A court’s review of the disciplinary penalty imposed on an employee is whether the penalty imposed constitutes an abuse of discretion as a matter of law

A court’s review of the disciplinary penalty imposed on an employee is whether the penalty imposed constitutes an abuse of discretion as a matter of law

Peterson v City of Poughkeepsie, 2015 NY Slip Op 07031, Appellate Division, Second Department

Ronald J. Knapp, as Acting City Administrator of the City of Poughkeepsie, terminated Carleton Peterson, a street supervisor employed by the City of Poughkeepsie Department of Public Works, after Peterson was found guilty of three charges of misconduct, which included, falsifying his time records.

Following his termination, Peterson commenced an Article 78 proceeding to review Knapp’s determination. The Appellate Division granted Peterson’s petition to the extent of annulling the finding of guilt with respect to certain charges, dismissing those charges, and annulling the penalty imposed. The court than remitted the matter to the City for a new determination as to the penalty to be imposed in connection with the charges that were sustained.

After a new hearing Knapp again imposed the penalty of termination of Peterson's employment.

Peterson commenced this second CPLR Article 78 proceeding seeking, among other things, a review of the penalty imposed following the second disciplinary hearing. The Supreme Court annulled Knapp’s decision terminating Peterson’s employment and remitted the matter to the City for a new hearing on the issue of the imposition of a lesser penalty and a new determination thereafter.

Poughkeepsie appealed the Supreme Court’s ruling and the Appellate Division reversed the Supreme Court’s order annulling Knapp’s decision to terminate Peterson.

The Appellate Division said that “Judicial review of an administrative penalty is limited to whether the mode of penalty or discipline imposed constitutes an abuse of discretion as a matter of law” and, citing Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, observed that a court may only set aside an administrative agency's determination if the punishment or discipline imposed is "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness," thus constituting an abuse of discretion as a matter of law.

The Appellate Division then ruled that under the circumstances of this case, where the Peterson was found guilty of having submitted a falsified time sheet, the penalty of dismissal from employment “was not so disproportionate to the offenses as to be shocking to one's sense of fairness.”

Accordingly, said the court, Supreme Court should have denied that branch of Peterson’s petition seeking to annul the Acting City Administrator's determination terminating his employment.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07031.htm

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Is it a health insurance claim or a workers compensation claim?

Is it a health insurance claim or a workers compensation claim?

Source: CFO Daily Alert

The CFO Daily Alert reports that for some common ailments, like soft-tissue back, knee, or shoulder pain, it’s often not clear whether the injury was work-related or non-occupational. Physicians are given a degree of discretion under workers’ compensation law to make that determination, which creates a conflict of interest, because they usually end up benefiting financially by classifying the injury as work-related. An ongoing shift to the “capitation” model for reimbursing medical providers leads them to classify more injuries as work-related.

This is because workers’ compensation reimbursement rates are established by law, and they are almost always at higher rates than rates contracted with insurers or self-insured employers.

The article is posted on the Internet at:

http://ww2.cfo.com/workers-compensation/2015/10/trendy-health-care-payment-scheme-hikes-workers-compensation-costs/?utm_campaign=CFODailyAlert&utm_nooverride=1&utm_source=CFO-email&utm_medium=email&utm_content=CFODailyAlert_Thursday_2015-10-8&utm_term=workers-compensation&mkt_tok=3RkMMJWWfF9wsRonvarPZKXonjHpfsXw6uwoXK%2Bg38431UFwdcjKPmjr1YEJSsdlI%2BSLDwEYGJlv6SgFT7TFMaxo0bgJWRM%3D

Application of a former police officer removed from the position by operation of law for reinstatement to the position denied

Application for reinstatement of a former police officer removed from the position pursuant to Public Officers Law §30(1)(e) denied

Roth v Town of Newburgh, 2015 NY Slip Op 07033, Appellate Division, Second Department

Public Officers Law §30(1)(e) is a self-executing statute which provides that a public office is deemed vacant upon incumbent’s conviction of a felony, or a crime involving a violation of his or her oath of office.

However, a public officer, other than an individual elected to public office, removed from his or her public office pursuant to §30(1)(e) "may apply for reinstatement to the appointing authority upon reversal or the vacating of such conviction where the conviction is the sole basis for the vacancy."

§30(1)(e) further provides that upon the receipt of an application for reinstatement from an officer who had been so removed “by operation of law,” "the appointing authority shall afford such applicant a hearing to determine whether reinstatement is warranted."

Roger S. Roth submitted an application for reinstatement to his former position as a police officer following his removal from his position pursuant to §30(1)(e).

A hearing was held and the hearing officer recommended that Roth’s application for reinstatement to his former position be denied. The appointing authority adopted the findings and recommendations of a hearing officer, denying Roth’s application for reinstatement to his position as a police officer. Roth appealed the denial of his application for reinstatement.

The Appellate Division sustained the appointing authority’s determination, holding that the denial of Roth’s application for reinstatement to his position as a police officer was supported by substantial evidence in the record and dismissed Roth’s appeal “on the merits.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07033.htm

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The Discipline Book, - A 458 page guide to disciplinary actions involving public officers and employees. For more information click on http://booklocker.com/books/5215.html

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A “memorandum of understanding” that is characterized as an “agreement to agree” is not an enforceable contract

A “memorandum of understanding” that is characterized as an “agreement to agree” is not an enforceable contract

Offit v Herman, 2015 NY Slip Op 07056, Appellate Division, First Department

Michael Offit contended that a memorandum of understanding [MOU] that the parties had signed was a "Type II" agreement under federal case law,* requiring Julian M. Herman to negotiate in good faith to finalize a settlement of various lawsuits among the parties.

Citing IDT Corp. v Tyco Group, 13 NY3d 209, the Appellate Division said the New York Court of Appeals has rejected "the rigid classification into Types'" in favor of asking "whether the agreement contemplated the negotiation of later agreements and if the consummation of those agreements was a precondition to a party's performance."

The MOU at issue stated that the parties had reached an "agreement in principle, subject to documentation acceptable to the parties and court approval." However, noted the Appellate Division, in prior motion practice, counsel for Offit admitted that the MOU was merely "an agreement to agree."

* The differences between Type I preliminary agreements and Type II preliminary agreements as applied by the federal courts is considered at:

http://www.insidecounsel.com/2013/03/14/litigation-preliminary-agreements-may-not-be-as-pr

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_07056.htm

Employer directed to reconsider the penalty imposed following the annulment of some, but not all, of the disciplinary charges and specifications filed against the employee

Employer directed to reconsider the penalty imposed following the annulment of some, but not all, of the disciplinary charges and specifications filed against the employee

Graham v New Hampton Fire Dist., 2015 NY Slip Op 06917, Appellate Division, Second Department

The New Hampton Board of Fire Commissioners adopted, in part and rejected in part the recommendation of a hearing officer, made after a disciplinary hearing and found Daniel Graham, a member of the fire department, guilty of insubordination, misconduct, incompetence, and conduct unbecoming of a member of the fire department. The Fire District imposed the penalty of termination of Graham’s employment with the district.

Graham appealed and the Appellate Division vacated the penalty imposed, termination, because it annulled some, but not all of the charges, filed against Graham. The court then confirmed the determination with respect to the remaining charges and specifications and remanded the matter the New Hampton Board of Fire Commissioners for to determine the appropriate penalty to be imposed in consideration of the charges that survived the Appellate Division’s scrutiny and to then impose that penalty.*

The court explained that judicial review of an administrative determination made after a hearing at which evidence is taken is limited to consideration of whether that determination is supported by substantial evidence. While the Board's determination as to Specification One of Charge One is supported by substantial evidence in the record, the Appellate Division said that the Board's determination that Graham was guilty of the misconduct alleged in Specification Two of Charge One must be annulled because it was “duplicative of the Board's determination in connection with Specification One of Charge One, citing Levi v Lauro, 58 AD3d 851.

The court found that with respect to Specification One of Charge Two, the Board's determination was supported by substantial evidence.** The Appellate Division noted that the Board had credited one witness's testimony that was based in part upon the statements and observations of her children. However, said the court, hearsay statements are admissible in administrative proceedings, and may form the basis for an agency's determination.

Observing that certain testimony conflicted with other testimony and that such conflicting testimony presented issues of credibility, the Appellate Division explained that, in the works of the court, “Where room for choice in administrative fact finding exists, a reviewing court may not weigh the evidence or reject a rational credibility determination made by the administrative decision maker,” citing Berenhaus v Ward, 70 NY2d 436.

* The Board had imposed a penalty of termination of Graham’s membership in the District's fire department upon a finding that he was guilty of Charges One and Two. As the court dismissed Charge One, Specification Two and Charge Two Specification Two, the penalty imposed was annulled and the matter returned to the Board to consider the appropriate penalty to be imposed upon Graham with respect to the surviving charges and specifications, Charge One, Specification One and Charge Two, Specification One.

** As to the Board's determination with respect to Specification Two of Charge Two, the Board conceded that its determination was not supported by substantial evidence and thus was annulled.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_06917.htm

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A Reasonable Penalty Under The Circumstances - a 618-page e-book focusing on determining an appropriate disciplinary penalty to be imposed on an employee in the public service. For more information click on http://nypplarchives.blogspot.com/

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