Work performed by an attorney does not necessarily mean that the resulting work product demanded in the course of discovery is privileged under the attorney-client rule

Work performed by an attorney does not necessarily mean that the resulting work product demanded in the course of discovery is privileged under the attorney-client rule

State of New York, ex rel. Murray v Baumslag, 2015 NY Slip Op 08942, Appellate Division, First Department

Supreme Court, New York County, denied John T. Murray motion for a subpoena requiring Mary Kennedy Baumslag to produce certain records. Murray appealed and the Appellate Division unanimously reversed the Supreme Court’s ruling on the law and the facts and in the exercise of discretion and granted Murray’s motion.

In a complaint made to the director of the Office of Internal Audit and Management Services [Internal Audit] of nonparty City University of New York [CUNY], Murray alleged that Gilbert Baumslag, a former professor at CUNY, had used public education monies for improper purposes. Internal Audit had conducted an investigation concerning the matter, which resulted in a report with recommendations. A redacted version of the report was provided to Murray.

In an action brought on behalf of the State pursuant State Finance Law §187, New York’s False Claims Act,* to recover allegedly falsely procured and misspent funds, Murray was provided a redacted copy of a report made by Internal Audit. The redacted copy of the report provided Murray had omitted several recommendations and Murray asked for the production of the unredacted version of the report, as well as investigators' notes of their interviews with CUNY and CUNY professors, including Gilbert Baumslag, named in the report.

Murray contended that the redacted material was relevant because it identified the actions recommended by the report and taken by CUNY on the basis of the results of the investigation.**

CUNY claimed that the material sought was “work product” and thus privileged.

The Appellate Division was not persuaded by CCNY’s contention, explaining that CCNY’s “conclusory statement is insufficient to invoke the work-product privilege.” The court also noted that although the director of Internal Audit testified that he is an attorney, he was not an attorney for CUNY and the report which he wrote with a CUNY examiner, who is not an attorney, contains nothing that reflects "legal research, analysis, conclusions, legal theory or strategy."

The court then said that “[t]he investigators' notes are not protected by the work-product privilege since there is no evidence that the investigators conducted their interviews with Baumslag and other professors allegedly involved in the improper spending in anticipation of litigation.”

CUNY also argued that the material sought by Murray was, “in any event,” not relevant. The Appellate Division ruled that CCNY failed to establish that the discovery sought is "utterly irrelevant to the action or that the futility of the process to uncover anything legitimate is inevitable or obvious.”

* §188, Definitions, of Article 13 of the State Finance Law, New York’s False Claims Act essentially defines the term “claim” as any request or demand, for money or property that is presented to an officer, employee or agent of the state or a local government while the term “false claim” means “any claim which is, either in whole or part, false or fraudulent.”

** For example, Murray alleged that Baumslag had used public education monies for improper purposes and the Director of Internal Audit had testified that the recommendations may have included asking Baumslag for "reimbursement of expenses."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08942.htm

The employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing officer to resolve

The employee’s testimony at the hearing differed from statements he gave during an investigative raised a question of credibility for the hearing orfficer to resolve

Durudogan v City of New York, 2015 NY Slip Op 08947, Appellate Division, First Department

The New York City dismissed Agah Durudogan, a New York City police officer, from his position following a disciplinary hearing. This action also had the effect of denying him eligibility for vesting retirement benefits.*

Durudogan appealed and Supreme Court, New York County, granted City of New York’s motion to dismiss his Article 78 petition. The Appellate Division subsequently vacated the lower court’s ruling and treated the proceeding as if it had been transferred to it for a “de novoreview pursuant to CPLR 7804(g),” explaining that Durudogan petition had raised an issue of substantial evidence and should have been initially so transferred to it.

Reviewing the matter de novo, the Appellate Division found that substantial evidence supported the City’s determination that Durudogan was guilty of numerous violations demonstrating his inability to conform his conduct to police department regulations.

Durudogan's contention that "the hearing officer improperly relied on hearsay evidence in finding him guilty of engaging in a verbal and physical domestic dispute" is unavailing said the court, finding that the hearing officer's determination was based on Durudogan's inconsistent statements in that his testimony at the hearing differed from the statements that he gave during an investigative interview. Accordingly, said the Appellate Division, the administrative decision was based on the hearing officer's credibility findings which are entitled to deference.

Further, the Appellate Division noted that “an administrative tribunal can rely upon credible hearsay evidence to reach its determination,” citing Muldrow v NYS Dept. of Correction and Community Supervision, 110 AD3d 425.

Citing Kelly v Safir, 96 NY2d 32, the court then found that dismissing Durudogan from the New York City police force was "not shocking to one's sense of fairness” in view of the record which indicated that Durudogan was brought up on five separate charges, based on events that occurred over a three-year period, and he was found guilty of nine of the specifications charged following a hearing.

Considering the possibility of mitigating of the penalty imposed by the City, termination, the Appellate Division concluded that although Durudogan was a decorated officer, with eighteen years of service, who often received high ratings on department evaluations, he also was previously disciplined for insubordination and placed on one-year dismissal probation.

The Appellate Division also noted the ruling in Vecchio v Kelly, 94 AD3d 545, leave to appeal denied 20 NY3d 855, in its decision. 

In Vecchio the court had annulled the Commissioner’s decision to terminate Vecchio in view of the fact it had dismissed certain of the charges brought against him and the remanded the proceeding for the Commissioner's determination of a new penalty. That court further directed that if the Commissioner adhered to imposing the penalty of termination, Vecchio  "should be permitted to apply for vested interest retirement benefits so as to avoid a punishment disproportionate to the offense, namely the extreme financial hardship to his innocent family." The Appellate Division explained that “In Vecchio, unlike here, [that court] found circumstances that warranted restoring Vecchio to a status that made him eligible to apply for the deferred retirement allowance as provided by Administrative Code §13-256(a), (b).

Upon completing its de novoreview the Appellate Division unanimously confirmed the City’s action and dismissed Durudogan petition.

* As Durudogan had less than 20 years of serve at the time of his termination, he lost his entitlement to deferred vested retirement rights upon his dismissal from City's the police force. §13-256 of the Administrative Code of the City of New York explicitly excludes a police officer having less than 20 years of service at the time he or she is discontinued as the result of his or her dismissal, death or retirement from applying for a deferred retirement allowance unless he or she filed an application for a deferred retirement allowance at least 30 days prior to the date of his or her discontinuance from service.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08947.htm

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Record failed to support employee’s claims that the hearing officer refused to permit spouse testify and refused to receive a police report into evidence

Record failed to support employee’s claims that the hearing officer refused to permit spouse testify and refused to receive a police report into evidence

Matter of Pellicano (Department of Labor), 2015 NY Slip Op 09161, Appellate Division, Third Department

The Unemployment Insurance Appeal Board ruled, among other things, that Stephen J. Pellicano, a teaching assistant, was disqualified from receiving unemployment insurance benefits because his employment was terminated due to misconduct.

Following an incident in which Pellicano allegedly failed to appropriately handle a fight among students he was directed to attend a meeting with the school superintendent to discuss possible disciplinary sanctions. Pellicano did not attend the meeting and ultimately was terminated after a disciplinary hearing.

Pellicano appealed, contending that the ALJ improperly denied his request to have his wife testify at the hearing and did not receive the police report into evidence at the hearing.

The Appellate Division rejected his allegations concerning his request to have his spouse testify, noting that the record indicated that Pellicano stated at the onset of the hearing that he did not have any witnesses. As to Pellicano’s claim that the ALJ improperly refused to receive into evidence the police report of the student altercation, the court said that Pellicano [1] did not offer it and [2] it was not relevant to Pellicano’s termination from his position with the school district.

The Appellate Division sustained the Board’s determination and dismissed Pellicano’s appeal.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09161.htm

Improper, immoral and insubordinate behavior “on-the-job” may constitute disqualifying misconduct for the purposes an individual’s eligibility for unemployment insurance benefits

Improper, immoral and insubordinate behavior “on-the-job” may constitute disqualifying misconduct for the purposes an individual’s eligibility for unemployment insurance benefits

Matter of Brown (Commissioner of Labor), 2015 NY Slip Op 08679, Appellate Division, Third Department

Appeal from a decision of the Unemployment Insurance Appeal Board, filed February 20, 2014, which ruled that claimant was eligible to receive unemployment insurance benefits.

A teacher [Teacher] was placed on administrative leave in March 2012 and, shortly thereafter, was served with disciplinary charges pursuant to Education Law § 3020-a and proposed termination as the penalty to be imposed. The Hearing Officer found Teacher guilty of a number of the charge but rather than imposing dismissal as the penalty, directed that Teacher be suspended without pay for the second half of the school year.

Teacher then applied for, and obtained, unemployment insurance benefits during the suspension period without pay.

The appointing authority appealed and an Unemployment Insurance Administrative Law Judge [ALJ], acknowledging that the factual findings made by the Hearing Officer were entitled to collateral estoppel effect, nevertheless concluded that the conduct for which Teacher was disciplined, although "serious," did not rise to the level of disqualifying misconduct that would preclude him from receiving unemployment insurance benefits. The Unemployment Insurance Appeal Board [Board] affirmed the ALJ’s ruling and the appointing authority appealed.

With respect to the question of whether Teacher committed disqualifying misconduct, the Appellate Division noted that this "is a factual issue for the Board to resolve, and not every mistake, exercise of poor judgment or discharge for cause will rise to the level of [disqualifying] misconduct."

That said, the Appellate Division said that Teacher was found to have committed numerous instances of improper, immoral and insubordinate behavior, as well as conduct unbecoming a teacher including making inappropriate, demeaning and sarcastic comments to students, and sending  unprofessional emails to staff and parents. Characterized as a “notable example” of Teacher’s “cavalier treatment of students” the court described an incident in which Teacher improperly confiscated a student's cell phone and impersonated that student in order to learn what another student thought of his teaching abilities.

In addition, said the Appellate Division, Teacher disregarded his employer's policy regarding the use of multimedia tools in the classroom, despite having previously discussed that policy with administrators, and elected to show a violent movie to his students without obtaining parental consent to do so.

The Appellate Division, noting that an employee’s actions that were contrary to established policies and that have a detrimental effect upon the employer's interests have been found by courts to constitute disqualifying misconduct, said that this includes insubordinate conduct and unprofessional behavior that is detrimental to the interests of the employer.

As the Hearing Officer had found that Teacher’s repeatedly engaged in such types of behavior and, under the circumstances presented by this case, the Appellate Division ruled that the Board’s holding that Teacher’s behavior reflected nothing more than "poor judgment . . . is erroneous and is not supported by substantial evidence.”

The Appellate Division reversed the Board's determination and remanded the matter to it "for further" proceedings not inconsistent with this Court's decision."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_08679.htm