Court annuls an educator’s unsatisfactory annual performance rating after finding the rating arbitrary and capricious and lacking a rational basis.

Court annuls an educator’s unsatisfactory annual performance rating after finding the rating arbitrary and capricious and lacking a rational basis.

2013 NY Slip Op 51868(U), Supreme Court, New York County, Judge Michael D. Stallman [Not selected for publication in the Official Reports] 

A tenured teacher [Educator] at a New York City public school received an overall unsatisfactory rating (U-rating) for the school year. Educator appealed his U-rating to the Chancellor's Committee. Following hearings, the Chancellor's Committee recommended that Educator’s U-rating be sustained.

The Chief Academic Officer, as the Designee for Chancellor Dennis M. Walcott, denied Educator's appeal, stating that “the appeal of [the Educator’s] rating of Unsatisfactory' for the period … has been denied and the said rating is sustained as a consequence of [Educator's] failure to demonstrate professional growth

Educator responded by filing an Article 78 petition seeking a court order annulling the U-rating.

In the words of State Supreme Court Judge Michael D. Stallman, “The issue presented is whether [the New York City Department of Education] acted arbitrarily and capriciously in determining that [Educator] should receive an overall U-rating based on three incidents (and related unsatisfactory comments), even though [Educator] received otherwise satisfactory comments in his annual professional performance review and satisfactory ratings in all his formal classroom observations.”

The Judge Stallman said that the Chancellor's Committee found that Educator failed to follow protocol, but not for the specific reason set forth in "the disciplinary letter," i.e., that petitioner did not request a personal day two days in advance. Rather, said the court, the Committee found that Educator did not follow protocol by not reporting to the Assistant Principal of Organization that he might need a Personal Business Day the next day, even though he had informed his immediate supervisor that he might not be able to work on that day.

Further, the court found there was uncontroverted testimony that Educator's daughter suffered an illness the night before Educator's absence. Thus, said the court, Educator could not have given two days' advance notice and, therefore, the determination that Educator failed to follow school protocol was taken without regard to the facts, and thus was arbitrary and capricious.

Accordingly, said the court, Educator’s overall U-rating for the school year must be evaluated based on only two incidents and the issue presented is whether these incidents constitute a rational basis for an overall U-rating for the entire school year.

The Department of Education did not claim that criteria exists for determining whether one or two unsatisfactory comments on a teacher's annual professional performance review may justify an overall U-rating nor did the Human Resources Handbook, "Rating Pedagogical Staff Members" contain any criteria on that issue. Further, the court explained, the Department “offer no explanation as to why [Educator], who received otherwise satisfactory comments in his annual performance review and satisfactory ratings in all his formal classroom observations, warranted a U-rating for the entire school year.

Although substantiated misconduct in the workplace, such as a lack of civility in dealings with school personnel and supervisors, or insubordination, may support an overall U-rating, the Department did not contend that the incidents giving rise to the U-rating themselves were so egregious as to warrant an overall U-rating.

Judge Stallman also noted that the Chancellor's letter denying Educator’s appeal was “at odds” with the circumstances here in that Chancellor appears to fault the Educator for not having demonstrated "professional growth" while Educator’s ”U-rating for the entire year is based on three separate incidents, with no documented recurrences.” The absence of further similar, documented incidents, said the court, would suggest improvement in Educator's conduct, i.e., "growth."

While “disciplinary letters” placed in Educator's file warned Educator that "this may lead to further disciplinary action, including an unsatisfactory rating which may result in your termination," Judge Stallman ruled that “to the extent that the overall U-rating was imposed as a penalty, based on the documented incidents, the overall U-rating is so disproportionate to [Educator’s] behavior on three isolated incidents as to shock the judicial conscience,” explaining that the overall U-rating for the entire school year was given “because of one absence, one lateness, and two words.”

Judge Stallman held that the determination of the Chancellor sustaining Educator's U-rating "based on three incidents … was arbitrary and capricious” and granted Educator’s petition and annulling the U-rating.

The court said it was not remanding the matter to the Department as “Remand is not warranted because this is not a situation where the U-rating was annulled due to procedural deficiencies in the review process that are capable of being corrected upon remand.”

In his “Conclusion,” Judge Stallman said that the Department “offered no explanation as to why two incidents in the face of otherwise satisfactory ratings and satisfactory comments are sufficient to warrant an overall U-rating. The lack of an explanation under these circumstances renders the determination arbitrary and capricious and lacking a rational basis. To the extent that [Educator’s] overall U-rating was imposed as a disciplinary measure, the overall U-rating was a penalty so disproportionate to the subject incidents that it shocks the judicial conscience.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_51868.htm

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Reassignment of unit work to nonunit employees an improper practice under the Taylor Law

Reassignment of unit work to nonunit employees an improper practice under the Taylor Law

Monroe County v New York State Pub. Empl. Relations Bd., 2013 NY Slip Op 07362, Appellate Division, Fourth Department

The Monroe County Deputy Sheriff's Association, Inc. [MCDS] filed an improper practice charge with the Public Employment Relations Board [PERB] alleging the Monroe County Sheriff's Office [Sheriff's Office] assigned non-MCDSA members to perform certain security screening work at the Monroe County Jail and the Monroe County Correctional Facility that had previously been performed exclusively by MCDSA members.

Following a hearing, the Administrative Law Judge [ALJ] determined that the Sheriff’s Department had violated Civil Service Law §209-a (1)(d) by assigning the duties of security screening at the jail and at the correctional facility to non-MCDSA employees. The Sheriff’s Department appealed but PERB denied the exceptions it filed and affirmed the ALJ's decision.

According to PERB’s ruling, the Sheriff’s Office had violated Civil Service Law §209-a (1)(d), in that [1] the work in question had been reassigned to non-MCDSA members, [2] that the reassigned tasks were substantially similar to those previously performed by MCDSA members, and [3] that the qualifications for the job at issue had not changed significantly

The Sheriff’s Office filled a CPLR Article 78 petition challenging PERB’s decision.

The Appellate Division sustained PERB’s determination, indicating that it was supported by substantial evidence, rejecting the Sheriff’s Office’s “public policy” argument. The court then provided for the enforcement of PERB’s order.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07362.htm
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Police officer terminated after being found guilty of possessing and ingesting cocaine

Police officer terminated after being found guilty of possessing and ingesting cocaine
2013 NY Slip Op 07262, Appellate Division, First Department

The Appellate Division confirmed the disciplinary penalty imposed on a New York City Detective – termination from the force - found guilty of possessing and ingesting cocaine.

The court said that there was substantial evidence supporting finding the detective guilty of the charges, including a positive random drug test results, and there was no basis for  “disturbing the Hearing Officer's credibility determinations.”

Citing Trotta v Ward, 77 NY2d 827, the Appellate Division said that the penalty imposed did not shock its sense of fairness as the detective "is accountable to the public for the integrity of the Department."

The Appellate Division also noted that it had considered the individual’s concerns about the impact his disciplinary termination has on his retirement benefits and found them “unavailing.” Section 13-173.1 of New York City’s Administrative Code requires an employee to "be in service" on the effective date of his or her retirement or vesting of retirement benefits. If the employee is not "in service" on that date, he or she forfeits his or her retirement benefits.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07262.htm

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A municipality may rescind its decision to defend and indemnify an employee being sued for acts or omission that occurred performing official duties if the individual fails to cooperate

A municipality may rescind its decision to defend and indemnify an employee being sued for acts or omission that occurred performing official duties if the individual fails to cooperate
Lancaster v Incorporated Village of Freeport, 2013 NY Slip Op 07652, Court of Appeals

The Court of Appeals ruled that a municipality, here the Village of Freeport, may withdraw from its defense and indemnification obligations otherwise required under provisions of the Freeport Village Code §130-6 adopted pursuant to Public Officers Law §18* in the event current and former municipal officials and officers being sued in a civil action decline to accept a reasonable settlement offer. Further the court said that “First Amendment concerns with respect to the settlement's nondisclosure clause do not warrant a different conclusion.”

However, §130-6 of the Code provided that the Village's duty to defend and indemnify "shall be conditioned upon: . . . the full cooperation of the employee in the defense of such action or proceeding against the Village based upon the same act or omission"

According to the decision, the Freeport Board of Trustees authorized the Village to defend and indemnify the employees named in the civil action and retained separate counsel to represent the Village and employees in the litigation.

Subsequently the Village's counsel began settlement negotiations with the plaintiffs and an agreement whereby the plaintiffs would dismiss the actions against the Village in return for $3,500,000 paid over six years. In addition, the settlement agreement included a “nondisparagement clause” and required the employees to "agree not to ever interfere, nor challenge or criticize the terms of either Stipulation [of Settlement] in any manner."

The employees’ counsel indicated that, in his opinion, “the nondisparagement clause constituted a "concerted effort by the Village and the plaintiffs to silence any comment by [the employees] in this matter of public concern, particularly as to those who hold public office, is misguided at best and could be construed as a threat to [the employees’] First Amendment rights.” The employees’ suggest revisions “to avoid even the impression of an effort to impinge on anyone's right to express themselves or to coerce any public official from fulfilling his/her responsibilities.”

The Village's counsel replied indicating that: the proposed settlement did not violate employees' free speech rights; the settlement was advantageous for employees §18; and refusal would be patently unreasonable and a breach of their duty to cooperate under the Public Officers Law** and Village Code.

The employees refused to settle. The Board subsequently met in executive session and resolved to withdraw providing for the employees’ defense and indemnification. However, the employees continued to litigate the actions at their own expense and subsequently initiated a “hybrid Article 78 proceeding and declaratory judgment action seeking a judgment (1) vacating the withdrawal; (2) directing [the Village] to provide a defense; and (3) declaring invalid the Village's disclaimer of any further obligation to defend [the employees].”

Supreme Court denied the petitions and dismissed the proceedings, rejecting the employees’ arguments that “the Village had infringed their First Amendment rights, improperly withdrawn the defense and indemnification for lack of cooperation, or violated the Open Meetings Law.” The Appellate Division sustained the Supreme Court ruling and the Court of Appeals affirmed.

The Court of Appeals rejected the employees’ argument that (1) the Village violated their free speech rights by withdrawing the defense and indemnification; (2) their refusal to settle did not constitute a failure to cooperate justifying revocation of the defense and indemnification under Public Officers Law §18; and (3) the Board violated the Open Meetings Law by withdrawing the defense and indemnification in executive session.

The Court of Appeals said that the employees had advance two argument: [1] the requirement of a nondisparagement clause was an impermissible prior restraint on free speech, and [2] penalizing the employees for refusing to refrain from criticizing the settlement was unconstitutional retaliation. The court found neither argument persuasive.

The court noted that the evidence does not show the Village to have actively sought to restrict the employees’' speech. If, on the other hand, were there. for example, that as part of the settlement, the Village induced the plaintiffs to include the nondisparagement clause in the settlement with employees, said the court, this might be a different case.

The Court of Appeals explained that the plaintiff’s inclusion of the nondisparagement clause in the settlement offer was not a prior restraint on speech as plaintiff was a private party and entitled to offer settlement on whatever terms it saw fit. Had employees accepted the settlement and breached its terms, only the plaintiff, not the Village, could have sued to enforce it.

As the employees’ claim that the Village's "threat" to withdraw the defense and indemnification a prior restraint on speech, the Court of Appeals noted that "[T]he First Amendment prohibits government officials from encouraging the suppression of speech in a manner which can reasonably be interpreted as intimating that some form of punishment or adverse regulatory action will follow the failure to accede to the official's request." Here, however, the reason the Village threatened to withdraw funding was to end the litigation and save public funds, rather than to suppress speech.

The court also observed that the withdrawal of it obligation to provide for the employees’ defense and indemnification was not a prior restraint on speech but rather a response to employees' failure to cooperate. It was not a restraint on what petitioners could say in the future as the employees were free to continue litigating and criticize the settlement as they pleased.

The Court of Appeals affirmed the lower courts’ decisions, Judge Pigott dissenting.

* Presumably the same ruling would control with respect to officers and employees of the State as the employer seeking “defense and indemnification” pursuant to §17 of the Public Officers Law in any civil action or proceeding in any state or federal court arising out of any alleged act or omission which occurred or is alleged in the complaint to have occurred while the officer or the employee was acting within the scope of his or her public employment or duties

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** §17.5 of the Public Officers Law provides, in pertinent part, “The duty to defend or indemnify and save harmless prescribed by this section shall be conditioned upon: … (ii) the full cooperation of the employee in the defense of such action or proceeding and in defense of any action or proceeding against the public entity based upon the same act or omission, and in the prosecution of any appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_07652.htm
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Police Department's policy of requiring a police officer who discharges a firearm causing death or personal injury to submit to a Breathalyzer test sustained

Police Department's policy of requiring a police officer who discharges a firearm causing death or personal injury to submit to a Breathalyzer test sustained

Patrolmen's Benevolent Association of the City of New York, Inc., v New York City Police Department, Raymond W. Kelly, Police Commissioner, US Circuit Court of Appeals, 2^nd Circuit, Docket No. 12-3089

The Patrolmen's Benevolent Association of the City of New York, Inc., appealed the District Court’s granting summary judgment dismissing its petition challenging the New York City Police Department’s [NYPD] administration of a Breathalyzer test to any officer whose discharge of his firearm within New York City results in death or injury to any person.

The Circuit Court of Appeals denied the PBA’s appeal, holding that such testing “is reasonable under the special needs doctrine" and that [the PBA’s] Fourth Amendment challenge "fails as a matter of law.”

The “Special Needs” Doctrine is an exception to the Fourth Amendment's protection against unreasonable searches and seizures. Typically when law enforcement seek to discover evidence of criminal wrongdoing, “reasonableness” generally requires the officer first obtaining of a judicial warrant supported by probable cause.

The court said that “neither a warrant nor probable cause, nor, indeed, any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance” and “[w]arrantless, even suspicionless, searches can be constitutionally reasonable where 'special needs, beyond the normal need for law enforcement' are present." However, warrantless, suspicionless searches is “closely guarded” and a court must conduct a “close review of the scheme at issue” in light of “all the available evidence” to determine its “primary purpose.”

The tests applied by the Circuit Court in holding that the “Special Needs Doctrine” applied in this instance were:

1. Sobriety is a fitness-for-duty condition of employment with the NYPD and a sobriety determination serves special needs distinct from criminal law enforcement, specifically, personnel management of, and maintaining public confidence in, the NYPD;

2. NYPD's interest in these special needs is not compatible with the warrant requirement applicable to criminal investigations; and

3. NYPD's interest in these special needs sufficiently outweighs the privacy interests of tested police officers as to render warrantless, suspicionless testing constitutionally reasonable.

The court’s conclusion: these special needs “greatly outweigh officers' reduced expectation of privacy with respect to alcohol testing at the time of any firearms discharge causing death or personal injury,” thereby rendering warrantless, suspicionless testing constitutionally reasonable as a matter of law.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/8f207a1c-113c-4011-b240-6e49dc649f4e/2/doc/12-3089_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/8f207a1c-113c-4011-b240-6e49dc649f4e/2/hilite/

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