Terminating the services of a probationary employee

A probationary employee is not entitled to a statement of the reason for his or her termination of his or her probationary employment

Johnson v County of Orange, 2016 NY Slip Op 02821, Appellate Division, Second Department

Supreme Court granted the Orange County Sheriff’s motion to dismiss Janine Johnson Article 78 petition challenging her termination from her position while she was still serving her probationary period “for failure to state a cause of action.” Johnson filed a “notice of appeal” that the Appellate Division deemed to be an application for leave to appeal, granted the “application” and then affirmed the Supreme Court’s ruling with costs.

The Appellate Division explained that a probationary employee “may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law."

Case law, however, indicates that a probationary employee may be terminated at any time after the completing his or her minimum period of probation prior to completing his or her maximum period of probation [see Gray v Bronx Developmental Center, 65 NY2d 904] unless otherwise provided by a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position [see McKee v. Jackson, 152 AD2d 54]. 

It should be noted that Rules promulgated by a civil service commission may set out procedures and standards that control the termination of a probationary employee. See, for example, 4 NYCRR 4.5(b) of the Rules of the State Civil Service Commission. Many local civil service commissions have adopted similar rules. 

In Scherbyn v Wayne-Finger Lakes BOCES, 77 NY2d 753, the Court of Appeals held that where the rules of a civil service commission specifically set out the reasons for which a probationary employee may be dismissed, the appointing authority's broad discretion with respect to terminating the services of probationers is subject to the limitations imposed by those standards. Further, a  department policy does not trump the probationary period established by law or by a rule or regulations having the force and effect of law [Yan Ping Xu v New York City Dept. of Health & Mental Hygiene, 2014 NY Slip Op 07261, Appellate Division, First Department].

In this instance the Appellate Division found that the allegations in Johnson’s petition were insufficient to state a cause of action that her employment was terminated “in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law.”

The Appellate Division also held that:

1. Johnson’s claim that the Orange County Sheriff's Office tolerated other relationships such as the one in which she was involved and did not have a formal anti-fraternization policy were inadequate to state a cause of action alleging that she was terminated in bad faith; and

2. Johnson was not entitled to a statement of the reason for the termination of her probationary employment, citing York v McGuire, 63 NY2d 760.

Accordingly, said the court, Supreme Court properly granted the appointing authority’s motion to dismiss Johnson’s petition.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_02821.htm

A public employee’s speech as a citizen rather than as an employee protected by the First Amendment

A public employee’s speech as a citizen rather than as an employee protected by the First Amendment

Matthews v City of New York, USCA, 2^nd Circuit, Civ. 13-2915

New York City Police Officer Craig Matthews sued the City of New York alleging that the City had retaliated against him for speaking to his commanding officers about an arrest quota policy at his precinct.*

A United States District Court judge granted the City’s motion for summary judgment, holding that Matthews had spoken as a public employee and not as a citizen and thus his speech was not protected by the First Amendment.

Citing Cox v Warwick Valley Central School District, 654 F3d 267, the 2nd Circuit Court of Appeals said that the test it applied in cases in which a plaintiff asserts a First Amendment retaliation claim requires the plaintiff to establish that:

(1) his or her speech or conduct was protected by the First Amendment;

(2) the defendant took an adverse action against him or her; and

(3) there was a causal connection between this adverse action and the protected speech.

The Circuit Court of Appeals vacated the district court’s ruling, explaining that “because Matthews’s [sic] comments on precinct policy did not fall within his official duties and because he elected a channel with a civilian analogue to pursue his complaint, he spoke as a citizen.” The court then remanded the matter for further proceeding “consistent with this opinion.”

* Although not relevant to this appeal, which was limited to the narrow question of whether Matthews spoke as a citizen or as a public employee, the alleged acts of retaliation consisted of “punitive assignments, denial of overtime and leave, separation from his career-long partner, humiliating treatment by supervisors, and negative performance evaluations.”

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/94c58cb0-319d-4fa2-8743-a6327b4f46f0/1/doc/13-2915_opn.pdf#xml=http://www.ca2.usc

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on February 26, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on February 26, 2015

Click on text highlighted in color  to access the full report

On February 26, 2015 New York State Comptroller Thomas P. DiNapoli announced that the following audits have been issued: 

Department of Health (DOH): Medicaid Program: Medicaid Claims Processing Activity April 1, 2013 Through September 30, 2013 (2013-S-12)
DOH’s eMedNY computer system processes Medicaid claims submitted by providers for services rendered to Medicaid-eligible recipients, and it generates payments to reimburse the providers for their claims. During the six-month period ended Sept. 30, 2013, auditors identified over $5.6 million in inappropriate or questionable Medicaid payments. By the end of the audit fieldwork, auditors recovered about $2.3 million of the overpayments identified.

Department of Labor (DOL): Assessment and Collection of Selected Fees and Penalties (Follow-Up) (2014-F-19)
An initial report issued in May 2013, determined DOL had not collected about $3.8 million in fees and penalties for the Public Work Enforcement Fund, the boiler inspection program and the asbestos abatement program. Auditors also determined DOL does not have accurate records to show who is required to pay boiler inspection and asbestos-related project fees. In a follow-up, auditors found DOL has made substantial progress in addressing the issues identified in the initial report.

Metropolitan Transportation Authority (MTA): Headquarters and Capital Construction Travel and Entertainment Expenses (2013-S-47)
Auditors found MTA Headquarters and MTA Capital Construction have opportunities to strengthen controls over travel and entertainment, which could help reduce certain costs. For example, MTAHQ and MTACC could utilize federal travel guidelines (established by the U.S. General Services Administration and the U.S. Department of State) pertaining to maximum allowable lodging rates. Auditors found certain travel transactions lacked proper prior approvals, statements of purpose, or other required supporting travel documentation. Business office staff did not consistently ensure that all required approvals and supporting documents were included with employees’ travel expense reports.

New York City Department of Housing Preservation and Development (NYC HPD): Housing Preferences for Veterans (2014-F-14)
An initial report issued in June 2012 found that although the state Legislature had extended the right of preference for housing to many more veterans, few actually benefited due to inaction or disregard by housing companies and lax enforcement by NYC HPD. Auditors found two housing companies in Manhattan (Hamilton House and Clinton Towers) filled vacant apartments with non-veterans even though veterans had been identified on their waiting lists. In a follow-up report, auditors found NYC HPD has made progress in addressing the issues identified in the initial report and has implemented all three prior recommendations.

Office of Information Technology Services (OITS):  Security and Effectiveness of Division of Criminal Justice Services’ (DCJS) Core Systems (2014-S-24)
Auditors found that OITS does not have an established monitoring and oversight process for user access management of DCJS systems and is not operating in compliance with state cyber security policies. OITS does not have established policies and procedures for backup of key DCJS systems. Also, ITS does not have an active regional backup site, and DCJS systems are at risk for total data loss in the event of a regional disaster. Auditors also found OITS does not have an established monitoring and oversight process for software or operating systems and changes made to these systems.

Office of Information Technology Services (OITS): Security and Effectiveness of the Department of Labor’s Unemployment Insurance System (2014-S9)
Auditors found the Unemployment Insurance System data has not yet been classified as required by the current security policy, even though 80 of the 83 unemployment insurance applications in use by the Labor Department have been deemed mission critical. The security policy indicates that all agency information should be classified on an ongoing basis based on its confidentiality, integrity, and availability. Almost two years after the transition of services, OITS still does not have a service level agreement in place governing responsibilities and services provided to human services agencies. Auditors also found that although mainframe programming changes are logged, there is no indication of when these changes have been implemented, thereby reducing accountability.

Office of Information Technology Services (OITS): Security and Effectiveness of Department of Motor Vehicles’ (DMV) Licensing and Registration Systems (2013-S-58)
Auditors found OITS and DMV are not in compliance with the payment card industry data security standards that govern the systems that process credit card transactions. Since January 2012, neither agency has completed and submitted a required self-assessment questionnaire or third-party compliance report, which are necessary to ensure that all risks have been properly identified and mitigated. Non-compliance also exposes the state to other risks ranging from extensive fines or penalties to business disruption due to cancelled accounts and the inability to accept credit card payments. OITS does not have an established monitoring and oversight process for user access management of DMV systems and is not operating in compliance with state cybersecurity policies.

The U.S. Court of Appeals, Second Circuitʹs tests for sovereign immunity

The U.S. Court of Appeals Second Circuitʹs tests for sovereign immunity

Leitner v Westchester Community College, USCA, 2^nd Circuit, 14-1042-cv

An adjunct professor employed by the Westchester Community College was terminated for allegedly making offensive comments in class. She sued, contending that the Community College violated her state and federal constitutional rights.

The U.S. Circuit Court of Appeals affirmed a federal district court’s denial of the Community College’s motion to dismiss the professor’s complaint on grounds that the college defendants were not entitled to sovereign immunity under the Eleventh Amendment.

In a ruling that instructive in that it sets out the six factors considered, and the two-part test applied, by the Second Circuit when addressing a governmental entity’s claim of sovereign immunity, the court said that in this instance:

(1) a finding of sovereign immunity would not serve the twin aims of the Eleventh Amendment, as immunity would not further the states interest in preserving its treasury, nor would it protect the integrity of the state; and

(2) Westchester Community College is not an arm of the state entitled to sovereign immunity under the Eleventh Amendment.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/5ea5b6b9-b3ce-46b7-82a9-7e0e896784eb/1/doc/14-1042_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/5ea5b6b9-b3ce-46b7-82a9-7e0e896784eb/1/hilite/

.

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on February 25, 2015

Selected reports and information published by New York State's Comptroller Thomas P. DiNapoli on February 25, 2015

Click on text highlighted in color  to access the full report

Town of Croghan – Financial Management (Lewis County)
The board adopted budgets that relied too heavily on fund balance as a financing source and appropriated more fund balance than it had available. The board has not developed a multiyear financial plan to address long-term priorities or a policy to determine the amount of fund balance to maintain.
Town of Dickinson – Fiscal Oversight (Franklin County)
The board did not effectively oversee the town’s financial operations. The supervisor did not provide the board with adequate monthly financial reports. In addition, the town’s procedures for auditing claims were not in compliance with town law.
Johnstown Public Library – Cash Receipts (Fulton County)
Auditors were unable to determine if all collections were recorded and deposited in a timely manner and intact. This was because library officials have not established formal policies or procedures for handling and recording cash receipts.
Town of Kiantone – Town Clerk (Chautauqua County)
The town clerk did not deposit all money collected. As of June 23, 2014, the clerk had a shortage totaling $3,147. In addition, the clerk did not record, deposit or remit money collected in an accurate and timely manner. Auditors also found the board did not provide adequate oversight of the clerk’s operations.
Town of Lewisboro – Financial Condition (Westchester County)
The town’s general, sewer and water funds all had a deficit fund balance at some point from 2009 through 2013. While officials were able to eliminate accumulated deficits in these funds by the end of 2013, they have not developed a multiyear financial plan to help monitor operations and guard against future operating deficits.
Village of Mill Neck – Financial Management (Nassau County)  The board has not established adequate policies and procedures or provided guidance on maintaining a reasonable level of fund balance. As a result, the village has accumulated excessive fund balance in its general fund that resulted, at least in part, from unrealistic budget estimates.
Saratoga Springs Public Library – Claims Processing (Saratoga County)
Internal controls over the claims audit process were not designed appropriately. For example, not all claims included signatures from the director or department heads to indicate that goods and services were actually received. In addition, the board assigned the responsibility to audit and approve all claims for payment to the president.
Town of Sweden – Justice Court (Monroe County)
The justices do not provide adequate oversight of court operations to ensure the accurate and complete collection, deposit, recording and reporting of court moneys in a timely manner. The justices have not adequately segregated the duties of the clerks and do not regularly review accounting records, bank statements, or monthly reconciliations and accountability analyses.
Town of Tyrone – Financial Management (Schuyler County)
Town officials have not developed multiyear financial plans, policies, or procedures to govern budgeting practices or the level of unexpended surplus funds to maintain. The board adopted budgets that were not based on sound and realistic estimates of revenues and expenditures. Poor budgeting, along with overspending in the highway fund, has caused cash flow problems, which required inter-fund transfers and advances from the general fund to pay bills over the last several years.
Town of West Union – Board Oversight and Cash Receipts and Disbursements (Steuben County)
The board has not provided adequate oversight to safeguard town assets. Specifically, the board did not adopt structurally balanced budgets. For fiscal years 2011 through 2013, the town had excessive fund balances in both the general fund and highway fund. In addition, the board did not audit the books and records of any of the town officers and employees that handled cash.

.