Fraternization on the job

Fraternization on the job

OATH Index No. 391/14

Department of Correction (DOC) brought charges against a correction officer relating to her relationship with an inmate, the father of her children.

OATH Administrative Law Judge Alessandra F. Zorgniotti found that the officer failed to notify DOC about her pre-employment relationship with the inmate, brought her cell phone on post to speak with him, and engaged in unauthorized financial dealings and discussed official business with him.

AJJ recommended that the correction officer be termination from employment.

Other disciplinary actions taken against employees as a result of alleged fraternization on the job are posted on the internet at:

http://publicpersonnellaw.blogspot.com/2012/03/applying-employers-anti-fraternization.html

http://publicpersonnellaw.blogspot.com/2010/01/correction-officer-dismissed-after.html

http://publicpersonnellaw.blogspot.com/2012/02/hearing-officer-recommends-correction.html

and

http://publicpersonnellaw.blogspot.com/2010/02/hearing-officer-recommends-termination.html

Decision 391/14 is posted on the Internet at:

http://archive.citylaw.org/oath/14_Cases/14-391.pdf
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BOCES takeover of school district positions

BOCES takeover of school district positions

Decisions of the Commissioner of Education, Decision No. 16,592

A tenured certified physical education and health teacher [Petitioner] taught in a .2 physical education and .8 health position. Subsequently the school district reduced her position to a .5 health teacher position and ultimately Petitioner was notified that “due to fiscal resources” the board had adopted a resolution abolishing the .5 position and that her name would be placed on a preferred eligible list.

Learning that teachers employed by a BOCES would teach physical education in kindergarten through fifth grade in the district in the following academic year, Petitioner filed an appeal with the Commissioner of Education contending that the school board had  “improperly circumvented her tenure and seniority rights” by making an improper arrangement with the BOCES to provide teachers to teach the courses she had previously taught.

In addition, Petitioner alleged that the school district “improperly assigned” another physical education teacher in the district to teach seven physical education classes in violation of the terms of the relevant collective bargaining agreement.

Petitioner also argued that because BOCES took over “a single teaching job” and not the district’s entire physical education program, there was no permissible BOCES takeover within the meaning of Education Law. 

After addressing a number of procedural matters, the Commission addressed the merits of Petitioner’s allegations and dismissed her appeal.

Noting that Petitioner had the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which Petitioner sought relief, the Commissioner held that Petitioner failed to meet these burdens.

The Commissioner explained that Education Law §1950 provides that a BOCES “for the purpose of carrying out a program of shared educational services in the schools of the supervisory district ... at the request of component school districts and with the approval of the Commissioner of Education,*may provide certain services on a cooperative basis, including physical education services.”

Further, said the Commissioner, “prior case law has held that an entire tenure area need not be transferred to a BOCES in order to constitute a permissible BOCES takeover.”

Accordingly, the Commissioner ruled that the school district’s transfer of its pre-kindergarten through fifth grade physical education classes to the BOCES, while retaining physical education for grades six through twelve constitutes a permissible takeover by the BOCES within the meaning of Education Law §3014-a.

Turning to Petitioner’s claim that the takeover was invalid because a district teacher continued to teach seven physical education classes in alleged violation of the collective bargaining agreement, the Commissioner found that “upon the record” before him it appears that relevant provision of the district’s collective bargaining agreement permitted the challenged assignment.

Petitioner, said the Commissioner, also failed to demonstrate that the transfer to the  BOCES of the school district’s pre-kindergarten through fifth grade physical education program was for an illegal purpose.

The school district had indicated that that the takeover of the elementary physical education program by the BOCES was expected to result in a significant cost savings to the district. Although Petitioner disputed the actual cost savings, the Commissioner said that she had not met her burden of establishing that school district’s expectation of savings was a ruse for an illegal purpose.

The bottom line: The Commissioner held that “After careful review of the record, I can not conclude that the BOCES takeover of [the school district’s] pre-kindergarten through fifth grade physical education program, pursuant to Education Law §3014-a, was impermissible.” Thus abolishing Petitioner’s position and her placement on its preferred eligibile list was ruled proper.

* The records of the Education Department revealed that, pursuant to Education Law §1950(4)(d)(1) and (4)(bb), a cooperative services application was approved for the BOCES to provide, among other things, shared itinerant physical education services to component districts, including Petitioner’s school district.

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume53/documents/d16592.pdf
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Factors considered by the courts in determining if an individual is an employee or an independent contractor for the purposed of membership in a retirement system

Factors considered by the courts in determining if an individual is an employee or an independent contractor for the purposed of membership in a retirement system

2014 NY Slip Op 01234, Appellate Division, Third Department

An attorney [Petitioner] provided legal services to a central school district on a part-time basis from 1969 until his retirement in 2006. Following a review of Petitioner's relationship with the school district the Comptroller determined that Petitioner was an independent contractor and not an employee and, therefore, was not entitled to membership in the New York State and Local Employees' Retirement System and thus ineligible for retirement pension benefits.

Plaintiff appealed and the Appellate Division said that “on this record, we cannot conclude that the Comptroller's determination that Petitioner was an independent contractor and not an employee of the school district was supported by substantial evidence” and annulled the Comptroller’s decision.

The Appellate Division explained that it had recently said that “[w]here professional services are involved, the absence of direct control is not dispositive of the existence of an employer-employee relationship," citing Mowry v DiNapoli, 111 AD3d 1117. Rather, said the court, “such an employment relationship may be evidenced by control over important aspects of the services performed other than results or means"

In other words, said the court, "over-all control is sufficient to establish the employee relationship where [professional] work is concerned."

Factors considered by the Appellate Division in vacating the Comptroller’s decision included:

1. Testimony by the school district's former superintendent, who worked with Petitioner for nearly four decades, that during his tenure he supervised all staff at the school district, including Petitioner and Petitioner was required to attend all regular and special meetings as part of his employment;

2. Petitioner's biweekly paycheck included withholdings for FICA, Medicare, and federal and state income taxes;

3. Petitioner received health insurance benefits and participated in a tax shelter annuity program that was available to employees of the school district;

4. Although Petitioner did not have set hours, both he and the former superintendent testified that he was available on an as-needed basis.

5.Petitioner would receive a paycheck for a pay period even if he did not perform work for the school during that period;

6. Petitioner was required to report to the Superintendent of the school district, as well as the school district's Board of Education, and his work was subject to approval by the Board;

7. Petitioner was reappointed every year at annual reorganization meetings and took an oath of office annually; and

8. Although Petitioner used his own law office and staff, the competent testimony established that Petitioner was provided with school stationary and that, on occasion, he used school facilities and resources.

In contrast, the court said that the Retirement System relied on the testimony of two employees of the Comptroller, both of whom admitted that they neither spoke with Petitioner nor his former or current supervisors and although the Retirement System also relied on information retrieved from current employees at the school district's administrative offices, none of these employees testified at the hearing.

Noting that the Retirement System failed to provide testimony from anyone with direct knowledge regarding Petitioner's engagement with the school district, the Appellate Division ruled that the Comptroller's determination was not supported by substantial evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01234.htm
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In an action for alleged defamation by a public official distinguishing actionable fact from a protected expression of opinion is a question of law

In an action for alleged defamation by a public official distinguishing actionable fact from a protected expression of opinion is a question of law

2014 NY Slip Op 01369, Appellate Division, Third Department

As the election season approaches, this decision by the Appellate Division addressing an appeal for alleged “defamation” may prove instructive to those involved in the process of electing a candidate to public office.

A candidate for election to public office [Plaintiff] sued another individual holing public office [Defendant] for defamation after Defendant place a political ad in a newspaper that Plaintiff alleged was defamatory. Defendant action following the placement of an ad in a newspaper by an alleged committee to elect Plaintiff that Defendant, in his counter-suit, contended was defamatory.

When Defendant’s motion for summary judgment* was denied by Supreme Court, Defendant appealed.

The Appellate Division dismissed Defendant’s appeal noting that “… [Defendant] essentially acknowledged at his deposition that he had no basis for some of his accusations, and when this proof is viewed most favorably to the non-movant, [here the Plaintiff] there is adequate evidence in the record to raise a triable issue of fact regarding whether [Defendant] acted with actual malice.

The Appellate Division said that Plaintiff was a public figure and, as such, he must prove by clear and convincing evidence that the Defendant made a false statement with actual malice. The court explained that “Distinguishing actionable fact from a protected expression of opinion is a question of law in which several factors are weighed, including:

1. Whether the allegedly defamatory words have a precise meaning that is readily understood,

2. Whether the statement can be proven as true or false, and

3. Whether the context and surrounding circumstances would indicate that the comment is an opinion.”

The Appellate Division said that Defendant's statement included both a strong inference that Defendant “knows undisclosed facts that support his assertion” that Plaintiff engaged in "numerous unscrupulous dealings" when he previously served in an elective office and included an example that indicated possible unlawful abuse of that office.

Accordingly, the Appellate Division said that it agreed with Supreme Court that Defendant's statements were sufficiently susceptible to a defamatory meaning to avoid summary judgment.

* The Appellate Division noted that summary judgment dismissing a defamation action “may be avoided where the statement is a ‘mixed opinion' implying a basis in undisclosed fact or ‘pure opinion’ that accuses the plaintiff of engaging in criminal conduct."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_01369.htm

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Department not liable for injury to police officer using gym equipment during his or her lunch hour that it had not provided

Department not liable for injury to police officer using gym equipment during his or her lunch hour that it had not provided

2014 NY Slip Op 50158(U), Supreme Court, Queens County [Not selected for publication in the Official Reports]

In an action to recover damages for personal injuries allegedly sustained by a police officer [Plaintiff] when he fell due to an allegedly insufficient amount of space between the exercise equipment in the gym of a New City Police Department precinct [NYPD], State Supreme Court Judge Phyllis Orlikoff Flug noted that New York General Municipal Law (GML) §205-e provides a police officer with the right to recover for injuries sustained "while in the discharge or performance at any time or place of any duty imposed by the police commissioner, police chief or other superior officer of the police department."

Judge Flug concluded that GML §205-e was not relevant in this instance and granted the City’s motion to dismiss Plaintiff’s claim.

The court noted that in his deposition Plaintiff said that the accident occurred while he was using the gym in the precinct during his lunch break and that he was not under any duty to use the gym. Thus, explained the court, “Plaintiff fails to raise a triable issue of fact in opposition [to the City’s motion and] the mere fact that he was wearing his uniform and [was] ‘on call’ at the time of the accident does not demonstrate that he was injured while in the discharge or performance of a duty imposed on him.”

The court also ruled in favor of the City with respect to Plaintiff's common law negligence cause of action.

Here, said Judge Flug, a defendant seeking summary judgment in a slip-and-fall case has the initial burden of making a prima facieshowing that it neither created the hazardous condition nor had actual or constructive notice of its existence for a sufficient length of time to discover and remedy it.

The City had established that it did not create the allegedly defective condition by submitting the deposition testimony of a police officer employed in the building maintenance section of the NYPD who stated that, in his experience, “the precinct gyms are set up by individual officers on a voluntary basis, not the NYPD or the City.”

As Plaintiff failed to raise a triable issue of fact in opposition, the court ruled that as the police officers were acting on a voluntary basis in setting up the gym, the City cannot be held liable for their actions in allegedly creating the defective condition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_50158.htm

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