Employee’s refusal to cooperate with a police investigation found to constitute misconduct

Employee’s refusal to cooperate with a police investigation found to constitute misconduct
2015 NY Slip Op 01740, Appellate Division, First Department

The Appellate Division confirmed the determination of New York City’s Police Commissioner adopting the findings of the disciplinary Hearing Officer that a New York City police officer had engaged in misconduct, and imposing a penalty of forfeiture of 30 vacation days, a 30-day suspension, without pay, and a one-year dismissal probation period.

The court said that there was substantial evidence to support the Hearing Officer’s findings that the police officer had refused to cooperate with a Port Authority Police Department (PAPD) investigation, and that he gave vague and nonresponsive answers at a subsequent interview by New York City Police Department officials.

Citing Kelly v Safir, 96 NY2d 32, the Appellate Division said that “The imposed penalty does not shock our sense of fairness.”

Similarly, a New York City Office of Administrative Trials and Hearings' administrative law judge held that an employee may be disciplined for refusing to cooperate in a non-disciplinary investigation interview [NYC Health and Hospital Corporation v Jones, OATH Index #1100/10, posted on the Internet at:http://archive.citylaw.org/oath/10_Cases/10-1100.pdf].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01740.htm

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Using evidence of alleged wrongdoing obtained by means of global-positioning equipment

Using evidence of alleged wrongdoing obtained by means of global-positioning equipment
2015 NY Slip Op 01735, Appellate Division, First Department

The New York City Taxi and Limousine Commission [TLC] revoked a taxi driver’s license after finding that the driver “on numerous occasions, charged passengers a rate that was double the legal rate.” The Appellate Division sustained the Commissions action.

The court noted that although the driver did not exhaust his administrative remedies because he failed to appeal Chairperson's final decision to revoke petitioner's license, he contended that the data from a global-positioning-system (GPS) device installed by the TLC as part of its Taxi Technology System without a court order was obtained in violation of the New York State Constitution and the United States Constitution.

Even had the driver exhausted his administrative remedies, said the Appellate Division, he would not prevail in his challenge to the TLC’s installation and use of the device, explaining that “Even if the installation of the device constituted a ‘search’ within the meaning of both Constitutions, the search was reasonable under the special needs exception to the warrant requirement.”

In Matter of Cunningham, 21 NY3d 515, the Court of Appeals considered the use of a Global Positioning System device to gather evidence of a state employee’s alleged misconduct [see http://publicpersonnellaw.blogspot.com/2013/06/using-global-positioning-system-device.html]. 

In Cunningham, a State agency, suspecting that a State employee was submitting false time reports, attached a global positioning system (GPS) device to the employee's personal automobile without the employee’s knowledge. Citing People v Weaver (12 NY3d 433) and United States v Jones (132 S Ct 945}, the Court of Appeals ruled that the State agency's action was a search within the meaning of the State and Federal Constitutions and “did not require a warrant” but “on the facts of this case such surveillance was  unreasonable”

The decision TLC decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01735.htm

The Cunningham decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2013/2013_04838.htm

The doctrine of estoppel cannot be invoked to attain eligibility for a retirement benefit if the individual does not qualify for the benefit claimed

The Doctrine of Estoppel cannot be invoked to attain eligibility for a retirement benefit if the individual does not qualify for the benefit claimed

2015 NY Slip Op 01222, Appellate Division, Third Department

A member [Retiree] of the New York State Employees Retirement System accepted an incentive for early retirement in 2010, with an effective date of retirement of May 31, 2010. More than one and one-half years later Retiree filed an application for disability retirement benefits, asserting that no one at his place of work or the Retirement System informed him about the possible availability of disability retirement benefits when he filed for "service retirement."

A Hearing Officer concluded that Retiree’s application for disability retirement benefits was not timely filed. The Comptroller adopted the findings and conclusions of the Hearing Officer and Retiree sued, contending that his application should be deemed timely — or the Retirement System should be estopped from finding it untimely — because the Retirement System failed to provide him with a summary plan description in accordance with Retirement and Social Security Law §153(3),

The Appellate Division affirmed the Comptroller’s decision, explaining:

1. The Comptroller has exclusive authority to determine all applications for retirement benefits which determination must be sustained “if it is not unreasonable" and "if the underlying factual findings are supported by substantial evidence."

2. An application for disability retirement benefits pursuant to Retirement and Social Security Law [RSSL] Article 15 must be filed "within three months from the last date the member was being paid on the payroll."

3. It is undisputed that Retiree’s application for disability benefits was filed over 1½ years after his removal from the payroll on May 31, 2010’

Accordingly, said the court, “substantial evidence supports the determination that [Retiree’s] application was untimely.”

The Appellate Division also rejected Retiree’s argument that his application should be deemed timely — or the Retirement System should be estopped from finding it untimely — because the Retirement System failed to provide him with a summary plan description in accordance with RSSL §153(3) in view of the fact that the Comptroller determined that RSSL §155 “dictates that the failure to provide the plan did not ‘create, revive, extend, or otherwise affect the entitlement of a member, retired member, or a beneficiary to any retirement benefit.’"

Indeed, noted the court, even if the Retirement System provided Retiree with incomplete or inaccurate information, "[t]he doctrine of estoppel will not provide eligibility where, by statute, the individual does not qualify” for the retirement benefit claimed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_01222.htm

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