Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

Imposing a lesser disciplinary penalty than the one recommended by the disciplinary hearing officer

2017 NY Slip Op 01628, Appellate Division, First Department

The penalty of termination of employment was imposed by a disciplinary hearing officer upon the petitioner in the Article 78 action [Petitioner], a special education home instruction teacher. The hearing officer found that Petitioner had submitted time sheets falsely stating that she had provided instruction to a disabled student and inaccurately indicated that she had reported to certain New York City Department of Education [DOE] schools and libraries over the two-month period in the aftermath of the impact of Hurricane Sandy on New York City and its surrounding area.

There was no question that the hearing officers findings were correct; Petitioner was guilty of all charges and specifications. Petitioner, however, appealed, seeking a court order not to setting aside the findings of misconduct but only an order modifying the penalty imposed on her. Further, Petitioner had acknowledged her error in judgment and pledged to change her practices and never to repeat the error.

Notwithstanding Petitioner's guilt of the charges misconduct filed against her, the Appellate Division ruled that under the circumstances the penalty of termination shocked its sense of fairness and applied the so-called Pell Doctrine [see Matter of Pell v Board of Educ., 34 NY2d 222, 233.

The Appellate Division explained that here there were extraordinary conditions to consider, as well as certain attempts at mitigation undertaken by Petitioner, including the following:

1. Petitioner and her student had been displaced from their homes as a result of Hurricane Sandy and Petitioner, although she had contacted her student's mother, did not provide any educational services to her student.

2. The Department of Education had not provided teachers such as Petitioner with any guidance or information as to the instruction of students displaced by Hurricane Sandy, other than that displaced students would not be penalized.

3. Petitioner had filled out the time sheets in question in advance of the dates to which those time sheets pertained and although she had  no provided instruction to the disabled student on the days indicated in those time sheets, she had instructed other students on each of the dates in question and she would have received the same salary regardless of how many students she had instructed or how many hours she had spent with them, and thus derived no extraordinary benefit from her actions.

4. Prior to Hurricane Sandy Petitioner had an unblemished record over a 17-year period as a special education home instruction teacher and the disabled student's mother had  testified at the disciplinary hearing that Petitioner was a good teacher who worked well with her son and had served his needs more successfully than had other teachers.

The Appellate Division characterized Petitioner's misconduct as "more a matter of lax bookkeeping than implementation of any venal scheme" and no intent to defraud or harm to the public. and any harm to DOE was mitigated. It then explained that "a [disciplinary] result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the agency or institution, or to the public generally visited or threatened by the derelictions of the individuals."

Additional factors to be considered, said the court, "would be the prospect of deterrence of the individual or of others in like situations, and therefore a reasonable prospect of recurrence of derelictions by the individual or persons similarly employed."

Noting that at the hearing Petitioner admitted guilt and acknowledges that her misconduct warrants punishment since the disabled student was deprived of the services of a teacher for two months, the Appellate Division,  . Petitioner does not seek to set aside the findings of misconduct contained in the hearing officer's opinion, but only to modify the penalty imposed on her. She has acknowledged her error in judgment and has pledged to change her practices and never to repeat the error.

Citing Bolt v New York City Dept. of Education, 145 AD3d 450, the Appellate Division said that "There is no evidence that '[Petitioner] could not remedy her behavior'" and that it believed that the penalty of termination, "is disproportionate to the level of [Petitioner's] misconduct and exceeds the standards that society requires to be applied to this offense."

The decision is posted on the Internet at:
http://www.nycourts.gov/reporter/3dseries/2017/2017_01628.htm

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Guidelines applicable when police officer being sued in a civil action seeks to have his or her employer provide for his or her defense and indemnification in the civil action

Guidelines applicable when police officer being sued in a civil action seeks to have his or her employer provide for his or her defense and indemnification in the civil action

2017 NY Slip Op 01549,  Appellate Division, Second Department

A federal civil rights action was commenced in the United States District Court for the Eastern District of New York against, among others, a Nassau County police officer [Petitioner]. The claims in the federal action against Petitioner arose from an off-duty altercation caused by a traffic dispute, during which the Petitioner allegedly fired a gun at the plaintiff in the federal action. Petitioner sought to have his employer, Nassau County, defend and indemnify him in the federal action.

The Nassau County Police Officer Indemnification Board* concluded that Petitioner was not entitled to defense or indemnification by Nassau County because the alleged acts underlying the federal action were not committed "while [Petitioner was engaged] in the proper discharge of his duties and were not within the scope of his employment."

Supreme Court dismissed Petitioner's challenge of the Board's determination and he appealed its ruling.

Citing General Municipal Law §50-l, the Appellate Division said that question of whether a police officer's acts which formed the basis of the civil action were committed in the proper discharge of his or her duties and within the scope of his or her employment is to be determined in the first instance by the Board.

The Board's determination that Petitioner was not acting in the proper discharge of his duties and within the scope of his employment may be set aside by a court only if it was made in violation of lawful procedure, was affected by an error of law, or was arbitrary and capricious or an abuse of discretion.

The Appellate Division, sustaining Supreme Court's ruling, concluded that the record supported the Board's determination that Petitioner "was not acting while in the proper discharge of his duties or within the scope of his employment, since there is a factual basis for the conclusion that the alleged misconduct arose from an altercation that was personal in nature" and was not undertaken in the exercise of his "public responsibility as a police officer."

* General Municipal Law §50-l, in pertinent part, provides for "the defense of any civil action or proceeding brought against a duly appointed police officer of the Nassau county police arising out of a negligent act or other tort of such police officer committed while in the proper discharge of his duties and within the scope of his employment. Such proper discharge and scope shall be determined by a majority vote of a panel ...."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_01549.htm

A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority

A contingent permanent appointment made pursuant to §64.4 of the Civil Service Law must be specifically so identified by the appointing authority

2017 NY Slip Op 04740, Appellate Division, Fourth Department

The employee [Petitioner] in this CPLR Article 78 proceeding sought a court order vacating the appointing authority's decision to reinstate her to her lower grade position, contending that she had been appointed to the higher grade position as a permanent or contingent permanent employee and thus was entitled to the procedural protections of Civil Service Law §75 as a condition precedent to her being returned to her lower grade position.

The Appellate Division ruled that Supreme Court had properly dismissed her petition as the record indicated that Petitioner had been given a "temporary appointment ... [to fill] a position that was encumbered by an employee on leave of absence."

Accordingly, there was nothing to support Petitioner's claim that she had been appointed to the higher grade position on a contingent permanent basis in the record.

As the Court of Appeals indicated in Snyder v Civil Service Commission, 72 NY2d 981, an employee, even if otherwise eligible for appointment as a contingent permanent employee pursuant to §64.4 of the Civil Service Law, must be specifically designated as being appointed as a contingent permanent employee by the appointing authority, which status is granted solely at the discretion of the appointing authority.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_04740.htm

Unlawful discrimination complaint sustained notwithstanding respondent's failing to appear at the administrative hearing conducted by the NYS Division of Human Rights

Unlawful discrimination complaint sustained notwithstanding respondent's failing to appear at the administrative hearing conducted by the NYS Division of Human Rights

New York State Div. of Human Rights v Milan Maintenance, Inc., 2017 NY Slip Op 05508, Appellate Division, First Department

The Appellate Division unanimously sustained the New York State Division of Human Rights' (DHR) determination holding that  Milan Maintenance, Inc., [Milan] had unlawfully discriminated against an individual that it rejected for employment and DHR's awarding the complainant $10,000 for mental anguish and humiliation.

Noting that Milan defaulted at the administrative hearing held by DHR,* thus failing to rebut a prima facie showing that it had unlawfully discriminated against the complainant, the court said that DHR's findings were supported by substantial evidence and DHR's "award of compensatory damages for mental anguish" was proper.

Mari v Safir, 291 AD2d 298, sets out the tests typically applied by New York courts in resolving litigation challenging the decision of an administrative agency arrived at as the result of having conducted an administrative hearing in absentia. 

* In Hall v Environmental Conservation, 235 AD2d 757, the Appellate Division upheld an arbitrator's award in favor of the employee after Environmental Conservation boycotted the arbitration because if believed that the employee was not entitled to arbitrate the dispute.

The Milan decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05508.htm

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing

Hearsay may constitute "substantial evidence" supporting the tribunal's findings in an administrative hearing
2017 NY Slip Op 05147, Appellate Division, Third Department

An employee [Employee] at a residential facility operated by the Office of People with Developmental Disabilities [OPWDD] was alleged to have physically abused a resident.

An investigator conducted interviews of several witnesses and found the report of physical abuse to be substantiated. After a hearing, Employee's request that report be amended to unsubstantiated and that the report be sealed was rejected and a final determination sustaining the report of physical abuse was made.

Employee then commenced a CPLR article 78 proceeding challenging the determination which was made following an administrative hearing as unsupported by substantial evidence. Supreme Court transferred the proceeding to the Appellate Division.

The Appellate Division found that the final determination was supported by substantial evidence. Addressing Employee's contention that the hearsay statements in the record cannot constitute substantial evidence, the Appellate Division said that "it is well established that, in an administrative hearing, hearsay is admissible and may support a finding of substantial evidence."

Citing Matter of Today's Lounge of Oneonta, Inc. v New York State Liq. Auth., 103 AD3d 1082, the court commented that hearsay evidence may, "under appropriate circumstances, form the sole basis of an agency's determination, unless the hearsay evidence is seriously controverted."

In this instance, said the court, the corroborated description of the incident by the eyewitness was only controverted by Employee's denial.  Consequently, the corroborated description by the eyewitness could be viewed as not seriously controverted and "sufficiently reliable" so as to constitute substantial evidence.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2017/2017_05147.htm