Employee terminated for use of vulgar language and conduct detrimental to the employer's interests

Employee terminated for use of vulgar language and conduct detrimental to the employer's interests

2013 NY Slip Op 06061, Appellate Division, Third Department

An employee [A] called the office to check on the attendance of a particular staff member [B] with whom she had been having difficulties. A, believing that she was speaking to another staff member, when in fact, B had answered the phone, made a statement about B that contained obscenities and a racial epithet. The employer, finding that the A’s statement had caused a disruption in the operation of the workplace, terminated her.

A’s application for unemployment insurance was rejected by the Unemployment Insurance Appeal Board after the Board ruled that A was disqualified from receiving unemployment insurance benefits because her employment was terminated due to misconduct.

A appealed the Board’s determination but the Appellate Division sustained the Board’s ruling, explaining that  “An employee's use of vulgar language and conduct that is detrimental to the employer's interests have been found to constitute disqualifying misconduct,” citing Matter of Cheeseboro, 84 AD3d 1635.

Given the undisputed facts of this case, said the court, substantial evidence supports the Board's determination that A's statement and its effect on the workplace environment constituted disqualifying misconduct.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06061.htm

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First group of Master Teachers in mathematics and science recognized by Governor Cuomo

First group of Master Teachers in mathematics and science recognized by Governor Cuomo

Source: Office of the Governor

Governor Andrew M. Cuomo recently announced the selection of 105 educators from four regions as the first group of New York State Master Teachers.* All ten regions will accept applications between November 1st and January 3rd with final selections being made in the spring.**

The New York State Master Teacher Program was established by Governor Cuomo to identify, reward, and support master math and science teachers throughout New York State. The role of master teachers as professional mentors and content experts is key to developing the current cadre of outstanding educators as well as developing skilled future teachers.

Each regional program is paired with a SUNY campus to give participants additional content exposure. The number of teachers from each region in this first selection and the respective partner SUNY campus are:

· Central New York: 36 (SUNY Cortland)
· Mid-Hudson: 19 (SUNY New Paltz)
· North Country: 21 (SUNY Plattsburgh)
· Western New York: 29 (SUNY Buffalo State)

Additionally, the SUNY pairing for the remaining regions are:

· Long Island: Stony Brook University
· Southern Tier: Binghamton University
· Capital Region: University at Albany
· Finger Lakes: SUNY Geneseo
· Mohawk Valley: SUNY Oneonta
· New York City: in partnership with Math for America

Master Teacher Fellows will:

· Receive a $15,000 stipend per year over 4 years for participation in the program (total compensation of $60,000 per Fellow).

· Engage in peer mentoring and intensive content-oriented professional development opportunities throughout the academic year.

· Work closely with pre-service and early career teachers to foster a supportive environment for the next generation of STEM teachers.

· Attend required regular cohort meetings, participate in and lead several professional development sessions each year, and participate in the training of pre-service and early career educators as part of the Master Teacher program.

*  A full list of Master Teachers and their school districts is available here.

** Applications can be submitted online at http://www.suny.edu/MasterTeacher/.

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A NYC police officer “not in service” on the effective date of his or her retirement or vesting of retirement benefits forfeits the pension portion of his or her retirement allowance

A NYC police officer “not in service” on the effective date of his or her retirement or vesting of retirement benefits forfeits the pension portion of his or her retirement allowance

2013 NY Slip Op 51252(U), Supreme Court, New York County [Not selected for publication in the Official Reports]

The Administrative Code of the City of New York requires a member of the NYC Police Retirement System to "be in service" on the effective date of his or her retirement or vesting of retirement benefits in order to be eligible for a retirement allowance. If the employee is not "in service" on that date, he or she forfeits the pension portion his or her retirement allowance.*

In this Article 78 proceeding a New York City police officer [Officer] asked the court to annul the termination of his employment as a New York City Police Department [NYPD] Police Officer following a disciplinary hearing. Officer's disciplinary termination was effective prior to a final determination regarding his application for disability retirement by the NYC Police Pension System's Board of Trustees .

In 2009 NYPD filed disciplinary charges and specifications against Officer for allegedly receiving a bribe, a violation of Penal Law §200.10, in that in 2007 Officer had accepted $400 from an acquaintance in exchange for helping him recover a car which was in NYPD custody. In 2010, NYPD filed additional disciplinary charges against Officer for allegedly failing an integrity test conducted by the Internal Affairs Bureau [IAB] involving Officer’s alleged not having properly invoiced property and allegedly not having notified IAB of the possible misconduct of other police officers.

In October 2010, Officer, who had suffered a stroke and heart attack earlier that year, applied for disability retirement under the so-called Heart Bill.** NYPD's Medical Board approved Officer’s application. However, in February 2011, Officer agreed to defer the application and final determination by the NYC Police Retirement System's Board of Trustees until the resolution of the disciplinary charges then pending, or upon "the Police Commissioner's approval of either a Negotiated Settlement or the disposition pursuant to trial."

The disciplinary hearing was conducted in July 2011 and Officer was found guilty of soliciting and accepting a bribe, and based on petitioner's plea of guilty to failing the integrity test by failing to voucher property, failing to safeguard that property and other misconduct such as transmitting a radio signal with the intent to conceal from the NYPD the existence of the property, failing to report misconduct related to the taking of the property, attempting to cover up the improper handling of the property, and trying to cover up the incident by initially failing to provide accurate information about it at an official NYPD interview.

The hearing officer recommended that Officer be terminated from his position. The Commissioner of Police accepted the hearing officer’s findings and recommendation and terminated Officer from his position.

As Officer’s termination was prior to the effective date of his retirement, he became ineligible to receive pension portion of his retirement benefits. In ruling on Officer’s CPLR Article 78 petition, Supreme Court Judge Barbara Jaffee sustained the forfeiture of the pension portion of Officer's retirement allowance, commenting that this was “a risk he took by engaging in the misconduct at issue.”

In reviewing an administrative agency's determination as to whether it is arbitrary and capricious under CPLR Article 78, said the court, the test is whether the determination "is without sound basis in reason and . . . without regard to the facts.” Further, the determination of an administrative agency, "acting pursuant to its authority and within the orbit of its expertise, is entitled to deference, and even if different conclusions could be reached as a result of conflicting evidence, a court may not substitute its judgment for that of the agency when the agency's determination is supported by the record."

Here, given the charges and findings, which rest on the credibility determinations of the hearing officer, it cannot be said, as a matter of law, that respondents' decision to terminate petitioner's employment was arbitrary and capricious.

As to the penalty imposed, Judge Jaffeet, citing Matter of Pell, 34 NY2d at 222, said that the standard for reviewing a penalty imposed after a hearing is whether the punishment imposed "is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness." 

Judge Jaffee noted that “NYPD may not terminate employee in order to prevent employee from collecting [a] disability pension, [the] pension may be denied as unintended consequence of [the] termination if [the] termination [was] made in good faith." However, the fact that Officer was terminated "after his application for disability retirement had been provisionally approved” by Medical Board did not show bad faith as Officer's disciplinary investigation was not completed until after Medical Board's determination and prior to any action being taken by the Retirement System's Board of Trustees.

Accordingly, Judge Jaffee denied Officer’s petition and dismissed the action.

* §13-240 of the New York City Administrative Code, which concerns the New York City Police Pension Fund, address the termination of membership or discontinuance of service. It provides, in pertinent part,  “Should a member discontinue city-service except by death or retirement, he or she shall be paid such part of the amount of the accumulated deductions standing to the credit of his or her individual account in the annuity savings fund as he or she shall demand.” Waldeck v NYC Employees' Retirement System, 81 N.Y.2d 804 [181 A.D.2d 412] decided with Barbaro v NYC Employees' Retirement System, [181 A.D.2d 437] addresses a similar situation involving members of the NYC Sanitation Workers' Retirement System.

** See General Municipal Law §207-k

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_51252.htm
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Service as an independent contractor does not count in qualifying for unemployment insurance benefits

Service as an independent contractor does not count in qualifying for unemployment insurance benefits

Matter of Tkachyshyn (Commissioner of Labor), 2013 NY Slip Op 06057, Appellate Division, Third Department

Volodymyr I. Tkachyshyn, a substitute teacher and math tutor, filed three claims for unemployment insurance benefits.

Although initially deemed eligible for benefits in each instance, following Appellate Division’s decision in Leazard v TestQuest, Inc., 74 AD3d 1414, the Department of Labor issued revised decisions finding that earnings in connection with tutoring services through TestQuest, Inc. was not covered employment for the purposes of qualifying for unemployment insurance benefits “given that tutors such as [Tkachyshyn] were independent contractors.”

The Appellate Division commented that in “TestQuest, Inc. tutors such as claimant were deemed by this Court to be independent contractors … which decision is conclusive and binding upon all such persons employed by TestQuest, Inc.,” citing Labor Law §620[1][b].*Thus, said the court, those earnings cannot qualify for inclusion as remuneration in the base periods to determine eligibility for unemployment insurance benefits.**

As the record establishes that Tkachyshyn did not have sufficient covered earnings to file a valid original claim pursuant to Labor Law §527 in either his base period or alternate base period for any of the three claims, the Appellate Division found that substantial evidence supports the Board's decision and dismissed his appeal.

* §620[1][b] of the Labor Law, in pertinent part, provides that the hearing officer’s “decision shall not be deemed limited in its effect to the immediate claimant making the claim for benefits but shall be deemed a general determination of such questions with respect to all those employed by such person or employer for all the purposes of this article, and such decision shall be conclusive and binding upon the claimant and such person or employer…”.

** The Appellate Division noted that “notwithstanding the absence of any fault on the part of Tkachyshyn, he was charged with a recoverable overpayment of federal emergency unemployment compensation funds. Whether Tkachyshyn was eligible for a waiver of recoverability of those benefits was referred back to the Department of Labor and was not at issue on this appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_06057.htm
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October is Cyber Security Awareness Month in New York State - ACT – Achieve Cyber security Together

October is Cyber Security Awareness Month in New York State - ACT – Achieve Cyber security Together Source: Office of the Governor - Thomas D. Smith, NYS Chief Information Security Officer

Governor Andrew M. Cuomo announced the start of Cyber Security Awareness Month in New York State and issued a proclamation in support to raise citizen awareness about cyber based threats and how to stay safe online at: http://www.dhses.ny.gov/go/proclamation2013.  The NYS Office of Information Technology Services, Enterprise Information Security Office (ITS EISO) is providing a number of educational resources to the public, including an electronic Cyber Security Awareness Toolkit.  The Toolkit includes cyber security themed posters, calendars, guides, brochures, and other content that can be downloaded to help promote and reinforce cyber safety in practical, informative, entertaining, and usable ways.  The Toolkit material may be found at www.dhses.ny.gov/ocs/awareness-training-events/#awareness. N.B. In conjunction with Cyber Security Awareness Month, the NYS ITS EISO is coordinating a statewide cyber security poster contest for students in grades Kindergarten-12.  This is a timely opportunity for school art and technology teachers to promote keeping children safe online in a fun way.  Entries may be used in state, regional, and national computer security awareness campaigns.  New York State winners will be featured on the ITS website and entered into the National Contest with the opportunity to be featured in the 2015 Cyber Security Calendar.  For more information on the poster contest, please visit http://www.dhses.ny.gov/ocs/awareness-training-events/events/2013/index.cfm and click on the Poster Contest tab. While there are many steps that can be taken to keep personal information and data secure, below are some helpful cyber security tips to follow provided by the Governor’s Office: Secure your computer:  Keep your operating system and application software updated and patched. Be sure to check that your anti-virus and anti-spyware software is running and receiving automatic updates.  Confirm that your firewall is enabled. Use Strong Passwords:  Passwords should have at least eight characters and include letters (uppercase and lowercase), numbers, and special characters.  It is important to maintain separate passwords for different accounts to reduce the likelihood that the compromise of one password will make other accounts vulnerable as well.  Developing good password practices will help keep your personal information and identity secure. Secure your online transactions:  When submitting sensitive information, look for the "lock" icon on the browser's status bar to be sure your information is sent securely during transmission.  Also be sure that "https" appears in the website's address bar before making an online transaction.  The "s" stands for "secure" and indicates that communication with the webpage is encrypted. Don't reveal personal information online:  The less information you post, the less data you make available for a cyber criminal to use in a potential attack or scam. Protect your laptop, smartphone, or other portable devices when traveling:  Just as your wallet contains lots of important and personal information that you wouldn't want to lose, so do your portable devices.  Don't let them out of your sight.  Never store your laptop in checked luggage.  If there is a room safe available at your hotel, use it to securely store your devices.  In addition, make sure you have strong passwords on these devices in the event they are lost or stolen. Be aware that public computers and public wireless access are not necessarily secure:  Cyber criminals can potentially access any information you provide, such as credit card numbers, passwords or other confidential information.  Do not conduct any sensitive transactions on public Wi-Fi sites. Do not email sensitive data:  Beware of emails requesting account or purchase information.  Legitimate businesses do not solicit sensitive or confidential information through email. Dispose of information properly:  When it's time to dispose of your computer or mobile device, make sure you have a process in place to completely erase your information or physically destroy the hard drive. Properly erasing your hard drive thwarts efforts to steal your information. More information on Cyber Security Awareness Month is posted on the Internet at: http://www.dhses.ny.gov/ocs/awareness-training-events/events/2013/index.cfm. .