Town may provide for legal defense of councilman

Town may provide for legal defense of councilman

Opinions of the Attorney General

The Attorney General indicated that if a town councilman is sued for libel for remarks he made at a Town Board meeting, he may request that the Board provide for his defense. If the Board refuses, and he wins, he may recover the reasonable costs of his defense by an action against the Board.

N.B.  See the Corning v. Laurel Hollow, 48 NY2d 348, in which the Court held that without a statute providing for such reimbursement such payment would constitute an unlawful gift of public monies.

Determining if an individual is an employee of an employer

Determining if an individual is an employee of an employer

Griffin v. Sirva Inc., USCA, 2nd Circuit, Docket No. 15-1307

The New York Court of Appeals answered a certified question from the Second Circuit, holding that liability under §296(6) and under §296(15) of the New York State Human Rights Law [NYSHRL] is limited to an aggrieved party's employer.

The New York Court of Appeals then answered a second certified question by identifying the four factors to use in determining whether an entity is an aggrieved party's employer. On the basis of New York case law, the court identified the four factors as follows:

1. The selection and engagement of the employee by the entity;

2. The payment of salary or wages by the entity;

3. The power of dismissal of the individual by the entity; and

4. The entity's power of control over the employee's conduct.

In this case, two individuals had filed suit alleging that Sirva, Inc., as Allied's parent, can be held liable under the NYSHRL for employment discrimination on the basis of the individuals' respective criminal convictions.

Based on the answers to the certified questions by the Court of Appeals, the Second Circuit vacated the district court's grant of summary judgment and remanded the matter for further proceedings.

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/doc/15-1307_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/6e81c29b-fc57-4111-80b3-1d3bdb5f48ee/4/hilite/

Applying the Doctrine of Abatement in a criminal action

Applying the Doctrine of Abatement in a criminal action

United States v Libous, USCA, 2nd Circuit, Docket#15-3979

Under the doctrine of abatement, the government has no right to retain fines imposed pursuant to a conviction that is subsequently vacated.

In this case, the Executrix of the estate of Thomas W. Libous, a former New York State Senator, moved to withdraw his then pending appeal, vacate the underlying judgment of conviction of making false statements to the FBI, and for remand to the district court for dismissal of the indictment and refund the fine and special assessment imposed upon Libous' conviction to his estate.

A federal jury had convicted former New York State Senator Thomas W. Libous of making false statements to the FBI in violation of 18 U.S.C. §1001. At sentencing, the district court imposed a tw-year term of probation on Libous, who doctors determined had less than a year to live, along with a $50,000 fine and the mandatory $100 special assessment.

Although the government consented to the abatement of Libous’ conviction, it opposed the return of the fine and special assessment. Incorrect said the Circuit Court, ruling that the government had no right to retain fines imposed pursuant to a conviction that is subsequently vacated and granted the Executrix's  motion in its entirety.

The court explained that "Under the well-established doctrine of abatement ab initio, when a convicted defendant dies pending an appeal as of right, his conviction abates, the underlying indictment is dismissed. Further, his or her estate is relieved of any obligation to pay a criminal fine imposed at sentence. In effect, all proceedings in the prosecution from its inception are abated.

To comply with this common law rule, said the court, “[T]he appeal does not just disappear, and the case is not merely dismissed. Instead, everything associated with the case is extinguished, leaving the defendant as if he [or she] had never been indicted or convicted.” In other words, “Under the doctrine of abatement ab initio . . . the defendant stands as if he [or she] never had been indicted or convicted.”

This is so because, in the interests of justice, a defendant not stand convicted without resolution of the merits of an appeal and to the extent that the judgment of conviction orders incarceration or other sanctions that are designed to punish the defendant, that purpose can no longer be served.”

As the Supreme Court held in Nelson v. Colorado, 137 S. Ct. 124, “[w]hen a criminal conviction is invalidated by a reviewing court and no retrial will occur,” the state is required under the Fourteenth Amendment’s due process guarantee “to refund fees, court costs, and restitution exacted from the defendant upon, and as a consequence of, the conviction.”

Once a defendant’s conviction is “erased, the presumption of [his or her] innocence [is] restored,” and the state “has no interest in withholding from [a defendant] money to which the [s]tate currently has zero claim of right.”

The Supreme Court, however, said "We express no view on how abatement operates, if at all, in the event the defendant commits suicide pending an appeal as of right.

The Circuit Court then granted the Executrix's motion and vacated Libous' judgment of conviction. It also remanded the matter to the federal district court "for the dismissal of the indictment and the return of the fine and special assessment imposed on Libous pursuant to his now-vacated conviction"

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/480bdaba-f569-4afc-a463-3b392b0da1be/5/doc/15-3979_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/480bdaba-f569-4afc-a463-3b392b0da1be/5/hilite/

National Guard personnel are state employees

 

National Guard personnel are state employees

Formal opinion of the Attorney General

The Attorney General has issued an opinion that National Guard personnel in training status are state employees for the purposes of §17 of the Public Officers Law. §17 provides for the State to defend its employees who are defendants in litigation resulting from the performance of their official duties.

An employee may not be terminated for a constitutionally impermissible reason, in violation of a statutory proscription or in bad faith

An employee may not be terminated for a constitutionally impermissible reason, in violation of a statutory proscription or in bad faith

Appeal of Aminah Lucio, Decisions of the Commissioner of Education, Decision No. 17,090

After addressing the issue of the timeliness of this appeal, which the Commissioner found to be timely, the Commissioner addressed the merits of Aminah Lucio's appeal.

Lucio contended that her U-rating should be annulled because "her due process rights were violated and she was never provided with a copy of the paperwork upon which her employer, the New York City Department of Education [DOE], relied for its determination in advance of the hearing and [it] failed to follow certain rules and regulations contained in Section IV of the Appeal Process in the Rating Manual."*

Lucio also argued that DOE's decision to rate her unsatisfactory and discontinue her probationary services "was arbitrary and capricious, an abuse of discretion, made in bad faith and discriminatory ... [and she was] discontinued due to retaliation and racial discrimination."

The Commissioner explained that standard of proof required to overturn a teacher rating is very high and in the absence of a showing of malice, prejudice, bad faith or gross error, the Commissioner will not substitute his or her judgment for that of the appointing authority and that in such situations the petitioner has the burden of demonstrating a clear legal right to the relief requested and the burden of establishing the facts upon which her or she seeks relief.

In this instance the Commissioner found that Lucio had demonstrated that DOE's determination to give her an unsatisfactory rating "was made in gross error." DOE, said the Commissioner  failed to provide Lucio with any supporting documentation regarding her rating before the hearing, thus preventing Lucio from having any way of knowing what documentation was used as the basis for the performance rating here being challenged.

The Commissioner also noted that the hearing officer found that "there were several other flaws in [DOE's] appeal procedures, commenting that  In Matter of Blaize v. Klein, 68 AD3d 759, the Appellate Division ruled that "a teacher’s failure to receive, before the hearing, the complete set of documents on which the rating was based deprived the teacher of a substantial right, thus rendering the rating made in violation of a lawful procedure and subject to reversal."  

Based on the deficiencies in the review process which undermined the integrity and fairness of the process and the lack of hearing testimony to substantiate DOE's rationale for Lucio's termination, the Commissioner found that its decision to terminate Lucio was made in bad faith. 

Although a board of education has the unfettered right to terminate a probationary teacher’s employment for any reason, such a decision will not be sustained where the petitioner establishes that he or she was terminated "or a constitutionally impermissible reason, in violation of a statutory proscription or in bad faith, and granted Lucio's appeal.

The Commissioner directed DOE to reinstate Lucio to the position "to which she is entitled in accordance with this decision, and provide her with back pay and benefits and seniority credit from August 20, 2010, less any compensation she may have earned in the interim." 

* Click here to Read a FREE excerpt from The Discipline Book concerning the due process rights of public employees in New York State.

N.B. Lucio served in a position in the Unclassified Service of the Civil Service. Providing for the payment of "back pay and benefits" is different in situations involving the reinstatement of an individual in the Classified Service of the Civil Service terminated from his or her position. In 1985 §77 of the Civil Service Law was amended eliminating the deduction for “compensation derived from other employment” upon reinstatement by court order. The same is true with respect to such a reinstatement directed by a civil service commission pursuant to §76 of the Civil Service Law.

The Commissioner's decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume56/d17090