Volunteer firefighters must be afforded due process in disciplinary proceedings

Volunteer firefighters must be afforded due process in disciplinary proceedings

A volunteer firefighter was suspended from active duty with the Fire Company for a period of one year, which subsequently was reduced to a suspension from active duty for a period of six months and a suspension from social functions for another period of six months.

The firefighter filed a CPLR Article 78 petition contending that the Fire Company's disciplinary proceeding failed to comply with the requirements of Civil Service Law §75 with respect to his status as an exempt volunteer firefighter.* Supreme Court remitted the matter to the Fire Company to conduct a hearing in accordance with Civil Service Law §75 and for a new determination thereafter.

The Appellate Division affirmed the result but in so doing noted the relevant provision of law was General Municipal Law §209-l and not the Civil Service Law §75.

The Appellate Division explained that "Civil Service Law §75(1)(b) provides certain procedural protections to permanent employees in the competitive class and to permanent appointee in the classified service not in the competitive class who are also exempt volunteer firefighters. The statute provides these protections to all individuals employed in classified civil service positions who fit within its definitions."

Although in this instance the firefighter was an exempt volunteer firefighter, he has not been subjected to disciplinary action by as an employee of the State as the employer or as an employee of a political subdivision of the State. The court rejected the firefighter’s argument that his status as an exempt volunteer firefighter, standing alone, entitled him to the protection of Civil Service Law §75.**

However, the Appellate Division found “no merit” in the Fire Company’s contention that it did not have to comply with the hearing requirements of General Municipal Law §209-l because this matter did not involve the firefighter's "removal" from the Fire Company. 

The court said "[A]; volunteer firefighter must be afforded due process in disciplinary proceedings” where he or she has been subjected to disciplinary action initiated by his or her Fire Company, citing Matter of Greene v Medford Fire Department, 6 AD3d 705. This, said the court, is true whether the penalty that is ultimately imposed entails the firefighter's permanent removal from his or her position, or a suspension from the position.”

The court pointed out that General Municipal Law §209-l(5) provides that "[t];he officer or body having the power to remove the person charged with incompetence or misconduct may suspend such person after charges are filed and pending disposition of the charges, and after the hearing may remove such person or may suspend him or her for a period of time not to exceed one year" (emphasis supplied by the court).

The Appellate Division found that the plain meaning of this provision is that a volunteer firefighter may only be temporarily suspended, without a hearing, from the time that the charges are filed until the ultimate disposition of the charges, but that a hearing is required to actually dispose of the charges, and that a final penalty of suspension, not to exceed one year, may only be imposed after that hearing. Accordingly, the Fire Company was required to comply with the procedures set our in General Municipal Law §209-l

Thus, the Appellate Division ruled that Supreme Court “properly remitted the matter to the Fire Company for further proceedings, including a hearing on the charges preferred against the [firefighter], and a new determination thereafter.

* The qualifications for certification as an exempt volunteer firefighter are set out in §200 of the General Municipal Law. General Municipal Law §202 provides for a certificate to be issued to a person qualified to be an exempt volunteer firefighter.

** See Civil Service Law §75[1];[b]).

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Unsatisfactory performance rating

Unsatisfactory performance rating 
2014 NY Slip Op 03765, Appellate Division, First Department

A second-year probationary teacher took over the class in the second week of November. The principal gave her Unsatisfactory Performance Rating [U-rating] at the end of the school year based on facts indicating a lack of progress toward implementing suggestions to improve the teaching and learning environment in the classroom, together with the principal’s view that the teacher had inherited a well-managed class without instructional and disciplinary concerns which deteriorated under the probationary teacher's leadership.

The teacher filed an Article 78 petition seeking a court order annulling her U-rating for the school year. Supreme Court granted her petition and remanding the matter to the New York City Board of Education for a new determination of the teacher’s performance rating for that year.

The Appellate Division unanimously reversed the Supreme Court ruling “on the law,” explaining that on the records presented the teacher failed to demonstrate that the U-rating was arbitrary and capricious, or made in bad faith.

The court said that the record showed a rational basis for the conclusion that the teacher’s performance was unsatisfactory as evidenced by the three formal classroom observation reports describing her performance in class management and engagement of students. While the teacher asserted that she did not receive any mandatory pre-observation conferences before any of her classroom observations, she has not established that the U-rating was made in violation of a lawful procedure or substantial right

The teacher also alleged that she was never provided a curriculum or a professional development plan, that the school's administration did not help her manage the class's continued disciplinary problems and that no member of the administration modeled lesson plans for her. However, said the court, the record established that she had received professional support and that she had not sufficiently progressed during the year.

As examples, the Appellate Divisions noted that the teacher had been observed in the classroom three times and had received unsatisfactory ratings for the last two observations. Further, each observation was followed a report indicating areas for improvement and which set out specific recommendations for addressing observed the deficiencies.

Another factor considered by the court: the record indicated that the teacher was provided with professional development sessions after receiving her first unsatisfactory report but the same instructional deficiencies continued to appear in the next observation report, indicating that the teacher “had not implemented the recommendations for improvement.”

BLACK LETTER law may not be that black

BLACK LETTER LAW may not be that black
Source: New York Times article by Adam Liptak

In an article captioned "Final Word on U.S. Law Isn’t: Supreme Court Keeps Editing" that appeared in the New York Times dated May 24, 2014, Adam Liptak introduces the subject to the reader as follows:

“WASHINGTON — The [United States] Supreme Court has been quietly revising its decisions years after they were issued, altering the law of the land without public notice. The revisions include “truly substantive changes in factual statements and legal reasoning,” said Richard J. Lazarus, a law professor at Harvard and the author of a new study examining the phenomenon.”

Professor Lazarus’ article, now in draft, is scheduled for publication in the December 2014 issue of the Harvard Law Review.

Mr. Liptak’s article is posted on the Internet at:

http://mobile.nytimes.com/2014/05/25/us/final-word-on-us-law-isnt-supreme-court-keeps-editing.html?from=us

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Lying to investigators

Lying to investigators
2014 NY Slip Op 03623, Appellate Division, First Department

A New York Police Officer challenged her dismissal from her position as a police officer. The Appellate Division unanimously denied her petition, noting that “The penalty of dismissal does not shock the conscience in that petitioner was found to have engaged in serious misconduct, and admitted other less serious charges committed during her short career as a police officer”.

The court found that there was substantial evidence to support finding her guilty of certain disciplinary charges, including her admissions that she lied to federal agents conducting a drug trafficking investigation.

In Bryson v. United States, 396 U.S. 64 (1969), the United States Supreme Court said: "Our legal system provides methods for challenging the Government's right to ask questions - lying is not one of them. A citizen may decline to answer the question, or answer it honestly, but he cannot with impunity knowingly and willfully answer with a falsehood."

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Teacher’s prior unblemished record of service did not mitigate imposing termination as the penalty after being found guilty of professional misconduct and other charges

Teacher’s prior unblemished record of service did not mitigate imposing termination as the   penalty after being found guilty of professional misconduct and other charges

2014 NY Slip Op 03210, Appellate Division, First Department

A tenured schoolteacher [Teacher] was found guilty of a number of disciplinary charges alleging professional misconduct, neglect of duty, failure to follow procedures and carry out duties, and incompetent and inefficient service during two school years over a two-year period.

Teacher challenged the Department of Education’s decision to terminate her. Supreme Court vacated the termination and remanded the matter to the Department for its determination of a lesser penalty.

The Appellate Division reversed the lower court’s ruling, noting that the Hearing Officer upheld many of the charges and specifications lodged against Teacher, which findings were not challenged on appeal.

Furthermore, said the court, the evidence showed that notwithstanding Teacher's prior unblemished record of service, she continued to blame others and refused to accept responsibility for her failure to effectively manage her classroom and deliver effective instruction and was unwilling to implement any of the school administration's suggestions for improvement.

The Appellate Division held that under the circumstances the penalty of termination “does not shock one's sense of fairness,” applying the so-called Pell standard [Pell v Board of Education, 34 NY2d 222].

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