Disciplinary hearing held in absentia

Disciplinary hearing held in absentia

OATH Index No. 1114/15.

Following a default hearing, Administrative Law Judge Astrid B. Gloade found that petitioner proved charges that respondent, a job opportunity specialist, was AWOL and defrauded his employer.

The undisputed proof showed that respondent issued rental assistance checks to persons who were not landlords and who were not entitled to the funds. The proof further showed that the fake landlords gave respondent the amount of the issued checks and he, in return, gave them cash. Respondent pled guilty in criminal court to welfare fraud where he admitted that he had engaged in a kickback scheme that defrauded his employer of over $ 690,000 in agency funds. Termination of employment recommended.

Posted on the Internet at: http://archive.citylaw.org/wp-content/uploads/sites/17/oath/15_cases/15-1114.pdf

_____________

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

_____________

 

Grounds for vacating an arbitration award

Grounds for vacating an arbitration award

2015 NY Slip Op 04486, Appellate Division, Second Department

In this action to confirm an arbitration award Supreme Court granted the petition and denied the disappointed party’s [Lieberman] application to vacate the arbitration award. 

In the appeal that followed challenging the Supreme Court’s ruling the Appellate Division sustained, in relevant part, the confirmation of the arbitration award, explaining "Even where the arbitrator makes a mistake of fact or law, [an arbitration] award is not subject to vacatur unless the court concludes that it is totally irrational or violative of a strong public policy and thus in excess of the arbitrator's powers."

Here, said the court, Lieberman failed to demonstrate that the arbitration panel exceeded its power in making the award.

Citing Town of Haverstraw v Rockland County Patrolmen's Benevolent Assn., 65 NY2d 677, the Appellate Division said "An arbitrator may do justice as he [or she] sees it, applying his [or her] own sense of law and equity to the facts as he [or she] finds them to be."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04486.htm

Seeking information pursuant to a Freedom of Information [FOIL] request

Seeking information pursuant to a Freedom of Information [FOIL] request

2015 NY Slip Op 04237, Appellate Division, First Department

The basic concept underlying the Freedom of Information Law  [FOIL], Article  6 of the Public Officers Law, is that all government documents and records, other than those having access specifically limited by statute,* are available to the public. However, the custodian of the records or documents requested may elect, but is not required, to withhold those items that otherwise within the ambit of the several exceptions to disclosure permitted by FOIL.

Accordingly, an individual is not required to submit a FOIL request as a condition precedent to obtaining public records where access is not barred by statute. A FOIL request is required only in the event the custodian of the public record[s] sought declines to “voluntarily” provide the information or record requested. In such cases the individual or organization is required to file a FOIL request to obtain the information. It should also be noted that there is no bar to providing information pursuant to a FOIL request, or otherwise, that falls within one or more of the exceptions that the custodian could rely upon in denying a FOIL request, in whole or in part, for the information or records demanded.

In this action Supreme Court denied a petition seeking to compel the disclosure of certain documents pursuant to FOIL. The materials sought related to the investigation of two complaints filed with the Office of the Special Commissioner of Investigation for the New York City School District (SCI) concerning whether a speech that was given by an employee of the New York State Department of Education (DOE) at a public high school and later reproduced on DOE's website violated Chancellor's Regulations D-130(I)(B)(2), (I)(B)(8), and (I)(C)(1).**

The Appellate Division reversed the Supreme Court’s decision commenting that Supreme Court had “improperly suggested” that the individual filing the FOIL request [Petitioner] had the burden to establish that SCI’s denial of the FOIL request was "arbitrary and capricious," "an abuse of discretion," "irrational," or "unlawful."

The appropriate standard of review, said the Appellate Division, is whether SCI's determination "was affected by an error of law," citing Mulgrew v Board of Education of the City School District of New York, 87 AD3d 506. Rather than requiring the petitioner to show the denial the request was arbitrary or an abuse of discretion, the Appellate Division said that the burden is on the custodian of the records that are the target of the FOIL request to establish "that the material requested falls squarely within the ambit of one of the 'statutory exemptions' from disclosure" [and the custodian elected to apply the exemption in this instance].

The Appellate Division concluded that under the circumstances in this case, the application of an improper legal standard is reversible error since it resulted in substantial prejudice to Petitioner.

As the burdens placed on the custodian of the records demanded, the court said the custodian failed to establish that disclosure of the materials at issue would "constitute an unwarranted invasion of personal privacy” within the meaning of Public Officers Law §87[2][b]) nor did the custodian claim that any personal privacy category enumerated in § 89(2) is applicable in this instance [see, also, Public Officers Law Article 6-A, the so-called  Personal Privacy Protection Law].

As to the merits of the request, the Appellate Division explained that a court must first determine whether any invasion of personal privacy would be unwarranted "by balancing the privacy interests at stake against the public interest in disclosure of the information."

The Appellate Division said that the speech at issue “excoriated unspecified candidates in the 2013 mayoral election who had taken certain positions on education policy.” Although the speech did not name any individual candidate or political party, the complaints to SCI raised serious questions about the propriety of the speech and its publication on DOE's website.

Finding that there is a "significant public interest" in the requested materials, which may shed light on whether this matter was adequately investigated, the court indicated that SCI:

1. Failed to establish that the claimed privacy interests outweigh this public interest;*** and

2. Failed to demonstrate the applicability of the inter- or intra-agency exemption, since some or all of the materials may constitute "factual tabulations or data" or "final agency ... determinations," which do not fall within this exemption.

The Appellate Division directed SCI to “produce the requested information to the extent it constitutes factual data or final agency determinations” redacting “personal identifying information such as names, home addresses, dates of birth and social security numbers.” All other requested materials were to be given to the court for an in camera inspection [i.e., a review by the court “in chambers” in the course of an otherwise open trial].

* The release of some public records is limited by statute [see, for example, Education Law, §1127 - Confidentiality of records; §33.13, Mental Hygiene Law - Clinical records; confidentiality].

** These regulations govern the use of school buildings by political candidates, officials and organizations and the conduct of school employees and officers with respect to political campaigns and elections.

*** Although SCI had asserted that the materials contain personally identifying information such as home addresses, dates of birth, and Social Security numbers, the Appellate Division said such information could be redacted and thus did not provide a basis for withholding entire documents.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04237.htm

An administrative agency’s acknowledgment of its authority to reconsider its determination, without more, neither rendered its determination nonfinal nor extended the relevant statute of limitations

An administrative agency’s acknowledgment of its authority to reconsider its determination, without more, neither rendered its determination nonfinal nor extended the relevant statute of limitations

2015 NY Slip Op 04369, Appellate Division, Third Department

The general rule followed in situations where an aggrieved party asks an administrative agency or tribunal to reconsider its determination is that the statute of limitations to appeal the administrative determination begins to run when notice of the final administrative action or decision is received by the party or, if the party is represented by an attorney, the party's attorney, notwithstanding the submission of such a request.

This point is illustrated in the Cardo case.* In Cardo one of the issues concerned the question of the timely filing of an appeal. The court said that although Cardo asked his employer to "reconsider" its administrative decision, such a request "did not extend the period within which the [Article 78] proceeding must be commenced." Indeed, in Kahn v New York City Department of Education 79 AD3d 52, the Appellate Division held that the statute of limitations for initiating a lawsuit is not tolled by the individual’s pursuing his or her opportunity to seek an administrative review of the determination.

In contrast to the legal impact of an individual merely submitting a "request for reconsideration," should the administrative actually agree to reconsider the matter and issue a new determination, the statute of limitations will begin running from the date of the new "final determination." This is true even if the new "final determination" confirms the original administrative decision.

In Orange County Economic Development Corporation, [Corporation], v State Of New York Authorities Budget Office, [Budget], the Appellate Division indicated that the same general rule applied with respect to challenges to Budget’s administrative determinations.

Corporation is a not-for-profit local economic development corporation. In November 2011 Budget wrote to Corporation stating that Budget considered Corporation to be a local authority subject to the reporting, disclosure and governance requirements of the Public Authorities Law. That letter also stated that “the lack of any response from Corporation by December 6, 2011 would indicate Corporation's acceptance of [Budget’s] determination.”

Corporation responded to Budget’s November 2011 notice by letter dated January 2012.

In the months that followed Corporation and Budget exchanged communications regarding Corporation's disagreement with Budget’s determination and Corporation requested that Budget reconsider its decision. Budget consistently responded that it considered Corporation to be a covered local authority and, in July 2013, publicly listed Corporation as noncompliant.

In November 2013 Corporation  filed a petition pursuant to CPLR Article 78 challenging Budget's determination. Supreme Court granted Budget's pre-answer motion to dismiss Corporations' petition on the ground that the proceeding was untimely, which ruling Corporation appealed to the Appellate Division.

In its appeal Corporation contended that the proceeding was not subject to a four-month statute of limitations because Budget acted in excess of its jurisdiction. The Appellate Division said that Corporation’s argument was unpersuasive. The court explained that Budget is authorized to ensure that "local authorities" comply with the reporting requirements of the Public Authorities Law and Corporation's claim that Budget's determination was in conflict with the relevant statutory language is "reviewable in a CPLR Article 78 proceeding, subject to a four-month statute of limitations."

The Appellate Division agreed with Supreme Court that Budget’s determination that Corporation was a local authority subject to the reporting, disclosure and governance requirements of the Public Authorities Law, became final and binding on the Corporation on December 6, 2011. Indeed, said the court, “Budget's November 2011 letter left no doubt that it had reached a definitive position regarding Corporation's status.”

The Appellate Division ruled that the fact that Corporation was not on the two public lists of noncompliant entities issued by Budget between December 2011 and July 2013 neither changed Budget's determination nor Corporation's obligation to comply with the Public Authorities Law. Further, said the court, “Budget's acknowledgment of its authority to reconsider did not render its determination nonfinal or extend the statute of limitations.”

* Cardo v Sielaff, 186 A.D.2d 424

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04369.htm

Submitting, demanding and withdrawing a resignation from public employment

Submitting, demanding and withdrawing a resignation from public employment
2015 NY Slip Op 04408, Appellate Division, First Department

The rules of the New York State Civil Service Commission provide that "every resignation shall be in writing" [4 NYCRR 5.3(a)]. The rules further provides that if no effective date is specified in the resignation, it takes effect when delivered to or filed in the office of the appointing authority. If a date is specified, it takes effect on the date indicated. 4 NYCRR 5.3(c) also provides that a resignation may not be withdrawn, canceled or amended after it is delivered to the appointing authority without the consent of the appointing authority.

Many local civil service commissions and personnel officers have adopted similar rules concerning resignations of employees subject to their respective jurisdictions.

The genesis of this appeal was Supreme Court’s order directing the New York City Department of Education (DOE) to reinstate an individual [Petitioner] to her teaching position with back pay and all other economic benefits of employment from August 28, 2008. DOE appealed and the Appellate Division unanimously reversed the lower court’s ruling, on the law and the facts.

The Appellate Division held that Petitioner’s action was time-barred because it was filed more than four months after Petitioner's receipt of DOE's letter notifying her that she was taken off the payroll as a result of her resignation. (see CPLR 217[1]; see also Matter of Biondo v New York State Bd. of Parole, 60 NY2d 832, 834 [1983]). The court explained that Supreme Court had failed to distinguish the regulations applicable to employee requests to "rescind" a resignation, which are made before the effective date of the resignation, and requests to "withdraw" a resignation, which are made after the effective date of the resignation. Further, the "delivery or filing" of a written resignation is the operative element and “acceptance” of the employee’s resignation by the appointing authority is not required.

In this instance Petitioner sought to rescind her resignation before it was effective. Under the relevant Chancellor's Regulation [C-205(26)], a resignation was deemed final upon submission and the Chancellor had no obligation to specifically notify Petitioner that her request to rescind was denied. The record, said the Appellate Division, indicates that DOE notified Petitioner on August 26, 2008 that she was being taken off the payroll based on her resignation. Thus, said the court, “[f]urther action by DOE was not required nor did Petitioner's letters to DOE after that date extend the statute of limitations, citing Lubin v Board of Education of the City of New York, 60 NY2d 974.

In any event, the Appellate Division noted that there was “a rational basis for DOE's determination terminating Petitioner’s employment based on her resignation in the face of disciplinary charges, and the determination was not arbitrary and capricious, made in bad faith, or made in violation of lawful procedure.”

In an earlier case, Smith v Kunkel, 152, AD2d 893 [appeal dismissed, 74 N.Y.2d 944] the Appellate Division considered the issue of an employee's attempt to withdraw his written resignation prior to its effective date. Smith, a permanent State employee had submitted his resignation for "personal reasons." The resignation was dated August 21 and was to take effect the following September 3. On August 29 Smith wrote the Division "seeking to withdraw and rescind" his resignation.

Kunkel, the Division's Administrative Officer, refused to approve Smith’s request to withdraw his resignation, citing 4 NYCRR 5.3(c) of the rules. Further, in Hazelton v Connelly, 25 NYS2d 74 the court said that all that is required for a resignation to become operative is its delivery to the appointing authority prior to the receipt of an employee’s request to withdraw or rescind the resignation prior to its receipt by the appointing authority. Approval or acceptance of the resignation is not required for the resignation to take effect

Smith had sued the agency contending that [1] Kunkel's refusal to permit him to withdraw his resignation was arbitrary and capricious and [2] 4 NYCRR 5.3(c) was unconstitutional as it deprived him of his public employment without notice and hearing.

As to Smith's constitutional challenge to the rule, the Appellate Division rejected Smith's argument that the rule was Unconstitutional noting that the argument overlooked a crucial fact: Smith had not been terminated but had voluntarily resigned his position. The court said that the "voluntariness of [Smith's] resignation is not vitiated by the fact that Kunkel rejected his withdrawal request prior to the effective date of his resignation... Having relinquished his position, [Smith] did not retain any constitutionally protected property interest in it."

On another point, sometimes an individual's notice that he or she has decided to withdraw, cancel or rescind the resignation is received by the appropriate official or body before the resignation is actually "delivered" to such person or body. In such situations the courts usually rule that the receipt of a withdrawal of a resignation before the resignation itself is delivered effectively voids the resignation.

Another issue that is sometimes raised in connection with an attempt to withdraw a resignation is a claim that the resignation was coerced from an employee or obtained under duress. Frequently an appointing authority will indicate to an employee that unless the worker submits his or her resignation, disciplinary charges will be filed against the individual.

The courts have concluded that where an appointing authority has the right, if not the duty, to take disciplinary action against an individual, "it was not duress to threaten to do what one had the legal right to do" [Rychlick v Coughlin, 63 NY2d 643].

Finally, where an employee has submitted his or her resignation after being served with disciplinary charges or in expectation of being served with disciplinary charges, an appointing authority may elect to disregard an employee’s resignation and proceed with the disciplinary action [see 4 NYCRR 5.3(b)].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04408.htm

_____________

The Discipline Book - A concise guide to disciplinary actions involving public employees in New York State set out in a 448 page e-book. For more information click on
http://thedisciplinebook.blogspot.com

_____________