of her position as a K-6 assistant principal were substantially similar to the duties of the vacant Director position and pursuant to Education Law §3013, she was entitled to be reinstated to that position.*

The Commissioner of Education dismissed Ms. McDougall’s appeal on both procedural and substantive grounds.

As to the procedural issue, the Commissioner said that Ms. McDougall failed to “join necessary parties.” A party whose rights would be adversely affected by a determination of an appeal in favor of Ms. McDougall is a necessary party and must be joined as such.

Although Ms. McDougall had named “John/Jane Doe as a person to be subsequently named” in the caption, the Commissioner said that the record indicates that at the time Ms. McDougall commenced her appeal, an individual had been appointed by the board to the Director position. As that individual’s rights would be adversely affected if there was a decision in favor of Ms. McDougall as a result of her appeal and that individual had not been named or served with this appeal, the Commissioner said that he must dismiss the appeal for failure to join necessary parties.

However, said the Commissioner, Ms. McDougall's appeal would have been dismissed on the merits had it not been necessary to dismiss it because a necessary party had not been joined.

Noting that Ms. McDougall did not dispute board’s decision to abolish her position as K-6 assistant principal, the Commissioner rejected Ms. McDougall s contention that she was entitled to be reappointed to the Director position.

The Commissioner explained that although Education Law §3013(3)(a) governs the rights of a former employee to re-employment, it provides, in pertinent part, that in the event office or position is abolished … the person filling such position at the time of its abolishment … shall be placed upon a preferred eligible list of candidates for appointment to a vacancy that then exists or that may thereafter occur in an office or position similar to the one which such person filled ….”

Accordingly, in order for Ms. McDougall to be entitled to appointment to a vacant position from the preferred list, the vacant position must be similar to that of her former position. The test to ascertain whether the two positions are “similar” is whether more than 50 percent of the duties of the vacant position are those which were performed by Ms. McDougall in her former position.

Ms. McDougall has the burden of proving that a majority of the duties of the Director position are similar to those of her former position, assistant principal, K-6. Although, explained the Commissioner, the standard of what is similar is flexible and is not to be applied mechanically, the two positions must be in the same tenure area.

Ms. McDougall’s former position was in the K-6 assistant principal tenure area and the Director position is in the K-12 Director of Curriculum, Instruction and Professional Development tenure area, the Commissioner said that Ms. McDougall would have no rights under Education Law §2510(3)(a) to be appointed to the Director position if it is a different tenure area.

Ms. McDougall had the burden of establishing that the Director position is in the K-6 assistant principal tenure area. Finding that she had failed to meet her burden of establishing that the duties of the position of Director of Curriculum, Instruction and Professional Development are similar to those of a K-6 assistant principal, for purposes of Education Law §§2510(3) (a) and 3013(3) (a).

Further, the Commissioner noted that “it appears from the record that [Ms. McDougall] spent 75% of the time in her position as an assistant principal evaluating staff and disciplining students while less than 30% of the Director’s time will be spent on these functions.”

The Commissioner concluded that Ms. McDougall did not met her burden of proving that the duties of the two positions were similar within the meaning of Education Law §3013(3)(a) or that the two positions were in the same tenure area. Accordingly, the Commissioner ruled that Ms. McDougall was not entitled to appointment to the position of K-12 Director of Curriculum, Instruction and Professional Development from the preferred list.

* Civil Service Law §81 sets out the rights of employees in the classified service with respect to use of preferred lists for the purpose of reinstatement of employees laid-off from their position to the same or a similar position, or a position in a lower grade.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16505.pdf

=========================

The Layoff, Preferred List and Reinstatement Manual - a 645 page e-book reviewing the relevant laws, rules and regulations, and selected court and administrative decisions is available from the Public Employment Law Press. Click On http://nylayoff.blogspot.com/for additional information about this electronic reference manual.

=========================

Terminated employee’s work-related dishonest constitutes disqualifying misconduct for the purposed of eligibiity for unemployment insurance benefits

Terminated employee’s work-related dishonest constitutes disqualifying misconduct for the purposed of eligibiity for unemployment insurance benefits

2013 NY Slip Op 05499, Appellate Division, Third Department

The claimant for unemployment insurance was terminated from her position because she [1] took a computer cord from the workplace without permission so that she could use it on her personal computer at home and [2] using the employer's company cellular phone for her personal use in violation of the employer's policy, causing the employer to incur additional charges for the excess minutes.

The Unemployment Insurance Appeal Board disqualified her from receiving benefits, holding that the claimant was terminated from her employment for disqualifying misconduct.

The Appellate Division sustained the Board’s determination, noting that "An employee's apparent dishonesty, including the theft of property, has been held to constitute misconduct disqualifying him or her from receiving unemployment.”

Under the circumstances, said the court, substantial evidence exists in the record supporting the Board's ruling that claimant's employment "ended under disqualifying circumstances."

The decision is posted on the Internet at:

http://www.courts.state.ny.us/reporter/3dseries/2013/2013_05499.htm