Summarily removing public officers and employees from their positions

Summarily removing public officers and employees from their positions

PHH Corporation v Consumer Financial Protection Bureau, USCA, District of Columbia Circuit, Docket #15-1177

Except in instances where the appointment and removal process of a public officer or employee is set by federal or state law, it is "black letter law" that the power of appointment implies the power of removal.[1]In such cases the individual is characterized as serving at the pleasure of the appointing authority and thus may be summarily terminated from his or her position, provided, however, such termination is not based on factors that would otherwise constitute unlawful discrimination on the part of the appointing authority or otherwise constitute a violation of the Constitution of the United States or a state's constitution or a federal or state law, rule or regulation. Indeed, some instances an officer or employee "serving at will" may be terminated because of his or her political affiliation.[2]

In the event a public officer or employee is appointed for a fixed term of office, may such an individual be summarily removed from his or her position by the appointing authority? Typically, such an officer or employee may only be removed for cause, after notice and hearing.[3]

In PHH Corp. v Consumer Financial Protection Bureau, the US Circuit Court, District of Columbia Circuit, concluded that a federal administrator appointed for a fixed term of office may only be removed for cause after notice and hearing. The Circuit Court ruled that the structure of the Consumer Financial Protection Bureau [CFPB] is constitutional and that its director[4]can be terminated by the President only for cause.

In a split-decision, the majority of the court held, in pertinent part, that:

1. "Congress established the independent CFPB to curb fraud and promote transparency in consumer loans, home mortgages, personal credit cards, and retail banking."[5] 

2. "The Supreme Court eighty years ago[6] sustained the constitutionality of the independent Federal Trade Commission, a consumer -protection financial regulator with powers analogous to those of the CFPB."

3. "In doing so, the Supreme Court approved the very means of independence Congress used here: protection of agency leadership from at-will removal by the President. The Court has since reaffirmed and built on that precedent, and Congress has embraced and relied on it in designing independent agencies . We follow that precedent here to hold that the parallel provision of the Dodd-Frank Wall Street Reform and Consumer Protection Act shielding the Director of the CFPB from removal without cause is consistent with Article II."

In the words of the Circuit Court of Appeals:

"Applying binding Supreme Court precedent, we see no constitutional defect in the statute preventing the President from firing the CFPB Director without cause. We thus uphold Congress’s choice."   

As NYPPL noted that with respect to summarily terminating the Director of the Federal Bureau of Investigation, federal law provides that:

"(b) Effective with respect to any individual appointment by the Effective date ... after June 1,1973, the term of service of the Director of the Federal Bureau of Investigation shall be ten years [emphasis supplied]. A Director may not serve more than one ten-year term. The provisions of subsections (a) through (c) of section 8335 of title 5, United States Code, shall apply to any individual appointed under this section.". 

Removal of a public officer having a fixed term of office is not unknown in New York State. For example, §36 of the State's Public Officer Law provided for the removal of town, village, improvement district or fire district officer by court whereby:

"Any town, village, improvement district or fire district officer, except a justice of the peace, may be removed from office by the supreme court for any misconduct, maladministration, malfeasance or malversation in office. An application for such removal may be made by any citizen resident of such town, village, improvement district or fire district or by the district attorney of the county in which such town, village or district is located, and shall be made to the appellate division of the supreme court held within the judicial department embracing such town, village, improvement district or fire district. Such application shall be made upon notice to such officer of not less than eight days, and a copy of the charges upon which the application will be made must be served with such notice."

Another example: §5.2 of the New York Civil Service Law provides that the New York State Civil Service Commission consists of three Commissioners appointed by the Governor, by and with the advice and consent of the State Senate, "not more than two of whom shall be adherents of the same political party."

The Governor designates one of the members of the Commission to be President of the Commission and "such member shall serve in the capacity of President during the pleasure of the governor." Although the President of the Commission serves in that capacity at the pleasure of the Governor, in the event he or she is removed from the position of President, he or she would revert to his or her position as a member of the Commission for the remainder of his or her six-year term of office.

In all probability the US Supreme Court will be asked to consider the Circuit Court's decision in PHH Corporation v Consumer Financial Protection Bureau.

The decision is posted on the Internet at:

https://www.cadc.uscourts.gov/internet/opinions.nsf/B7623651686D60D585258226005405AC/$file/15-1177.pdf

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[1] Bruso v County of Clinton, 139 AD3d 1166; City Council of Mount Vernon v Batra, 82 AD3d 1224.

[2]Branti v Finkel, 445 US 507

[3]In some situations it may be possible to discontinue the services of an incumbent in the event he or she becomes mentally or physically unable to satisfactorily perform the duties of the position.

[4]The Director of the CFPB is appointed for a five year term of office

[5]See 12 U.S.C. §5481(12).

[6]Humphrey’s Executor v United States , 295 U.S. 602.

Law enforcement and corrections resources

Law enforcement and corrections resources

Source: AELE

1. New AELE Monthly Law Journal article

Constitutionality of Postcard-Only Policy for Incoming Prisoner Mail.
View at http://www.aele.org/law/2018all02/2018-02MLJ301.pdf

2. Seminars:

AELE's next seminar is on Use of Force in Las Vegas on April 30-May 3, 2018. For more information and to register click here: http://www.aele.org/menu-lethal.html

Use of Force by law enforcement and correctional personnel is in the news every day.  This comprehensive 4-day program covers all major aspects of use of force.  It includes the use of lethal and non-lethal force, investigation and adjudication of use of force incidents, and complaints of excessive force.  It also includes psychological and bio-mechanical aspects of the use of force. Attendance at this program satisfies one of the requirements for the AELE Certified Litigation Specialist (CLS) Designation.  Information on the CLS designation may also be found on the AELE web site at http://www.aele.org/cls-info.html

Discipline and Internal Investigations. Las Vegas on Oct. 29-Nov. 1, 2018.

For more information and to register click here:   http://www.aele.org/menu-disc.html

3. February 2018 issues of AELE's three periodicals have been uploaded.

The current issues, back issues since 2000, and case digests since 1975 are FREE. Everyone is welcome to read, print or download AELE publications without charge. The main menu is at: http://www.aele.org/law

4. Law Enforcement Liability Reporter

This issue has cases on dogs, false arrest/imprisonment: warrant, firearms related: intentional use, firearms related: Second Amendment issues, First Amendment, gang activity, and privacy.

View at http://www.aele.org/law/2018all02/LR2018FEB.html

5. Fire, Police & Corrections Personnel Reporter

This issue has cases on arbitration procedures, handicap/abilities discrimination: regarded as disabled, political discrimination, retaliatory personnel actions, retirement rights and benefits, union activity, veterans and other preferences laws, and workers' compensation.

View at http://www.aele.org/law/2018all02/FP2018FEB.html

6.  Jail and Prisoner Law Bulletin

This issue has cases on access to courts/legal info, Federal Tort Claims Act, mail, Prison Litigation Reform Act: exhaustion of remedies, prisoner assault: by inmate, prisoner transport, religion, sex offenders, and visitation.
View at http://www.aele.org/law/2018all02/JB2018FEB.html

7. Selected criminal law and procedure cases are at three other free websites.

https://www.fletc.gov/the-informer
http://www.kenwallentine.com/Xiphos.html
http://le.alcoda.org/publications/point_of_view/

Determining the employee status of an individual for the purposes of maintaining a Title VII civil rights action

Determining the employee status of an individual for the purposes of maintaining a Title VII civil rights action

Knight v State University of New York at Stony Brook, USCA, 2nd Circuit, Docket No. 17-54-cv

Anthony Knight, an African-American electrician, sued State University of New York at Stony Brook, alleging that Defendant violated Title VII of the Civil Rights Act of 1964 when it terminated his employment after he reported racist graffiti in a bathroom located at his worksite.

At the trial Stony Brook contended that Knight was not an employee for purposes of Title VII as was an electrician and a member of the International Brotherhood of Electrical Workers, Local 25. Local 25 had an arrangement with Stony Brook under which it referred union electricians to Stony Brook when additional workers were needed to supplement its workforce during large construction projects.

When Knight moved for judgment as a matter of law that he was Stony Brook's employee the United States District Court judge denied Knight’s motion and submitted the issue to the jury. The jury found that Knight was not an employee and thus Stony Brook was not the employer for the purposes of Title II.

On appeal, the Circuit Court of Appeals affirmed the District Court's judgment, holding that Knight was not an employee of Stony Brook.

In response to Knight's argument that the court rather than the jury should have decided his employment status, the Circuit Court explained that whether a jury may determine a plaintiff’s status as an employee presents a question of law, citing Kirsch v. Fleet Street, Ltd., 148 F.3d 149. 

In Kirsch the Circuit Court had rejected the argument that submitting the question to a jury is prejudicial error, the same contention Knight advanced in this action, noting that whether an individual is an employee is “regularly presented to juries that are instructed to return general verdicts, informed by the court’s instructions on the law and given the direction that if they find that the plaintiffs in question were employees . . . they should simply state that they find in favor of the plaintiffs.”*  

The question as to whether an individual is an employee of a defendant in a Title VII action was considered in Community for Creative Non-Violencev. Reid, 490 U.S. 730. Borrowing from the common law of agency, the Supreme Court established a "non-exhaustive list of thirteen factors which guide the determination of employee status," the so-called Reid factors,  set out below:

1. The hiring party’s right to control the manner and means by which the product is accomplished;

2. The skill required;

3. the source of the instrumentalities and tools;

4. the location of the work;

5. The duration of the relationship between the parties;

6. Whether the hiring party has the right to assign additional projects to the hired party;

7. The extent of the hired party’s discretion over when and how long to work;

8. The method of payment;

9. The hired party’s role in hiring and paying assistants;

10. Whether the work is part of the regular business of the hiring party;

11. Whether the hiring party is in business;

12. The provision of employee benefits; and

13. The tax treatment of the hired party.

Although Knight had shown that Stony Brook provided some of his tools, it was also shown that the electricians were required to supply their own basic tools. When Knight argued that he was an employee because Stony Brook provided him with benefits, Stony Brook produced evidence that the benefits were in fact paid to the union, which was charged with dispersing the benefits to individual members.

Although Knight presented uncontradicted evidence that he was paid by checks issued by the New York State Comptroller and was treated as an employee for tax purposes, Stony Brook, in turn, presented undisputed evidence that the construction work for which Knight was hired was not its usual business and that the duration of his employment was brief.

The District Court instructed the jury to consider and balance the Reid factors in determining Knight’s employment status. The jury returned a verdict finding that Knight was not an employee of Stony Brook. Finding no error requiring the reversal of the jury’s finding that Knight was not an employee of Stony Brook, the Circuit Court affirmed the judgment of the District Court.

* The Circuit Court also noted that in Baker v. Tex. & Pac. Ry.Co., 359 U.S. 227, "the Supreme Court has held that a jury may decide the employer/employee issue in Federal Employers’ Liability Act cases."

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/52db75a2-2f70-4d17-94d2-3dcd7b690f79/1/doc/17-54_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/52db75a2-2f70-4d17-94d2-3dcd7b690f79/1/hilite/

Vacating an arbitrator's award concerning a matter submitted to compulsory arbitration

Vacating an arbitrator's award concerning a matter submitted to compulsory arbitration

Dikovskiy v New York City Bd. of Educ., 2018 NY Slip Op 00231, Appellate Division, First Department

Gennadiy Dikovskiy filed petition pursuant to CPLR Article 75 seeking a court order vacating an arbitration award. Supreme Court granted Dikovskiy's petition and denied the New York City Board of Education's motion to dismiss her Article 75 action.

The Appellate Division affirmed the lower court's ruling vacating the penalty imposed.

Citing Matter of Asch v New York City Bd./Dept. of Educ., 104 AD3d 415, the Appellate Division explained that "Where, as here, the parties have submitted to compulsory arbitration, the hearing officer's determination must be in accord with due process, supported by adequate evidence, and rational, and must not be arbitrary and capricious."

Finding that Supreme Court "properly concluded that the hearing officer's determination was arbitrary and capricious, and not supported by the record," the Appellate Division noted that:

1. There was no evidence that Dikovskiy's conduct toward a student violated any rule or regulation or was otherwise inappropriate;

2. The Board of Education's various training materials encouraged teachers to interact with students outside the classroom to foster student development;

3. The alleged "inappropriate" conduct with which Dikovskiy was charged "was not sufficiently defined so as to put Dikovskiy on notice as to what constituted misconduct; and

4. The Appellate Division's review of the video in evidence did not demonstrate that Dikovskiy had "engaged in any inappropriate behavior with a student."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00231.htm

Collecting attorney fees from the losing party

Collecting attorney fees from the losing party

Dechbery v Cassano, 2018 NY Slip Op 00228, Appellate Division, First Department

The Appellate Division held that Supreme Court properly exercised its discretion in denying Eileen Dechbery attorneys' fees in this proceeding seeking to vindicate her rights pursuant to Civil Service Law §71.*

 

Citing Matter of A.G. Ship Maintenance Corp. v Lezak, 69 NY2d 1, the court said that the general rule is that in Article 78 proceedings, "the prevailing party may not collect [attorneys' fees] from the loser unless an award is authorized by agreement between the parties or by statute or by court rule." However, observed the court, a petitioner in an Article 78 proceeding may be entitled to attorneys' fees under 42 USC §1988 where she asserts a substantial federal constitutional claim.

In this instance the Appellate Division said that Dechbery was not entitled to an award of attorney's fees as she has not successfully asserted a substantial federal constitutional claim in the proceeding. Although she alleges that her due process rights were violated, the mere fact that respondents mailed her notice of termination letter to her prior address does not constitute a violation of her due process rights as she was provided with post-termination due process.

Further, the court observed that Dechbery had failed to establish her entitlement to an award of attorneys' fees under the New York State Equal Access to Justice Act (CPLR Article 86).

* Civil Service Law §71 provides for leaves of absence in the event an employee’s injury or disease is “work connected” and is typically referred to as “workers’ compensation leave. The appointing authority may, as an exercise of discretion, terminate an employee absent on §71 Worker’s Compensation Leave after he or she has been absent on such leave due to the same injury or disease for an accumulative period of one year or longer.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_00228.htm