The "Rule of Necessity" provides a limited exception to the requirement of an unbiased adjudicator by permitting a biased adjudicator to decide a case if, and only if, the dispute cannot otherwise be heard

The "Rule of Necessity" provides a limited exception to the requirement of an unbiased adjudicator by permitting a biased adjudicator to decide a case if, and only if, the dispute cannot otherwise be heard
Zlotnick v City of Saratoga Springs, 2014 NY Slip Op 08289, Appellate Division, Third Department

This CPLR Article 78 petition was transferred to the Appellate Division by the Supreme Court to review a determination made by John P. Franck, Commissioner of Accounts for the City of Saratoga Springs, terminating City of Saratoga Springs Real Property Clerk Mary M. Zlotnick’s employment.

Zlotnick, believing that an individual representing certain condominium owners was receiving preferential treatment from the City's Assistant Assessor, Anthony Popolizio without going through a formal grievance process initially expressed her concerns to the City's Deputy Commissioner of Accounts, Sharon Kellner-Chille, who, in turn, contacted Franck. The Commissioner met with Zlotnick and explained the difficulties that City had experienced with condominium assessments in the past and advised her that the representative* in question was participating in an informal — and entirely permissible — grievance process.

Zlotnick, however, was not persuaded by the Commissioner’s explanation and ultimately brought her suspicions regarding this procedure to, among others, the Saratoga County District Attorney and the Attorney General.

In June 2012 Franck preferred disciplinary charges against Zlotnick alleging that she had violated City policy by making personal use of the Internet during working hours, and suspended her for a period of one week without pay. A disciplinary hearing was held in August 2012 and the Hearing Officer found Zlotnick guilty of the charges and recommended a one-week suspension without pay, such penalty to be satisfied by the earlier imposed suspension without pay. Franck adopted the findings and recommendation of the hearing officer.

In the course of the hearing Zlotnick testified as to her ongoing concerns regarding the manner in which condominium assessments were being reduced. Upon reviewing a transcript of her testimony, Franck  again investigated Zlotnick's allegations and, in so doing, "looked at every [assessment] reduction from December 27, 2010 through mid August 2012 to [ascertain] if they were done properly."

Franck advised Zlotnick that additional disciplinary action would be taken against her. Subsequently Zlotnick was served with a notice of discipline setting forth five specifications of misconduct and, or, insubordination. She was suspended for 30 days without pay and after a lengthy hearing, the Hearing Officer issued a report sustaining three of the five preferred charges and recommended that Zlotnick be terminated from her employment. The Commissioner adopted the Hearing Officer's recommendation and terminated Zlotnick from her position. Zlotnick than appealed the Commissioner‘s action, contending, among other things, Franck, having investigated Zlotnick's initial allegations of preferential assessment treatment, concluded that such allegations were unfounded, preferred the resulting charges of misconduct and insubordination against her and testified at her disciplinary hearing in support of such charges — should have disqualified himself from reviewing the Hearing Officer's recommendation and rendering a final determination in this matter.

The Appellate Division found merit in these claims, noting that “whether disciplinary charges are pursued in the judicial or administrative realm, ‘[t]he participation of an independent, unbiased adjudicator in the resolution of disputes is an essential element of due process of law, guaranteed by the Federal and State Constitutions‘."

Citing Baker v Poughkeepsie City School District, 18 NY3d 714, the court said that “[a]lthough a particular individual's involvement or participation in the disciplinary process does not automatically compel his or her recusal, the case law makes clear that "individuals who are personally or extensively involved in the disciplinary process should disqualify themselves from reviewing the recommendations of a Hearing Officer and from acting on the charges." Thus, explained the court, when an officer institutes the disciplinary action and testifies at the hearing, he or she must disqualify himself or herself from reviewing the Hearing Officer's recommendations and rendering a final determination."

In an effort to nonetheless sustain the underlying determination, the Commissioner attempted to invoke the "Rule of Necessity." This rule provides a limited exception to the requirement of an unbiased adjudicator by permitting “a biased adjudicator to decide a case if and only if the dispute cannot otherwise be heard” and favors of delegating adjudicatory authority to others whenever possible.

Here, Franck contended, the only individual to whom he could have named to review the hearing officer’s determination was Deputy Commissioner Kellner-Chille and she had also provided extensive and detailed testimony in support of the charges against Zlotnick and thus the rule of necessity permitted the Commissioner to undertake that task here.

The Appellate Division disagreed. The court noted that in Gomez v Stout, 13 NY3d 182, the Court of Appeals interpreted Civil Service Law §7 (2) to "require that the power to discipline be delegated, if necessary, with the governmental department's chain of command….” here the parties debate whether, consistent with the provisions of the Saratoga City Charter, there is a body or officer to whom the Commissioner validly may delegate the power to review the report and recommendation issued by the Hearing Officer. Finding that the  Commissioner have failed to demonstrate — on this record — that no such body or officer exists, the Appellate Division said that it was unable to conclude that the rule of necessity may be properly invoked here.

The court remitted the matter to the City "for a de novo review of the present record and the Hearing Officer's recommendations by a qualified and impartial individual [or body]" to be designated by the Commissioner.“

In the course of this appeal Zlotnick raised an number of other issues that were considered by the court, including the following, that it may instructive to consider.

1. The underlying notice of discipline were so vague as to deprive Zlotnick of a fair hearing. The court, agreeing with the Hearing Officer, said that the notice of discipline and the subsequently furnished bill of particulars "could have been more illuminating" but the notice of discipline and the individual charges at issue "need only be reasonably specific, in light of all the relevant circumstances[,] to apprise [petitioner] of the charges and enable . . . her to adequately prepare a defense."

The Appellate Division concluded that “Viewing the notice of discipline, the corresponding bill of particulars and the materials supplied therewith against the backdrop of petitioner's prior disciplinary proceeding,” it was satisfied that Zlotnick was afforded adequate notice of the misconduct alleged with respect to the sustained specifications (set out in charges Nos. 1, 2 and 4) and thus this aspect of Zlotnick‘s due process claim must fail.

2. Zlotnick asserted that the Hearing Officer should have been disqualified for a myriad of reasons that generally fall under the heading of exhibiting bias or creating the appearance of impropriety.

The Appellate Division commented that "… hearing officers are presumed to be free from bias, an appearance of impropriety is insufficient to set aside an administrative determination.” The challenger must provide factual support for his or her claim of bias and prove that the outcome flowed from that bias. The court said that "[b]ased upon our review of the record as a whole, we do not find that [Zlotnick] made such a showing here.

3. Zlotnick argued that the Hearing Officer should have been disqualified due to an alleged affiliation between the Hearing Officer's spouse and respondents' counsel.

The court said that Zlotnick did not seek disqualification upon this ground at the administrative hearing and, hence, this issue is unpreserved for its review. The Appellate Division then noted that  the Commissioner averred that “he selected the Hearing Officer based upon a recommendation from a local attorney and that he did not discuss the Hearing Officer's designation with ‘any attorney or representative‘ of the law firm representing respondents in this matter prior to making such designation.”

4. Zlotnick argued that the Hearing Officer should have been disqualified based upon the fact that he presided over the first of her disciplinary hearings.

The Appellate Division rejected this argument, explaining that “absent record evidence that the Hearing Officer may have prejudged the matter under review, ‘an administrative decision maker is not deemed biased or disqualified merely on the basis that he or she reviewed a previous administrative determination and ruled against the same employee, or presided over a prior proceeding involving a similar defense or similar charges.’" To the extent that the record reflects that the Hearing Officer may have considered petitioner's overall employment record or the prior disciplinary proceeding in fashioning a penalty, the court said that it could discern no impropriety in this regard.

* The court, in a footnote, commented “the Commissioner conducted an initial investigation, spoke with [Assistant Assessor, Anthony] Popolizio and "satisfied" himself that "everything was being done above board." 

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2014/2014_08289.htm

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Sending a copy of an e-mail containing confidential agency information addressed to other supervisors to her attorney not protected by an “attorney-client” privilege

Sending a copy of an e-mail containing confidential agency information addressed to other supervisors to her attorney not protected by an “attorney-client” privilege

OATH Index No. 2614/14

A supervisor was served with disciplinary charges alleging she had included confidential information about agency clients in an email to supervisors that she had “e-mail copied” to her attorney.

Acknowledging that she had sent the email contained confidential information, she argued that she had not redacted the confidential information in the copy of her communication sent to her attorney because she considered her communications with her attorney to be privileged and confidential.

Oath Administrative Law Judge Ingrid M. Addison explained that the attorney-client privilege “enables one seeking legal advice to communicate with counsel ... secure in the knowledge that the contents of the exchange will not be revealed against the client’s wishes and that the communication over which privilege is asserted must have been made for the purpose of obtaining legal services and advice in the course of a professional relationship.

Judge Addison ruled that the e-mail the accused employee sent to her attorney was not privileged because it was directed to her supervisors, not her attorney, and was not an attempt to solicit legal advice of her attorney nor could it be interpreted as such. 

The ALJ found the supervisor was insubordinate when she walked out of a meeting with supervisors after being warned not to.

However Judge Addison dismissed a second charge alleging insubordination involving the supervisor's walking out of a meeting with her superior when another supervisor was called in to what was to be a “one-on-one” meeting with the superior.

The ALJ recommended that the supervisor be suspended without pay for 23 day, consisting of a 3-day suspension without for with respect to charges of insubordination related to her walking out of the meeting with a group of supervisors and a 20-day without pay for "wanton disregard" of the employer’s rules when she a copy of an e-mail to other supervisors that contained confidential agency information to her attorney.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-2614.pdf

Failing to report for a medical examination

Failing to report for a medical examination

OATH Index No. 1402/14

A food service manager was found to have failed to report for scheduled medical examinations, that he was ordered to attend pursuant to §2568 of the Education Law, on three occasions.

Further, Administrative Law Judge Faye Lewis found that the manager had not been at work for more than two years.

After having had his disciplinary hearing postponed, the manager did not appear at his hearing scheduled for July 23, 2014.

On the day before the rescheduled trial date, his attorney requested another adjournment of the trial because the manager was in Ohio caring for his ailing mother and was unable to make other care taking arrangements.

The adjournment request was denied for lack of good cause when the manager declined to avail himself of the opportunity to participate at the hearing via telephone.

Other cases involving disciplinary action following an employee’s failure to report for a medical examination include Santiago v. Koehler, 155 A.D.2d 24, O'Neill v City of Schenectady, 194 AD2d 1044, and Decisions of the Commissioner of Education, Decision #13005.

Judge Lewis recommended termination of the food service manager’s employment.  

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/14_Cases/14-1402.pdf
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Appealing the denial of an application for General Municipal Law §207-c disability benefits

Appealing the denial of an application for General Municipal Law §207-c disability benefits
Lowther v County of Rockland, 2014 NY Slip Op 08018, Appellate Division, Second Department

The Rockland County Sheriff denied Deputy Sheriff Charles Lowther’s application for disability benefits pursuant to General Municipal Law §207-c. A hearing officer confirmed the Sheriff’s determination and Lowther appealed the arbitrator’s ruling.

The Appellate Division sustained the arbitrator’s decision and dismissed Lowther ’s appeal “on the merits.”

As a procedural matter, the court first explained that it would treat this appeal as one that had been transferred here by the Supreme Court and would review the administrative determination de novo *

The standard of review in an administrative determination made after a hearing is limited to the Appellate Division's considering whether the determination was supported by substantial evidence. The test of whether an administrative determination is supported by substantial evidence is whether, on the record, a reasonable person might have made the findings and conclusions made by the administrative agency.

The Appellate Division then observed that in order to be eligible for disability benefits pursuant to General Municipal Law §207-c, a covered municipal employee must prove a direct causal relationship between his or her job duties and the resulting alleged illness or injury. In this instance the court found that the arbitrator's determination that Lowther was not entitled to benefits pursuant to General Municipal Law §207-c was supported by substantial evidence in the record.

In contrast, where an administrative body renders a determination without holding a hearing, the appropriate standard of review is whether the determination was arbitrary and capricious or lacking a rational basis, which questions are to be initially addressed in Supreme Court.

* When a petition raises a question of whether an administrative determination made after a hearing is supported by substantial evidence, the proceeding should be transferred from the Supreme Court to the Appellate Division to address that issue.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08018.htm

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Tenured teachers and school administrators facing disciplinary action typically have the right to elect the Education Law §3020-a.disciplinary procedure in lieu of a contract disciplinary procedure

Tenured teachers and school administrators facing disciplinary action typically have the right to elect the Education Law §3020-a.disciplinary procedure in lieu of a contract disciplinary procedure

Kilduff v Rochester City Sch. Dist., 2014 NY Slip Op 08056, Court of Appeals

The Rochester City School District notified Roseann Kilduff, a tenured school social worker,that she was to be suspended for 30 days without pay for certain alleged misconduct. In response to Kilduff’s written request for a hearing pursuant to Education Law §3020-a., the School District advised her that she was not entitled to have this disciplinary action processed pursuant to §3020-a  but could challenge the School District’s disciplinary determination by availing herself of the disciplinary grievance procedures set out in the collective bargaining agreement (CBA) between the School District and the Rochester Teachers Association.

The CBA provided, in relevant part, that "Except as provided elsewhere in this Section, any disciplinary action imposed upon any eligible teacher may be processed as a grievance and arbitration procedure.”*

The Court of Appeals, affirming a ruling by the Appellate Division, said that §3020(1)** of the Education Law, as amended, requires that all CBAs becoming effective on or after September 1, 1994, permit eligible employees facing discipline the right to elect the disciplinary review process provided by Education Law §3020-a.notwithstanding a provision in the CBA to the contrary. 

The Appellate Division had explained that inasmuch as the controlling CBA took effect in 2006, Kilduff, “in the court's view,” had the right pursuant to Education Law §3020(1) to choose the §3020-a disciplinary procedure in lieu any alternative grievance procedure contained in the CBA. Accordingly, said the Appellate Division, Rochester's failure to honor Kilduff’s request, it was required by law to respect, mandated the annulment of the disciplinary action taken against her.

In the words of the Court of Appeals, “the statute unambiguously provides that when a CBA is altered by renegotiation or takes effect on or after September 1, 1994, it must permit tenured employees to elect §3020-a's discipline review procedures, notwithstanding the availability of alternative, CBA-prescribed procedures.”

The court said that while the statute would trump a CBA provision effective on or after September 1, 1994 that relegated a tenured employee exclusively to a non-statutory discipline procedure, “we perceive no reason to conclude that the present CBA in fact does that. It provides merely that a disciplinary action ‘may,’ not that it ‘must,’ be processed in accordance with the agreement's grievance and arbitration provisions which were retained unaltered in the parties' subsequent CBAs.”

Further, in a footnote the majority observed that while the CBA required the §3020-a process where the discharge of a tenured employee was sought, this does not mean, as the School District contended, that it precludes a tenured employee from electing such process where less serious discipline was at issue, in this instance a 30-day suspension without pay.

Accordingly, the court in this 4 to 3 ruling, Judge Smith dissenting in an opinion in which Judges Read and Pigott concur, held that the order of the Appellate Division should be affirmed, with costs.

It should be noted that with respect to eligible employees in the classified service, §76.4 of the Civil Service Law, in pertinent part, provides that §§75 and 76 of the Civil Service Law “… may be supplemented, modified or replaced by agreements negotiated between the state and an employee organization pursuant to article fourteen of this chapter [emphasis supplied]. Where such sections are so supplemented, modified or replaced, any employee against whom charges have been preferred prior to the effective date of such supplementation, modification or replacement shall continue to be subject to the provisions of such sections as in effect on the date such charges were preferred”.

* The Court of Appeals noted that a subsequent subsection of the CBA provided that “no eligible teacher may be discharged without the process prescribed in Education Law §§3020 and 3020-a..”

** The portion of Education Law §3020(1) relevant to the issues raised in this action states: "No person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause and in accordance with the procedures specified in section three thousand twenty-a of this article or in accordance with alternate disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment that was effective on or before September first, nineteen hundred ninety-four and has been unaltered by renegotiation, or in accordance with alternative disciplinary procedures contained in a collective bargaining agreement covering his or her terms and conditions of employment that becomes effective on or after September first, nineteen hundred ninety-four; provided, however, that any such alternate disciplinary procedures contained in a collective bargaining agreement that becomes effective on or after September first, nineteen hundred ninety-four, must provide for the written election by the employee of either the procedures specified in such section three thousand twenty-a or the alternative disciplinary procedures contained in the collective bargaining agreement" (emphasis by the Court).

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2014/2014_08056.htm

 __________________________ 

The Discipline Book, - A concise guide to disciplinary actions involving public employees in New York State set out in a 2100+ page e-book. For more information click on http://booklocker.com/books/5215.html

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