An employer may be required to provide an individual with a name clearing hearing if it has publicly disclosed stigmatizing material concerning the individual

An employer may be required to provide an individual with a name clearing hearing if it has publicly disclosed stigmatizing material concerning the individual
2015 NY Slip Op 04890, Appellate Division, Third Department

After a probationary teacher [Probationer] was terminated from her employment by the School District she commenced an action against a number of school administrators and board members [Defendants] alleging that Defendants had maliciously published defamatory statements about her and that her due process rights were violated by Defendants' failure to provide her with a name-clearing hearing.

Supreme Court granted Probationer's application to annul the School Board's determination denying her a name-clearing hearing and ordered such hearing to be provided.

Addressing Probationer’s due process claim, the Appellate Division said that Supreme Court erred in annulling the Board's determination and granting plaintiff a name-clearing hearing. The court explained that where "a government employee is dismissed for stigmatizing reasons that seriously imperil the opportunity to acquire future employment, the employee is entitled to an opportunity to refute the charge [or charges]" at a name-clearing hearing if the employer publicly disclosed the stigmatizing reasons or if there is a likelihood of future dissemination of such reasons.”  

Probationer had requested a name-clearing hearing “to specifically defend against and address the assertions” by school officials concerning her termination or her relations with students that had been made part of her personnel file. However, said the court, Probationer’s allegations as to the stigmatizing content of such material did not include any further allegations that Defendants and the Board had publicly disclosed those letters or their contents.

Further, said the Appellate Division, Probationer’s assertion that she was seeking relief in the form of removal of the statement of reasons letter from her personnel file was sufficient to apprise the Board of an allegation that there was a likelihood that such a letter or its content might disseminated. Members of the Board, however, said that, before deciding to deny Probationer’s request for a name-clearing hearing the Board determined that the statement of reasons set out in the letter had been and would remain confidential.

Thus, the court concluded, “given that [Probationer] did not allege that Defendants and the Board had publicly disseminated any stigmatizing materials and considering the evidence supporting the conclusion that [Probationer’s] allegation that the statement of reasons letter was in [Probationer's]  personnel file was factually incorrect, there is no basis to disturb the Board's denial of a name-clearing hearing.

Turning to Probationer's action alleging statements made by certain school officials had subjected her to "ostracism and rejection" in the community, the Appellate Division, after explaining the relevant law, held that “Given that defendants do not challenge the jury's determinations that [certain school officials] made the respective statements and that they were defamatory” and remanded the case for a new trial to determine damages, if any, “based upon proof of harms limited to those that can be linked by proximate cause to the two slanderous statements.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04890.htm

NYS Employees’ Retirement System benefits are based on the member’s job title at the time of his or her retirement

NYS Employees’ Retirement System benefits are based on the member’s job title at the time of his or her retirement

2015 NY Slip Op 04555, Appellate Division, Third Department

In 2008, aNew York State Correction Officer [Officer] retired from his position and began collecting service retirement benefits pursuant to Retirement and Social Security Law Article 14. Some four years later Officer requested that he be granted service retirement benefits pursuant to Retirement and Social Security Law Article 15, contending that “other correction officers … had been granted service retirement under Article 15.”

After an administrative hearing, the Hearing Officer concluded that Officer was not eligible for Article 15 service retirement benefits and the Comptroller adopted the Hearing Officer’s decision, in which he included a supplemental conclusion of law, and denied the Officer’s request for Article 15 retirement benefits. Officer appealed the Comptroller’s decision.

The Appellate Division confirmed the Comptroller’s determination, noting that “The Comptroller has exclusive authority to determine all applications for retirement benefits and the determination must be upheld if the interpretation of [the] controlling retirement statute is reasonable and the underlying factual findings are supported by substantial evidence."

Retirement and Social Security Law §600 (a) (2) (a) provides that "[m]embers in the uniformed personnel in institutions under the jurisdiction of the [D]epartment of [C]orrections and [C]ommunity [S]upervision of New York [S]tate" are excluded from Retirement and Social Security Law Article 15 benefits.”

A representative from the New York Stateand Local Employees' Retirement System testified that retirement benefits are based upon an applicant's job title at the time of the individual’s retirement, and Officer admittedly retired from service from the position of correction officer.

While Officer argued that the denial of his request for Article 15 service retirement benefits was irrational based upon the fact that other correction officers were granted such benefits, the Appellate Division said the record reflects that those officers had “transferred to civilian job titles prior to retirement.”

The court’s conclusion: The Comptroller's determination that Officer was ineligible for Article 15 service retirement benefits is consistent with the applicable statutory provision and supported by substantial evidence and will not be disturbed.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04555.htm

Guidelines for the promulgating of rules and regulations by an administrative agency

Guidelines for the promulgating of rules and regulations by an administrative agency

Greater N.Y. Taxi Assn. v New York City Taxi & Limousine Commn., Court of Appeals, 2015 NY Slip Op 05514

In this case the Court of Appeals addresses the separation of powers doctrine in cases where a legislative body delegates to an administrative agency the power to “fill in the details” of the legislation by adopting rules and, or, regulations. 

The basic standard: the rules or regulations adopted by an administrative agency to implement a statute may not be inconsistent with the statutory language nor inconsistent with the underlying purposes of the legislation authorizing the promulgation of such rules or regulation.

The genesis of the case was the New York City Taxi & Limousine Commission’s [TLC] efforts to replace the Checker cab -- "the iconic taxi of yesteryear "– with “an iconic Taxi of Tomorrow” [ToT] by adopting certain rules setting new standards for such vehicles.

An association of medallion owners and an individual owner of a taxi fleet commenced a combined CPLR Article 78 proceeding and declaratory judgment action, seeking to invalidate the ToT rules and obtain a related declaration. The complaint alleged, among other things, that the TLC lacked authority to enact the ToT rules and violated the separation of powers doctrine in doing so.

Supreme Court held that the TLC had exceeded its authority under the City Charter and had violated the separation of powers by intruding in the City Council's domain. The court then declared that the ToT rules were invalid [42 Misc 3d 324]. The Appellate Division reversed the Supreme Court’s decision [see 121 AD3d 21].

Citing Boreali v Axelrod, 71 NY2d 1, the Court of Appeals affirmed the Appellate Division’s ruling.

The court said that the issues of delegation of power and separation of powers overlap and are often considered together, noting that “if an [administrative] agency was not delegated the authority to enact certain rules, then it would usurp the authority of the legislative branch by enacting those rules,” explaining that “[t]he constitutional principle of separation of powers . . . requires that the [l]egislature make the critical policy decisions, while the executive branch's responsibility is to implement those policies." Further, said the court, “as long as the legislature makes the basic policy choices, the legislation need not be detailed or precise as to the agency's role.”

In Boreali, the Court of Appeals set out four "coalescing circumstances" that are non-mandatory, somewhat-intertwined factors for courts to consider when determining whether an administrative agency has crossed the hazy "line between administrative rule-making and legislative policy-making:"

1. Did the agency do more than "balanc[e] costs and benefits according to preexisting guidelines," but instead made "value judgments entail[ing] difficult and complex choices between broad policy goals" to resolve social problems?”

2. Did the agency merely fill in details of a broad policy or "wrote on a clean slate, creating its own comprehensive set of rules without benefit of legislative guidance?"

3. Was the legislature unsuccessfully in reaching reach agreement on the issue, which would indicate that the matter is a policy consideration for the elected body to resolve?

4. Whether the agency must use its special expertise or competence in the field to develop the challenged rules or regulations.

In this case the Court of Appeals concluded that “[g]iven the broad statutory powers granted to the TLC to set policy as guided by enumerated safeguards and guidelines, the New York City Taxi & Limousine Commissiondid not exceed its authority or intrude on the City Council's domain in violation of the separation of powers doctrine by enacting the ToT rules.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_05514.htm

Termination as "a final agency action” is effected when the letter of dismissal is delivered to the officer or employee

Termination as "a final agency action” is effected when the letter of dismissal is delivered to the officer or employee
2015 NY Slip Op 04892, Appellate Division, Third Department

An internal investigation by the Division of State Police concerning missing evidence resulted in misconduct charges being filed against a State Trooper [Trooper] for allegedly failing to obey a lawful order to truthfully answer questions and knowingly making a false entry in official records. The Division of State Police Hearing Board found Trooper guilty of the two charges and recommended a penalty consisting of a 60-day suspension without pay, a one-year disciplinary probation period and a letter of censure.

Trooper, however, was shown a determination already signed by the Superintendent of State Police imposing the penalty of termination from his employment and was told that he had 10 minutes in which to resign or he would be terminated.

Trooper resigned but subsequently commenced a CPLR Article 78 proceeding seeking to be reinstated. Supreme Court transferred the matter to the Appellate Division for review of the question of  “substantial evidence” supporting the findings of the Hearing Board with respect to Trooper's being found guilty of the charges filed against him.

Initially the Appellate Division considered the question of the Trooper’s resignation, commenting that a resignation "would ordinarily be beyond [its] review,” but noting “exceptions exist where . . . the resignation was allegedly ineffective and involuntary,"* citing Melber v NYS Education Department, 71 AD3d 1216.

As it was undisputed that the Superintendent had signed a written decision terminating Trooper’s employment, which document was shown to him and Trooper was told that he had 10 minutes to accept an "option" of resigning, the Appellate Division ruled that “under the narrow circumstances” of this case Trooper was effectively terminated by a final agency action when he was handed the signed termination document.

Turning to the merits of the issue of “substantial evidence,” the court sustained the hearing panel’s determination as to Trooper’s guilt with respect to the charges filed against him, explaining that “credibility determinations are for the administrative factfinder when conflicting proof is presented.”

Although Trooper offered explanations “for some of the many discrepancies” in his testimony, the Appellate Division said that “this created a credibility question which was resolved against him” and substantial evidence supports the administrative determination.

As to the penalty imposed by the Superintendent, the court said “we have observed that ‘a State Trooper holds a position of great sensitivity and trust and a higher standard of fitness and character pertains to police officers than to ordinary civil servants," citing Bassett v Fenton, 68 AD3d at 1387-1388. The court said that the penalty imposed, termination, did not shock its sense of fairness in view of findings of Trooper’s “repeated false statements where the underlying matter implicated missing evidence, together with [Trooper’s] failure to accept responsibility even when confronted with contrary documentary proof.”

* Concerning the issue obtaining an "involuntary resignation," in Rychlick v Coughlin, 63 NY2d 643, the Court of Appeals  pointed out that threatening to do what the appointing authority had a right to do -- in this instance filing disciplinary charges against the employee if the employee did not submit his resignation from his position -- did not constitute coercion so as to make the resignation involuntary.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_04892.htm

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The 2015 edition of The Discipline Book, a concise guide to disciplinary actions involving public officers and employees in New York State, is now available in two formats - as a paperback print edition and in an electronic [e-book] edition. For more information click on
http://thedisciplinebook.blogspot.com

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The 2015 edition of the Discipline Book

The 2015 edition of this concise guide to disciplinary actions involving public officers and employees in New York State is now available in an electronic [e-book] edition. For more information click on http://thedisciplinebook.blogspot.com/