Probationer challenging dismissal from the position claims to have suffered extreme emotional distress

Probationer challenging dismissal from the position claims to have suffered extreme emotional distress

Petkewicz v Dutchess County Dept. of Community and Family Servs., 2016 NY Slip Op 01854 [Action I]

Petkewicz v Dutchess County Dept. of Community and Family Servs., 2016 NY Slip Op 01819 [Action II]

Susan Petkewicz filed two lawsuits against the Dutchess County Department of Community and Family Services in Supreme Court. In the first, Action I, Petkewicz asked Supreme Court to annul the termination of her employment during her probationary period. In the second,  Action II,  Petkewicz sued to recover damages, alleging the intentional infliction of extreme emotional distress arising out of the termination of her employment as a probationary employee with the Dutchess County Department of Community and Family Services.

Supreme Court dismissed both Action I and Action II. Petkewicz appealed both decisions but the Appellate Division affirmed both Supreme Court rulings.

Action I

Addressing Petkewicz’s appeal concerning the merits of her termination from her probationary employment, the Appellate Division said that Petkewicz had received three written appraisals of her performance, the last two of which rated her performance as unsatisfactory and ultimately she was terminated prior to the expiration of the 12-month probationary period.

Noting that a probationary employee "may be terminated without a hearing and without a statement of reasons in the absence of a demonstration that the termination was in bad faith, for a constitutionally impermissible or an illegal purpose, or in violation of statutory or decisional law,"*the Appellate Division, citing Lane v City of New York, 92 AD3d 786,  said “Judicial review of the discharge of a probationary employee is limited to whether the determination was made in bad faith or for an improper or impermissible reason.” Further, said the court, the employee has "the burden of raising a material issue as to bad faith or illegal reasons, and conclusory allegations of misconduct or unlawfulness are insufficient to meet this burden."

The Appellate Division concluded that Petkewicz failed to meet her burden of raising a material issue as to bad faith or any other improper reason for her discharge, explaining that the record demonstrated her termination prior the satisfactory completion of her probationary period “had a rational basis, and that her allegations to the contrary were either conclusory or speculative in nature.”

Action II

In addressing Petkewicz’s appeal concerning the alleged “infliction of emotional distress the Appellate Division noted that in Klein v Metropolitan Child Services, Inc., 100 AD3d 708, that court held "The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress"

Petkewicz claimed that her supervisor, Diane Malone, “was overtly hostile, failed to provide her with meaningful mentoring and constructive feedback, and improperly prejudged her ability to perform her work duties, leading to her discharge.” Petkewicz also contended that the Department acquiesced in Malone's wrongful conduct, which was “extreme and outrageous,” and that such conduct was intended to and did cause her extreme emotional distress.

The Appellate Division, affirming the Supreme Court’s decision granting the Department’s motion to dismiss Petkewicz’s complaint, said that “Even accepting as true the allegations in the complaint regarding the defendants' conduct, and according the plaintiff the benefit of every possible favorable inference, the defendants' conduct was not so extreme or outrageous as to satisfy the first element of intentional infliction of emotional distress.”

Addressing another issue raised in Supreme Court by Petkewicz, the Appellate Division rejected Petkewicz’s argument that Supreme Court should have recuses itself, holding that “Supreme Court providently exercised its discretion in denying [Petkewicz’s] cross motion for recusal,” explaining that [1] Petkewicz failed to establish that there was a basis for recusal pursuant to Judiciary Law §14 and [2] failed to set forth any proof of bias or prejudice on the part of the Supreme Court Justice.

* Case law indicates that a probationary employee may be terminated at any time after the completion of his or her minimum period of probation and prior to his or her completion of the maximum period of probation unless otherwise provided by a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. In contrast, if the probationer has not yet completed his or her minimum period probation, he or she is entitled to “notice and hearing” as a condition precedent to termination on the theory that the individual is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position [see York v McGuire, 63 NY2d 760].

The decision in Action I is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01854.htm

The decision in Action II is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01819.htm

Removing a volunteer firefighter from his or her position

Removing a volunteer firefighter from his or her position
Dolan v New Hyde Park Fire Dept., 2016 NY Slip Op 01844, Appellate Division, Second Department

Michael Dolan, Sr., an elected member of the New Hyde Park Board of Fire Commissioners [Board], also served as a member of the New Hyde Park Fire Department [Department].

The Board filed disciplinary charges against Dolan pursuant to General Municipal Law §209-L* alleging that he had violated certain Rules and Regulations of the New Hyde Park Fire District. After a disciplinary hearing conducted by a hearing officer, the Board adopted the findings and recommendation of the hearing officer and dismissed Dolan from his position as a volunteer firefighter with the Department.

Dolan filed a petition pursuant to CPLR Article 78 against the Department and the Board seeking a court order [1] annulling the determination of the Board and [2] compelling the Board and the Department to reinstate him to his former position.

Dolan contended that the actions for which he was removed from his position as a firefighter were actions taken in his capacity as an elected Commissioner on the Board rather than as a member of the Department and, therefore, the only permissible remedy was to initiate proceedings to remove him as a Commissioner pursuant to Public Officers Law §36** rather than by taking disciplinary action pursuant to General Municipal Law §209-L.

Supreme Court granted Dolan’s petition; the Board, and the Department appealed.

The Appellate Division reversed the lower court’s ruling, explaining that “the fact that Dolan could also have been removed from his position as Commissioner pursuant to Public Officers Law §36 did not abrogate the Board's right to remove him as a member of the fire department” pursuant to General Municipal Law §209-L."

As to the merits of the disciplinary action taken against Dolan, the court said that “the fire district sufficiently established that Dolan violated a provision of the Rules and Regulations of the New Hyde Park Fire District that "[a]ll members shall conduct themselves at all times in such a manner so as not to bring disgrace or adverse criticism or ill feeling against the Company, Department, or District . . . Violation of this rule will be grounds for dismissal." This provision, said the court, applied to Dolan as a firefighter.

In addition, the Appellate Division ruled that “The evidence was also sufficient to establish that Dolan violated the provision of the Supplemental Rules of Conduct and Procedure …. [that] [i]t shall be the duty of all members and officers to refrain from taking district, department and company property without proper authorization."

As to Supreme Court’s opining that the Board's determination regarding Dolan’s dismissal should have been annulled on the basis that the three Commissioners who rendered it should have each recused themselves, the Appellate Division said that “there was no evidence that those three Commissioners had such personal involvement as would mandate recusal.”

However, said the court, the Supreme Court did not reach the issue concerning the “excessiveness of the punishment” imposed on Dolan. Accordingly the Appellate Division, citing Featherstone v Franco, 95 NY2d 550, remitted the matter to the Supreme Court for consideration of whether the penalty of dismissal “was so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness”.

* §209-L provides that “The authorities having control of fire departments of cities, towns, villages and fire districts may make regulations governing the removal of volunteer officers and volunteer members of such departments and the companies thereof.”

** §36 of the Public Officer Law provides for the removal of a town, village, improvement district or fire district officer by a court.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01844.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html 

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Individual cannot be found guilt of misconduct not charged in the notice of discipline

Individual cannot be found guilt of misconduct not charged in the notice of discipline
Wise v New York City Human Resources Admin., 2016 NY Slip Op 01775, Appellate Division, First Department

Iris Wise was terminated from her position after being found guilty of participating in a scheme to improperly transfer cases to the East End Job Placement Center in violation of New York City’s Human Resources Administration Code of Conduct §III(1), (4), (11) and (37) and other laws and directives.

Considering Wise’s appeal, the Appellate Division ruled that the finding that Wise violated Code of Conduct §III(11) must be vacated. The court explained that Wish had not been charged with violating that section and thus had no reasonable opportunity to respond to such a charge.

In contrast, the court said that with respect to the remaining charges, substantial evidence in the form of testimony at the hearing, admissions and documentary evidence, including investigation reports, case transfer documents, lists, emails, and regional performance results, supported the administrative determination by establishing that Wise, “a deputy director ….  knowingly and actively participated with her immediate supervisors in a scheme to transfer job placement cases from other agency centers …. so as to satisfy the agency's job-placement goals for East End Centerand to reduce agency pressure on the center arising from years of under-performance.”

As to the penalty imposed by the appointing authority, termination, the court said that “under the circumstances,” such a penalty did not shock one's conscience or sense of fairness, citing Kelly v Safir, 96 NY2d 32.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01775.htm

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A Reasonable Penalty Under The Circumstances - a 618-page volume focusing on New York State court and administrative decisions addressing an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence. For more information click on http://booklocker.com/7401.html

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Administrative determination annulled after being found to be arbitrary and capricious and in violation of the relevant regulation

Administrative determination annulled after being found to be arbitrary and capricious and in violation of the relevant regulation
Niang v New York City Dept. of Educ., 2016 NY Slip Op 01770, Appellate Division, First Department

The New York City Department of Education permanently revoked Babacar Niang’s certification to drive a school bus because he failed to submit to a drug test on the day on which he was involving in an accident. The Appellate Division unanimously annulled, the Department’s decision, reinstated Niang’s certification and  remanded the matter “for a determination of incidental damages, if any.”

The Appellate Division, noting that the appropriate test in this action was  “the arbitrary and capricious standard of review,” held that the Department’s determination revoking Niang's certification to drive a school bus was “arbitrary and capricious and contrary to its own regulation.”

The court explained that Chancellor's Regulation C-102, reflecting its new policy, does not provide for revocation where a bus driver fails to take a nonrequired drug test. The C-102 provisions requiring a postaccident test explicitly apply only when the accident involves loss of life, bodily injury, disabling damage to the vehicle, or after a third accident within any twelve month period. However, said the Appellate Division, that provisions does not apply here in that it was Niang’s first accident and that no one was injured and no vehicle was disabled.

The decision also notes that Niang “took a drug test within 24 hours and that the test was negative.”

Accordingly, said the court, Niang “is entitled to a hearing to determine whether any incidental damages resulted” as a result of the Department’s revocation of his certification to operate a school bus.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2016/2016_01770.htm

Selected reports issued by the Office of the State Comptroller during the week ending March 19, 2016

Selected reports issued by the Office of the State Comptroller during the week ending March 19, 2016

Click on text highlighted incolor to access the entire report

Comptroller DiNapoli and A.G. Schneiderman Announce Conviction of Atlanta Resident in Pension Fraud Case
New York State Comptroller Thomas P. DiNapoli and Attorney General Eric T. Schneiderman announced the conviction and sentence of Richard L. Cook, III, 58, a resident of Atlanta, for the crime of Grand Larceny in the Third Degree, for stealing over $204,000 in state pension benefits issued to his deceased mother.

State Comptroller Thomas P. DiNapoli announced his office completed audits of the following school districts and BOCESs

Brushton-Moira Central School District, Financial Condition

Clinton-Essex-Warren-Washington Board of Cooperative Educational Services - Payroll

Clyde-Savannah Central School District - Financial Condition

Oneida-Herkimer-Madison Board of Cooperative Educational Services - Claims Payments

Patchogue-Medford Union Free School District - 2016-2017 Proposed Budget

Ravena-Coeymans-Selkirk Central School District - Payroll

New York Stateschool aid trends

Over the past ten years, state aid to school districts has increased $6 billion to $23.3 billion in 2015-16, according to a report issued today by State Comptroller Thomas P. DiNapoli which examined school aid patterns and trends in New York.

“School aid is the largest single state-funded expenditure within the budget,” said DiNapoli. “As the start of a new fiscal year approaches, this report is intended to provide policymakers and the public additional information on education funding in New York.”

Over the past decade, school aid has averaged 23.6 percent of state-funded expenditures. The Division of the Budget projects this share to increase to 25.6 percent over the next three years.

The largest component of state school aid is Foundation Aid, a statutory formula enacted in 2007 as the result of a ruling by the State Court of Appeals in the Campaign for Fiscal Equity lawsuit. After the ruling, the state committed to spend an additional $5.5 billion, using a new, transparent funding formula phased in over four years, adjusting aid for differences in both capacity of districts to raise local taxes and costs to provide services.

Following increases of just over $1 billion in school years ending in 2008 and 2009, state budgets during and just after the recession froze Foundation Aid. Starting in the 2012-13 state budget, Foundation Aid distributions increased by between $112 million and $428 million per school year.

Current funding for Foundation Aid is $15.9 billion, compared to the original projection of $18.1 billion by the fourth year of the program.

DiNapoli’s report also shows that starting in 2010-11, the state reduced school aid from levels otherwise driven by statutory formulas by $1.4 billion. These reductions – known as the Gap Elimination Adjustment, or GEA – grew to $2.6 billion in SY 2011-12. The GEA helped New York to close a multi-billion dollar budget deficit by assigning a portion of the state’s funding shortfall to all school districts as reductions in state aid.

In each year since 2012-13, the state has reduced the impact of the GEA by including a separate formula for unrestricted “GEA Restoration Aid” in the budget. This formula has had different calculations in each year, but the net impact over the past four years has been to reduce the GEA’s effect on high-need districts more quickly than on average or low-need districts.

For the upcoming 2016-17 state fiscal year, the Executive Budget proposes a total school funding increase of $991 million, including $266 million in Foundation Aid and the elimination of the GEA entirely for 200 mostly high need districts and reducing it by at least 30 percent for the remaining districts.

Local revenues, predominantly property tax collections, are the largest source of school funding. The relative share of school funding by source has also fluctuated in recent years, with the state’s share peaking at 39.1 percent in 2008-09 and dropping to 33.7 percent by 2011-12. Last year, the state’s share was 35.9 percent, consistent with the average for the ten most recent years, while local revenues made up 59.7 percent of total funding last year.

DiNapoli’s report also highlighted:

• Total state aid funding for schools is projected to climb to nearly $28 billion by 2019-20;

• Expense-based aids – state funding for items such as textbooks, student transportation and the construction of school facilities – have not seen major formula changes during the last ten years;

• In 2015-16, lottery aid is expected to total $3.2 billion, approximately 13.8 percent of overall state expenditures for school aid; and

• Revenue generated from new casinos that will be dedicated to school aid is expected to reach $168 million in 2019-20.

For more information, read the full report: New York State School Aid: Two Perspectives:
http://www.osc.state.ny.us/localgov/pubs/research/schoolaid2016.pdf