Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim

Terminated after a disciplinary hearing, employee’s Article 78 petition dismissed because he failed to file timely Education Law §3813(1) notice of claim  

Idolor v Board of Coop. Educ. Servs. of Nassau County, 2015 NY Slip Op 09284, Appellate Division, Second Department

The Board of Cooperative Educational Services of Nassau County [BOCES] filed disciplinary charges against one of its employees, Lucky Idolor. The disciplinary hearing officer found that Idolor was guilty of misconduct and insubordination. BOCES adopted the findings of the hearing officer and dismissed Idolor from his position.

Idolor filed a CPLR Article 78 petition challenging BOCES’ action. BOCES, contending that Idolor petition was untimely because he had failed to comply with the notice of claim requirements set out in Education Law §3813(1), moved to have Idolor’s petition as untimely. Supreme Court granted BOCES’ motion and dismissed Idolor’s petition, whereupon Idolor appealed the Supreme Court’s ruling to the Appellate Division.

The Appellate Division sustained the lower court’s ruling, explaining that the filing of the §3813(1) notice of claim within three months after Idolor’s claim arose was a condition precedent to his bringing a timely Article 78 action, an action in which he petitioned the court for both [1] equitable relief and [2] for damages.

In Sephton v Board of Education of the City of New York, 99 AD2d 509, [motion for leave to appeal denied, 62 NY2d 605], the Sephton court noted that "the 'tenure rights' of teachers are ... considered a matter in the public interest and therefore §3813 is not applicable to cases seeking to enforce such rights.” However, the court said that the Sephton plaintiffs were seeking “to recover back pay due to the allegedly improper restructuring of their salaries,” and “[s]uch a claim seeks vindication of private rights" and a [timely §3813(1)] notice of claim was a condition precedent to the maintenance of their action seeking to recover back pay. Again, in Mills v County of Monroe, 59 NY2d 307, the court ruled that where a plaintiff seeks private relief, damages, or reinstatement to his or her former position, in this instance for alleged unlawful employment discrimination in violation of the Executive Law, the filing of a timely notice of claim was a condition precedent to Mills' maintaining the lawsuit.

However, a timely appeal to the Commissioner of Education constitutes a “functional” notice of claim required by Section 3813(1) of the Education Law as the court ruled in Mennella v Uniondale UFSD, App. Div., 2nd Dept., 287 AD2d 636, Motion for leave to appeal denied, 98 NY2d 602.

 

N.B. Another “statute of limitations” to be remembered: §3020-a.5.a of the Education Law, Appeal, provides as follows: “a. Not later than ten days after receipt of the hearing officer's [§3020-a ] decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding.” Further, subdivision b of §3020-a.5 provides “b. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.”

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2015/2015_09284.htm

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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