Dismissed probationary employee has the burden of showing that the decision leading to his or her termination was made in bad faith

Dismissed probationary employee has the burden of showing that the decision leading to his or her termination was made in bad faith

2015 NY Slip Op 04944, Appellate Division, First Department

A probationary correction officer [Probationer] challenged his employer’s decision to terminate him from his position. Supreme Court dismissed Probationer’s Article 78 petition and the Appellate Division affirmed the lower court’s ruling.

The Appellate Division explained that Probationer’s “unsupported assertions” that his employer, the New York City Department of Correction, improperly terminated his probationary employment are insufficient to satisfy his burden of establishing that his dismissal was made in bad faith.

The court said that “[m]ere conclusory allegations of bad faith based on speculation are not sufficient.”

The decision is posted on the Internet at

http://www.nycourts.gov/reporter/3dseries/2015/2015_04944.htm

Department of Civil Service Rule Making Activities

Department of Civil Service Rule Making Activities

NYS Register - June 24, 2015 Rule Making Activities

The following “ERRATUM” was published in the New York State Register dated June 24, 2015

A Notice of Adoption, I.D. No. CVS-20-14-00003-A, pertaining to Jurisdictional Classification, published in the June 3, 2015 issue of the State Register inadvertently failed to include an assessment of written comments received on the proposed rule.

The Department of Civil Service apologizes for any inconvenience this may have caused. The Assessment of Public Comment is published below in its entirety:

Assessment of Public Comment

At a public meeting held on April 8, 2014, the New York State Civil Service Commission amended Appendix 2 to 4 NYCCR by approving the placement of 230 positions of Empire Fellow in the non-competitive jurisdictional class. Following publication of the Notice of Proposed Rule Making, a public comment in opposition to the proposed rule amendment, dated June 30, 2014, was received from the New York State Public Employees Federation, AFL-CIO, (PEF).

Article V, section 6 of the State Constitution requires that appointments in the classified service of the State shall be “made according to merit and fitness, to be ascertained, as far as practicable, by examination which, as far as practicable, shall be competitive...” The Legislature has defined a number of exceptions where competitive examination in not practicable, such as contained in Civil Service Law section 42, which authorizes the filling of positions in the non-competitive jurisdictional class. Non-competitive class positions typically require candidates to meet minimum qualifications consisting of academic credentials or training and/or relevant work experience.

Empire Fellow positions are two-year term-limited appointments for highly skilled professionals who possess a bachelor’s degree or higher with three years of professional work experience and who demonstrate leadership capacity and a desire to make a significant contribution to enhancing New York State government operations. The Empire Fellows undertake special projects as assigned and report directly to State agency executive management or serve in the Office of Governor. Empire Fellows may be cycled through several different assignments during their fellowships and take part in a structured graduate-style training program focusing on areas of public administration/management including human resources, budgeting and community engagement/press relations.

PEF asserts that Fellows perform duties analogous to promotion-level competitive class positions such as Environmental Analyst 3 and Program Operations Specialist 5. PEF also claims, that based upon unverified anecdotal evidence, two Fellows had performed the same duties as competitive Senior Attorneys.

After review of the public comment, the State Civil Service Commission has determined to adopt the amendment as originally proposed. Commission decisions in such matters are based upon iinformation provided by the appointing authority (here, the State Office of General Services), as well as comments from professional staff of the Department of Civil Service Divisions of Classification and Compensation and Staffing Services. Department staff advised the Commission that Fellows will work on highly sensitive and cross-functional matters for agency heads and the Executive Chamber.

The variety and nature of these projects are not amenable to competitive examinations, which may be limited to specific career-oriented test rubrics.

The promotion-level competitive class titles cited in PEF’s comment reference certain analytical and policy development duties in narrow fields, but these titles remain fundamentally distinct from the role of the Fellows program, which is intended to introduce and cultivate future generalist managers and leaders from outside of State service. As such, Fellows must enter State government at a relatively high level, rather than progressing through a competitive career ladder of successive promotion examinations. Further, the Fellows serve two-year term appointments and do not expect and cannot obtain tenure that ordinarily accompanies a permanent appointment from an eligible list established after a competitive examination.

Therefore, the unique and varied duties, high-level reporting relationships of the positions, along with the personal characteristics required of successful candidates and the limited nature of the appointments, render competitive examination impracticable for Empire Fellow positions. Candidates’ merit and fitness can be properly assessed through a non-competitive evaluation, which includes established minimum qualifications and a rigorous selection process featuring individualized resume reviews. 

Accordingly, the Commission continues to find that the Empire Fellow positions belong in the non-competitive jurisdictional class and the subject amendment to Appendix 2 of 4 NYCRR has been approved for final adoption.

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

Distinguishing between a covered employee and an independent contractor for the purposes of eligibility for unemployment insurance benefits

2015 NY Slip Op 04550, Appellate Division, Third Department

A law firm [Firm] appealed a decision of the Unemployment Insurance Appeal Board [Board] which assessed Firm for additional unemployment insurance contributions after ruling that a claimant [Lawyer] for unemployment insurance benefits for eligible for such benefits.

Lawyer had been retained as a "contract attorney" by the Firm to perform document review services in conjunction with the litigation of a class action lawsuit. After his assignment ended, Lawyer applied for unemployment insurance benefits and . The Unemployment Insurance Appeal Board ruled that Lawyer was the Firm’s employee and assessed it for additional unemployment insurance contributions as a result.

The Appellate Division affirmed the Board’s decision explaining that "Whether an employer-employee relationship exists is a factual determination for the Board, and its decision will be upheld if supported by substantial evidence." Citing Matter of LaValley, 120 AD2d 1498, the court said that "in cases where the rendering of professional services is involved, an employment relationship can be found where there is substantial evidence of control over important aspects of the services performed other than results or means."

The decision indicates that Lawyer:

1. was paid an agreed-upon hourly rate and required to work at least 45 hours a week, but not more than 50 hours per week;

2. was given specified hours each day to report to his assigned work station;

3. was required to take a daily unpaid 30 minute lunch break and was occasionally required to report to work on weekends;

4. was allowed to take unpaid days off, provided that he requested the time off in advance;

5. received daily assignments from an associate attorney employed by the Firm and who supervised Lawyer’s work; and

6. assisted in the litigation by providing written memoranda summarizing deposition testimony, work that included Lawyer's attendance at meetings with attorneys from other firms involved in the litigation.

These elements, said the Appellate Division, constituted “substantial evidence” supporting the Board's decision that the Firm retained sufficient overall control of Lawyers services to establish an employment relationship, despite evidence in the record that could support a contrary conclusion.

Significantly, the court commented that “The fact that [Lawyer] signed a written agreement designating him as an independent contractor does not compel a different result, citing Matter of Joyce, 116 AD3d 1132.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04550.htm

Employer has the burden of proving that the disciplinary charges filed against the employee were timely served

Employer has the burden of proving that the disciplinary charges filed against the employee were timely served

2015 NY Slip Op 04940, Appellate Division, First Department

The disciplinary hearing officer found that the tenured teacher [Teacher] was guilty of two of three sets of charges and imposed the penalty of termination from his position.

Teacher appealed and Supreme Court granted his petition to vacate a hearing officer's award to the extent of annulling the portion of the award that sustained a third set of charges against Teacher and imposed the penalty of termination. The court remanded the matter to Teacher’s employer, the New York City Department of Education (DOE) for the imposition of an appropriate lesser penalty.

On appeal, the Appellate Division “unanimously affirmed” the Supreme Court’s action.

The Appellate Division said that there was nothing in the record to support Teacher’s claim that his due process rights were violated as the result of his having been provided with the third set of charges after having been served the first two sets of charges. The court explained that Teacher had more than 10 days before he offered testimony with respect to those charges, and he did not object to DOE's request for consolidation of all of the charges against him.

In addition, observed the Appellate Division, “[e]ven though DOE did not specify the precise sections of the Penal Law allegedly violated, the allegations in the three specifications fairly apprised” Teacher of the basis the alleged misconduct underlying the charges filed against him. As the Court of Appeals held in Matter of Block v Ambach, 73 NY2d 323, "in the administrative forum, the charges need only be reasonably specific, in light of all the relevant circumstances, to apprise the party whose rights are being determined of the charges against him and to allow for the preparation of an adequate defense."

Notwithstanding this, the Appellate Division said that Supreme Court did not exceed its authority in finding that the third set of charges against Teacher was time-barred.*

Although DOE had requested that hearing officer to take judicial notice of two sections of the Penal Law and repeatedly characterized Teacher's conduct as "criminal," the hearing officer did not find that Teacher’s conduct as alleged in the third set of charges constituted a crime. Thus there was no basis triggering the three year exception regarding timeliness set out in Education Law §3020-a(1) and DOE had the burden of establishing that the charges served on Teacher were timely.

As the DOE essentially conceded at the disciplinary hearing that the first and second set of charges against Teacher do not support the penalty of terminating Teacher's employment with DOE, The Appellate Division concluded that Supreme Court correctly remanded the matter to DOE for the imposition of an appropriate lesser penalty.

* See Education Law §3020-a(1). Disciplinary charges against a teacher must be brought within three years from the date of the alleged misconduct, unless the alleged misconduct constituted a crime when committed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04940.htm

Hearsay evidence

Hearsay evidence

Ohio v Clark, No. 13-1352, Decided  June 18, 2015

As the Court of Appeals observed in Matter of Gray v Adduci, 73 N.Y.2d 741, hearsay evidence can be the basis of an administrative determination,

In Willis v New York State Liquor Authority, 118 AD3d 1013, the Appellate Division noted that:

[1] “The strict rules of evidence do not apply to administrative proceedings and hearsay evidence is admissible” and 

[2] “Hearsay evidence may constitute substantial evidence if sufficiently relevant and probative and may, under appropriate circumstances, form the sole basis for an agency's determination, unless it is seriously controverted.”

Indeed, in Doctor v New York State Office of Alcoholism & Substance Abuse Services, 112 A.D.3d 1020, the court said that hearsay evidence alone may constitute substantial evidence in an administrative hearing.

In contrast, hearsay testimony is typically barred in a criminal trial.

Paul Rothstein, Professor of Law, Georgetown University Law Center, addressed the use of hearsay in a criminal trial in his review of Ohio v Clark,* a decision recently handed down by the United States Supreme Court. His analysis is posted on the Internet at https://casetext.com/posts/a-comment-on-the-supreme-courts-decision-in-ohio-v-clark.

In response to an inquiry, “Does not Ohio v Clark suggest a weakening, if not the eventual demise, of the prohibition against the use of “hearsay” in criminal actions?”, Professor Rothstein explained:

"The hearsay rule and its exceptions still apply as an additional filter, but the states are free to make exceptions to the hearsay rule. As long as the exceptions are not used to let in "testimonial" hearsay (i.e. statements made/obtained at the time with a primary purpose to make/get evidence for prosecution) against a criminal defendant, which would violate the confrontation clause, the evidence would be admissible.

"In many situations, the new approach to the confrontation clause (beginning with Crawford in 2004) lets LESS hearsay in. The previous approach (a case called Roberts) allowed hearsay in, if it was within a traditional hearsay exception, even if it was testimonial. Evidence even if within a traditional hearsay exception is now inadmissible under the confrontation clause if it is testimonial"

* In Ohio v Clark, addressing an appeal from a criminal conviction, the U.S. Supreme Court held that “In light of these circumstances, the Sixth Amendment did not prohibit the State from introducing L. P.’s statements at trial.” At the time the statements at issue were made L.P. was a three-year old child.