Court of Claims judge held the court did not have jurisdiction to hear claims that Civil Service Law §75-b [the Whistleblower statute] has been violated

Court of Claims judge held the court did not have jurisdiction to hear claims that Civil Service Law §75-b [the Whistleblower statute] has been violated

Keskin v State of New York, NYS Court of Claims, 14 Misc3d 537

New York State’s "whistleblower" statutes” (Civil Service Law §75-b;* Labor Law §740) provide certain protections to an employee who discloses to a governmental body (Civil Service Law §75-b) or discloses or threatens to disclose to an employer or public body (Labor Law §740), information concerning a violation of a law, rule or regulation.

Kimberly Ann Keskin brought an action in the State’s Court of Claims seeking damages available to whistleblowers pursuant to Civil Service Law §75-b and Labor Law §740. As turned out, she sued in the wrong court.

Justice Philip J. Patti agreed with the State defendants that the Court of Claims "has no subject matter jurisdiction over a claim asserted under Civil Service Law §75-b," relying upon a decision by Judge John L. Bell in Taylor v State of New York (160 Misc 2d 120).

In Taylor, Justice Bell ruled that the State Legislature had not given the Court of Claims jurisdiction to adjudicate claims brought under Section 75-b. Accordingly, he concluded that “a claimant who contemplates an action under the statute would be well advised to institute an action in the Supreme Court rather than the Court of Claims.”

* §75-b 2.(a) of the Civil Service Law provides, in pertinent part, “A public employer shall not dismiss or take other disciplinary or other adverse personnel action against a public employee regarding the employee's employment because the employee discloses to a governmental body information: (i) regarding a violation of a law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety; or (ii) which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_26480.htm

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Sending notices of disciplinary charges to an accused employee

Sending notices of disciplinary charges to an accused employee

13 Misc 3d 1226(A)*

An employee was dismissed from his position with Westchester County after being found guilty of the charges filed against him by the hearing officer. The disciplinary hearing, however, was conducted in absentia.

Claiming that he had not received any written notice of the charges preferred against him as required by Civil Service Law §75, the employee sued seeking to have the disciplinary determination vacated and reinstatement to his position with salary and benefits retroactive to the date of his termination.

It appears that the Department sent the notice of disciplinary action by Certified Mail but that the envelope was returned as "unclaimed" by the United States Postal Service. The envelope also indicated that the letter was mailed to a Briarcliff Manor, NY 10501 address with no building number.

The court found that under the circumstances the employee had not been served with the written notice of disciplinary charges mandated by Section 75 of the Civil Service Law and granted the employee’s petition.

Justice Bellatoni cited DelBello v. New York City Transit Authority, 151 AD2d 479, 542 NYS2d 270 (2nd Dep't 1989) in support of his ruling. In DelBello the Appellate Division affirmed a Supreme Court decision annulling and vacating a determination terminating DelBello’s employment. In that case, hearing notices were sent to an address from which DelBello had moved and all notices were returned to the Authority unopened and marked "moved-left no address".

The Appellate Division found that because the Authority undertook no other steps to notify the DelBello of the pending charges. “Clearly mailing the notice to the petitioner's last known address was not notice reasonably calculated, under all the circumstances, to apprise DelBello’s of the pendency of the [disciplinary proceedings] and afford [him] an opportunity to represent [his] objections” said the court. In contrast, noted the Appellate Division, the Authority regarded the failure of [DelBello] to receive notice of the hearing and charges as [DelBello’s] problem”.

Justice Bellatoni rejected the Department’s argument that that even though the mailing was returned as unclaimed, it constituted reasonable notice of the charges against the employee and of the scheduled disciplinary hearing that was held in his absence.

Finding that the Department and the Hearing Officer acted in an arbitrary and capricious manner by proceeding with the disciplinary hearing in absentia, the court ruled that terminating the employee’s employment violated the requirements of Civil Service Law § 75.

Further, the court said “What is even more troubling is that [the employee] could have been served personally at his place of employment after the notice came back unclaimed.” At the very least, said the court, the Department could have inquired as to the employee’s address to ensure that the notice was properly sent.” Justice Bellatoni directed that that the matter be heard before a different Hearing Officer.

In contrast, an employee’s claim that she did not receive notice of disciplinary charges mailed to her was rebutted by employer’s evidence of proper mailings.

In a case involving the Board of Educ. of City School Dist. of City of N.Y.,** the court noted that the New York City Board of Education [BOE] sent a “notice of charges” to a tenured teacher by certified mail, return receipt requested and by regular mail.

Although the certified mail copy of the Charges was returned to BOE as “unclaimed,” the regular mail copy of the Charges was never returned. BOE subsequently again sent a written statement detailing the Charges against the teacher in accordance with Education Law §3020-a by certified mail, return receipt requested, and by regular mail.  Again the certified mail copy of the Charges was returned to BOE as “unclaimed,” but the regular mail copy of the Charges was never returned.

A third mailing was sent via certified mail, return receipt requested, and by regular mail. This time neither copy was returned to DOE.

Ultimately a Disciplinary Panel held a hearing in absentia and the teacher was found guilty of the charges and terminated. A letter advising the teacher of her dismissal was mailed to the same address used to send all of the previous letters to the teacher who subsequently acknowledges receiving it and filed a claim with BOE seeking reinstatement retroactive to the date of her termination, along with restoration of benefits.

When BOE refused to reinstate her the teacher filed a petition seeking a court order directing BOE to reemploy her and award her back salary and benefits contending that she never received the regular mailings of the Notice of Charges and the written statement detailing the Charges “because mail often gets lost in her large apartment complex.” Additionally, said the court, the teacher “denies deliberately ignoring the certified mail and maintains that she did not receive notice to pick it up [and] if she had received the Notice of Charges or the actual Charges, she would have requested a hearing in a timely fashion.”

Judge Kornreich said that “The standard in an Article 78 proceeding, the court’s role is to determine whether the challenged administrative action had a rational basis or whether it was an arbitrary and capricious action [and] the administrative action must be upheld unless it ‘shocks the judicial conscience and, therefore, constitutes an abuse of discretion as a law.”

The court found that BOE “properly mailed multiple copies of the Notice of Charges and the actual Charges. Only the certified mail copies were returned, and they were returned as unclaimed, indicating that the teacher failed to pick them up from the post office, not that they were improperly sent. Given BOE’s proof of mailings, the court was not persuaded by the teacher’s statement that she did not receive the Notice of Charges or the Charges.

In the words of the court, the teacher’s “bald assertion of non-receipt is insufficient to overcome the presumption that properly sent mail is received.” Accordingly, Judge Kornreich decided that it was not arbitrary or capricious for BOE to proceed with the inquest after properly mailing multiple letters informing the teacher of the situation and dismissed her petition.

* The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_52004.htm

** 2008 NY Slip Op 31935(U), Supreme Court, New York County, Judge Shirley Werner Kornreich [Not selected for publication in the Official Reports]. The decision is posted on the Internet at: http://www.nycourts.gov/reporter/pdfs/2008/2008_31935.pdf

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The Commissioner of Education will not assume jurisdiction of appeals filed by employees in the classified service concerning personnel matters

The Commissioner of Education will not assume jurisdiction of appeals filed by employees in the classified service concerning personnel matters

Decisions of the Commissioner of Education; Decision No. 15,473

An individual employed as an “Aide to Students with Disabilities” by the School District was terminated from his position while still serving as a probationary employee.

Contending that he was dismissed from his employment without receiving training or an evaluation, he filed an appeal with the Commissioner of Education challenging the School District’s action .

The Commissioner dismissed the individual’s appeal for lack of subject matter jurisdiction. He noted that the individual did not claim that his former position was among those certified by the Commissioner of Education as being in the unclassified service. Neither, said the Commissioner did the individual dispute the School District’s assertion that he was an employee in the classified service within the meaning of the Civil Service Law.

The Commissioner said that “It is well settled that the termination of a classified employee is not the proper subject of an Education Law §310 appeal.”

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume46/d15473.htm
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Reassignment to a different work shift

Reassignment to a different work shift

Matter of Kattaya (Commissioner of Labor) 32 AD3d 1124

Hany Kattaya was a security officer at a museum. He worked both the day shift and the night shift, preferring the night shift because he received a pay differential and free parking while working the night shift.

Due to disciplinary problems, the museum decided to assign him only to the day shift. Kattaya refused to accept this change of assignment because he would lose the night pay differential and free parking benefit and incur other expenses. He resigned from his position and applied for unemployment insurance benefits.

Kattaya’s application for unemployment insurance benefits was rejected after the Unemployment Insurance administrative law judge ruled that Kattaya had voluntarily left his employment without good cause. 

The Appellate Division, Third Department, dismissed Kattaya’s appeal, commenting, “It is well settled that dissatisfaction with one's work schedule does not constitute good cause for leaving one's employment.”

The court decided that the loss of the pay differential and free parking, and the additional cost of commuting and childcare expenses associated with working during the day, were not compelling reasons for resigning under the circumstances present in this case.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_06893.htm
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Disruptive behavior during a public meeting

Disruptive behavior during a public meeting

13 Misc 3d 64

Although the Town Board announced that members of the public would be permitted to speak during its meeting about any of the topics on the agenda, on individual insisted on speaking about items not on the agenda. Despite the Town Supervisor's warnings that the speaker would be asked to leave if he did not limit his comments to items on the agenda, the individual persisted in asking questions and making comments concerning matters not on the agenda.

When the individual refused to leave when asked to do, he was arrested and charged and convicted of trespass.

The Appellate Term affirmed the individual's conviction, noting that a government entity has a significant interest in controlling its agenda and preventing the disruption of its public meetings and such entities "may confine their meetings to specified subject matter." The decision notes that while a speaker may not be stopped from speaking because the moderator disagrees with the viewpoint he or she is expressing, he or she may be stopped if his or her speech becomes irrelevant or repetitious.

In the words of the court::

In the case at bar, defendant's questions were irrelevant to the purpose of the meeting and inappropriate for the time and place, as the public was only privileged to discuss topics set forth on the agenda. We are of the opinion that the Town Board's actions were narrowly tailored to a significant interest, to wit, addressing matters on the agenda in an orderly and efficient manner. Furthermore, rather than restrict defendant's speech completely, the Town Board merely directed him to discuss agenda-related matters.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2006/2006_26361.htm

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