An employee may be subjected to disciplinary action for misusing his or her sick leave accruals

An employee may be subjected to disciplinary action for misusing his or her sick leave accruals

1. Decisions of the Commissioner of Education, Decision 11,111

2. NYC Office of Administrative Trials and Hearings [OATH], OATH Index No. 1468/17

Typically "attendance rules" for public employees permit the employee use his or her sick leave accruals to absent himself or herself from work in the event of personal illness, to care for a family member, including an opposite sex or a same-sex partner or a same-sex spouse, who is ill, for medical appointments, obtaining and training a medical service animal, in connection with pregnancy and other medical situations.

Some jurisdictions permit an employee to absent himself or herself from work without charge to leave credits in the event he or she is subjected to a "medical quarantine" while the availability and use of paid sick leave, sick leave at one-half pay and sick leave without pay by employees in a "collective bargaining unit" pursuant to an employer's "attendance rules" may be subject to provisions set out in a collective bargaining agreement. 

In any event, disciplinary action may be taken being taken against the employee who misuses his or her sick leave benefits.

For example, in Decisions of the Commissioner of Education #11,111, a teacher appealed a disciplinary hearing panel's finding her found guilty of "falsifying records" based on her misusing "family sick leave" benefits and suspending her without pay for nine and one half months.

The panel had found that the teacher had absented herself from work, charging her absence to her sick leave credits for an alleged “family illness” for three days immediately preceding the school district’s spring recess. The teacher, however, chanced to meet her principal at an "out of state" vacation site that they both were visiting on one of the days she had charged to her “family sick leave” leave credits. 

In OATH Index No. 1468/17 OATH Administrative Law Judge John B. Spooner found that a special officer violated his employer's rules when he absented himself from work for seven days using his sick leave accruals in order to remain on the payroll while attending "paid training sessions" being given by a private security company.

Judge Spooner rejected the officer’s claim that he was not working for the private company when he attended its training sessions, explaining that the officer’s signature on a letter accepting a position with the private company and his attending its required pre-employment training program constituted the commencement of an employment relationship with the company.

The judge also sustained charges alleging that the officer disobeyed instructions not to engage in  "outside work" without the prior approval of the Agency.

The ALJ recommended that the officer be terminated from his position with the Agency.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/17_cases/17-1468.pdf.pdf

Town Clerk arrested for allegedly attempting to "boost" her retirement benefits

Town Clerk arrested for allegedly attempting to "boost" her retirement benefits

Source: Office of the State Comptroller

New York State Comptroller Thomas P. DiNapoli reports that Springport Town Clerk Deborah Waldron has been arrested for allegedly trespassing on a town computer in an effort to boost her retirement benefits with the New York State and Local Retirement System.

The Comptroller's audits and investigations have led to over 130 arrests and more than $30 million in restitutions.

Comptroller DiNapoli’s investigations focusing on allegations of retirement fraud alone has led to 24 arrests and the recovery of nearly $3 million in retirement funds since 2011.

Fighting such corruption is among the Comptroller's top priorities and in 2011 he, together with New York State Attorney General Schneiderman, created the Operation Integrity task force. The work of this task force has led to the recovery of unlawfully diverted taxpayer dollars. Among those convicted as the results of these efforts are former State Sen. Shirley Huntley for activities involving "member fraud;" of former Member of the Assembly William Scarborough for campaign and travel fraud; and of six Metropolitan Council on Jewish Poverty executives involving a multi-million dollar embezzlement.

The Comptroller's press release concerning Waldron's arrest is posted on the Internet at:

http://www.osc.state.ny.us/press/releases/may17/051917a.htm?utm_source=weekly+news&utm_medium=email&utm_term=corruption&utm_content=20170521&utm_campaign=fiscal+oversight

U. S. Supreme Court decision provides some clarification concerning the legal standard applicable to students with a disability receiving an appropriate public education

U. S. Supreme Court decision provides some clarification concerning the legal standard applicable to students with a disability receiving an appropriate public education

Source: New York Municipalities Blog, Harris Beach, PLLC

On March 22, 2017, in Endrew F. v. Douglas County School District, the United States Supreme Court issued a ruling focusing on the appropriate legal standard when determining if  a student with a disability is receiving an appropriate free public education (FAPE) via the student's individualized education program (IEP).

The New York Municipalities Blog item is posted on the Internet at:

https://www.harrisbeach.com/new-york-municipalities-blog/fape-standard-ieps-clarification-attempted-supreme-court/

The Supreme Court's decision is posted on the Internet at:
https://www.supremecourt.gov/opinions/16pdf/15-827_0pm1.pdf

An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court

An employee's failure to use the grievance procedure set out in the relevant collective bargaining agreement before commencing an Article 78 action may not be excused by the court
Finkelstein v Board of Educ. of the City Sch. Dist. of the City of N.Y., 2017 NY Slip Op 03850, Appellate Division, First Department

Supreme Court annulled the New York City's Board of Education's [BOE] discontinuing Petitioner's probationary employment and ordered BOE to reinstate Petitioner to her former position "with full salary and benefits retroactive to September 30, 2014."

The Appellate Division unanimously vacated the Supreme Court's ruling, "on the law" with respect to Petitioner's reinstatement to her former position and payment of "full salary and benefits," but, citing Tucker  v Board of Educ., Community School Dist. No. 10, 82 NY2d 274, found that Petitioner was entitled to nine days' pay because she was given inadequate notice of her termination.

The court explained that Petitioner failed to avail herself of the grievance procedure set forth in her collective bargaining agreement before commencing the instant action seeking relief under CPLR Article 78 and thus Supreme Court "erred in relieving [Petitioner] of her obligation to exhaust her administrative remedies."*

In any event, said the court, a probationary employee may be terminated for "almost any reason, or for no reason at all," as long as it is not "in bad faith or for an improper or impermissible reason." Upon such termination "[T]he burden falls squarely on the petitioner to demonstrate, by competent proof, that a substantial issue of bad faith exists, or that the termination was for an improper or impermissible reason, and mere speculation, or bald, conclusory allegations are insufficient to shoulder this burden."

In this instance the Appellate Division found that the record indicated that Petitioner's dismissal was made in good faith and was based on substantiated findings after an independent investigation demonstrating that she neglected her duties and falsified records.

As to Petitioner's claim of the investigator's delay in publishing the written report concerning the matter, the court said that such delay "amounted to a mere technical violation of the collective bargaining agreement," as Petitioner had received timely notice of the allegations, as well as an opportunity to respond, prior to the issuance of the report. The Appellate Division then opined that Supreme Court's "conclusion of bad faith stemming from the lateness of the report was purely speculative."

* However, as the Appellate Division held in Amorosano-LePore v Grant, 56 AD3d 663, the employee's exhaustion of his or her administrative remedies is not required where his or her so doing would constitute an exercise in futility.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_03850.htm

An agency investigating a particular complaint on behalf of an employee may not, without prior notice to the employer, make broad findings of fact involving the employer's "over-all operations" and impose sanctions

An agency investigating a particular complaint on behalf of an employee may not, without prior notice to the employer, make broad findings of fact involving the employer's "over-all operations" and impose sanctions

MTA Bus Co. v New York State Div. of Human Rights, 2017 NY Slip Op 03903, Appellate Division, First Department

The New York State Division of Human Rights [SDHR] found that the MTA's policy of disqualifying all employees with bipolar disorder from working as a bus operator was an unlawful discriminatory act. The Division order MTA to pay a civil fine and penalty of $30,000. MTA appealed and the Appellate Division unanimously annulled the Division's decision and dismissed the complaint.

The Appellate Division noted that the record demonstrates, and the SDHR determined, that the "employee complainant" [Complainant], a bus operator, was placed on restricted duty for reasons unrelated to his alleged disability of bipolar disorder and ultimately terminated from his position. The record also indicated that Complainant had a "reckless driving record and that MTA dismissed him for his conduct in vandalizing three buses in passenger service." The court held that MTA "was justified" in terminating Complainant.

The court, however, said that rather than dismissing the complaint, SDHR proceeded to conclude that "[b]ecause MTA has a blanket policy disqualifying all employees with bipolar disorder from being appointed to, or remaining in, the Bus Operator position and passenger service, and because [MTA] does not individually assess the ability of those with bipolar disorder to perform the essential functions of the job, [MTA's] policy violates the Human Rights Law."

SDHR had not advised MTA that its policies with respect to the employment of individuals with a bipolar disorder were going to be reviewed. Such failure on the part of SDHR, said the court, denied MTA its right to due process.

The Appellate Division explained that although SDHR, its own motion, may investigate and file a complaint alleging discriminatory practices, it did not do in this instance. Rather, while investigating the bus operator's complaint, which was filed solely on his behalf and found that he had not been discriminated against, SDHR could not "and at the same time," make broad findings of fact and impose broad sanctions pertaining to MTA's "over-all operations."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_03903.htm