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Discontinuing the services of a probationary employee

Discontinuing the services of a probationary employee

2014 NY Slip Op 05440, Appellate Division, Second Department

A New York City Department of Education probationary employee [PE] serving a position in the Unclassified Service was terminated during her probationary period. PE sued and Supreme Court directed the Department not discontinue PE’s employment as a probationer but, rather, to take some alternative action in that regard.

The Department appealed and the Appellate Division reversed the lower court’s ruling “on the law and the facts.”

The Appellate Division explained that contrary to PE’s claim, and Supreme Court’s determination, the Department “merely discontinued [PE’s] probationary service” and did not terminate her employment with the New York City Department of Education. Presumably PE had been on leave from another position with the Department and was reinstated to her former position when her services as a probationer were discontinued..

Finding that there was “a valid basis for the [Department’s] determination that the [PE’s] probationary service was unsatisfactory,” the Appellate Division ruled that “Supreme Court erred by, in effect, directing the [Department] to take some alternative ameliorative measure other than the discontinuation of her probationary service.

In contrast, were PE serving as a probationary employee but was not on leave from a position in which she had tenure, she would have been terminated from her employment with the Department as a result of her having satisfactorily completing her probationary period.

For example, with respect to employees in the Classified Service, Civil Service Law §63, in pertinent part, provides “When probationary service is required upon promotion, the position formerly held by the person promoted shall be held open for him [or her] and shall not be filled, except on a temporary basis, pending completion of his [or her] probationary term.
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Providing for the defense and indemnification of officers and employees of public entities named as defendants in civil litigation

Providing for the defense and indemnification of officers and employees of public entities named as defendants in civil litigation
2014 NY Slip Op 05510, Appellate Division, Second Department

A number of employees [Plaintiffs] of the State sued their employer and named an agency employee “in her official capacity” for damages for “intentional infliction of emotional distress, negligent misrepresentation, fraudulent misrepresentation, defamation, abuse of process, and civil rights violations pursuant to 42 USC § 1983.”

In response to the Attorney General’s motion to dismiss the complaint, Plaintiffs filed an amended complaint removing the agency and the employee “in her official capacity” as defendants and then sought to name the employee as the defendant “in her individual capacity.”

The bottom line: Supreme Court granted Attorney General’s motion to dismiss the amended complaint as “time barred” and Plaintiffs appealed.

Among the issues considered by the Appellate Division was Plaintiffs’ contention that the Attorney General “was without authority to defend” the employee in this action as she was being sued in her “individual capacity” rather than in her “official capacity.” The Appellate Division said that Plaintiffs' arguments were “without merit,” citing Public Officers Law §17[2][a])*.

§17[2][a] provides for the defense of State officers and employee 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 employee was acting within the scope of his or her public employment or duties, including the federal civil rights statutes, 42 USC 1981 and 42 US 1983.

The Appellate Division then sustained Supreme Court’s ruling that the statutes of limitations applicable to the Plaintiffs' claims” filed against the employee in her individual capacity had expired, explaining that the statute of limitations was not tolled by the doctrine of equitable estoppel as the record establishes that Plaintiffs had "timely awareness of the facts requiring [them] to make further inquiry before the statute[s] of limitations expired.”

* §18[2][a] of the Public Officers Law permits public entities other than the State as an employer to provide for the defense and indemnification of its officers and employees of public entities upon its adoption of an appropriate law, by-law, rule, regulation or resolution.
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Failure to notify superior of inmate’s not receiving his medication

Failure to notify superior of inmate’s not receiving his medication

OATH Index Nos. 591/14, & 592/14

Two correction officers [COs] were charged with failing to notify their supervisor or medical staff that an inmate had not received his medication.

The inmate had recently been admitted to the double detoxification unit, which is designated for the treatment of inmates experiencing symptoms of alcohol and opiate withdrawal. The COs removed the inmate from a line of inmates waiting to receive detoxification medication after he began to act irrationally and left him in an area away from other inmates for several hours.

The inmate, who did not receive his prescribed dosage of medication, died after a subsequent use of force involving correction officers other than the COs charged in this disciplinary action.

OATH Administrative Law Judge Astrid B. Gloade, sustained the charges that COs' performance was deficient and recommended 20 days' suspension. Dep't of Correction v. Wisher,

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Terminating a “government” retirement plan

Terminating a “government” retirement plan

Source: Employee Plans News, Issue 2014-11, dated August 4, 2014

The Internal Revenue Service August 2014 Issue of Employee Plans News has a number of articles concerning terminating an employee defined retirement plan including the following [Click on the text highlighted in color to access the information posted on the Internet):

Terminating a retirement plan

Plan amendments required before termination

FAQs regarding plan terminations

FAQs regarding partial plan termination

Also considered are Internal Revenue Code Section 401(a)retirement plan established and maintained for the employees of:

• the United States or its agency or instrumentality;
• a state or political subdivision, or its agency or instrumentality; or
• an Indian tribal government or its subdivision, or its agency or instrumentality (participants must substantially perform services essential to governmental functions rather than commercial activities.)

Other types of governmental plans include:

• 403(b) tax-sheltered annuity plans [These plans are also referred to as Tax Deferred Annuity Plans in which participation is typically limited to employees of an educational entity. See, for example, Education Law Article 8-C, SUNY’s Special Annuity Plan];
• 457 deferred compensation plans;
• qualified excess benefit arrangements; and
• Certain grandfathered 401(k) plans adopted by a governmental entity before May 6, 1986.

The IRS will also conduct a “webinar” on August 14, 2014 at 2:00, EDT, focusing on how the IRS defines the date of termination, final funding requirements, Pension Benefit Guaranty Corporation (PBGC) issues, reversions and what is needed in a notice of intent to terminate the plan.
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