Positive drug test results rebutted as "false positive" by employee's expert witness

Positive drug test results rebutted as "false positive" by employee's expert witness

Office of Administrative Trials and Hearings, OATH Index No. 1717/18

A New York City correction officer who tested positive for morphine and codeine denied that he had used illegal drugs and claimed that the test result was a "false positive."

OATH Administrative Law Judge John B. Spooner found the officer's witness had rebutted the employer's allegation that the employee had tested positive as the result of having ingested unlawful drugs and he recommended dismissal of the charge. 

The ALJ credited the officer’s testimony that he had eaten bagels that contained poppy seed prior to the drug test. 

Judge Spooner found the qualifications of the officer’s expert, a toxicologist, were superior to those of petitioner’s expert, the lab manager. The toxicologist had testified that the relatively low levels of the drugs found in the officer’s urine could only be explained by eating poppy seed bagels because the quantities were at non-therapeutic doses and the relative proportions were inconsistent with heroin or morphine or codeine ingestion.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-1717.pdf

SUNY student entititle to administrative due process in a disciplinary hearing involving allegations of violations of the student code of conduct

SUNY students entitled to administrative due process in a disciplinary hearing involving allegations of violations of a student code of conduct

Matter of Agudio v State Univ. of N.Y., 2018 NY Slip Op 05647, Appellate Division, Third Department

In this appeal to review a determination of the State University of New York at Albany [SUNY] that, following a Student Conduct Board [SCB] hearing, found the student petitioner [Petitioner] guilty of violating SUNY Albany's student code of conduct and expelled the student, the Appellate Division sustained the disciplinary action taken SUNY and the penalty imposed on the Petitioner.

The SCB found that Petitioner had found Petitioner guilty of three of the charges filed against her and imposed the sanction of dismissal from SUNY Albany. Petitioner appealed the SCB determination to an Appeal Board. Ultimately the SCB's determination and penalty was sustained by SUNY Albany's assistant vice-president for student affairs, based on a written recommendation from the Appeal Board.

The court  noted that a "college's determination that a student violated its code of conduct will be upheld if supported by substantial evidence in the record." Further, the decision notes that administrative determinations may be based entirely on hearsay evidence as long as "such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted." Here, said the Appellate Division, "the record contains direct evidence against [Petitioner], as well as hearsay."

Although the disciplinary action before the SCB was held "in absentia" as the result of Petitioners failure to appear at the hearing,* the court ruled that Petitioner's due process rights were not violated by SUNY Albany's student disciplinary procedures as Petitioner was given written notice of the charges prior to a hearing, the names of the witnesses against her, an opportunity to hear and confront evidence against her and to present a defense and to be advised in writing of the factual findings and discipline imposed.

Additionally, citing Matter of Miller v Schwartz, 72 NY2d 869 and other decision, the Appellate Division noted that "there is no general constitutional right to discovery in . . . administrative proceedings."

Finally, under the circumstances of this case, the Appellate Division concluded that the penalty of dismissal from SUNY Albany imposed on Petitioner was not disproportionate to the offense, citing Lampert v State Univ. of N.Y. at Albany, 116 AD3d 1292, leave to appeal denied, 23 NY3d 908.

*The decision notes that Petitioner [1] had an attorney who communicated with SUNY Albany's Community Standards Office prior to the hearing raising certain complaints regarding the procedure and stated that Petitioner would not attend if those complaints were not remedied and [2] that Petitioner could have attended the hearing with her attorney, who could have advised her, but she did not do so.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05647.htm

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement

Implementing an arbitrator's decision after the appointing authority failed to timely comply with the provisions set out in a collective bargaining agreement

Appeal of Nadav Zeimer, Decisions of the Commissioner of Education, Decision No. 17468

The relevant provision of the collective bargaining agreement [COB] required the Chancellor of the New York City Department of Education [Chancellor] issue a written decision within 15 days of the employee's request that the Chancellor review the arbitrator's decision.

When the Chancellor failed to comply with this provision of the COB, Nadav Zeimer [Petitioner] requested that the Commissioner of Education [Commissioner] to “disregard the Chancellor's [d]ecision and consider [Petitioner’s appeal letter] a direct appeal of the Arbitration Decision.”

The Commissioner noted that the Chancellor had issued a determination addressing Petitioner’s December 5, 2017 appeal well after the 15 days required by both the CBA and an earlier order of the Commissioner set out in Appeal of Zeimer, 57 Ed Dept Rep, Decision No. 17,357.*  This, noted the Commissioner, is not the first time that the Chancellor has missed this deadline, citing Appeal of Chou, 55 Ed Dept Rep, Decision No. 16,848.**

In the words of the Commissioner, "The Chancellor’s unexplained delay is particularly egregious because the record shows that NYCDOE filed a proceeding under Article 75 of the Civil Practice Law and Rules (“CPLR”) contesting the arbitrator’s reinstatement of petitioner, and that this proceeding was fully submitted on April 27, 2018, six days prior to the Chancellor’s determination at issue herein, which was required to be timely rendered by the Agreement and by my March 26, 2018 decision and order in Appeal of Zeimer (57 Ed Dept Rep, Decision No. 17,357)."

After admonishing the Chancellor "to review the provisions of the Agreement and its legal obligation to ensure that the Chancellor renders a determination within 15 days of an arbitrator’s determination pursuant to Article VII(J)(4)(a)(6) of the Agreement," the Commissioner, nevertheless, declined to strike the Chancellor’s determination in this case. However, said the Commissioner, in view of tthe "the lack of demonstrated prejudice to [Petitioner] and in the interests of justice," she declined "to strike the Chancellor’s determination in this case." The Chancellor was then "cautioned" that future noncompliance may warrant additional corrective measures.

* The Commissioner took judicial notice that at the time Petitioner initiated Appeal of Zeimer, 57 Ed Dept Rep, Decision No. 17,357, the Chancellor was Carmen Fariña.  The instant Chancellor is Richard A. Carranza.

** Indeed, observed the Commissioner, the Chancellor cited Appeal of Chou "for the proposition that 'the Commissioner previously authorized a decision by the Chancellor despite the delay in its issuance' to support consideration of the Chancellor’s late determination" in the instant appeal. 

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume58/d17468

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)

Claiming exempt volunteer firefighter status for the purposes of Civil Service Law §75.1(b)

Serviss v Incorporated Vil. of Floral Park, 2018 NY Slip Op 05597, Appellate Division, Second Department

§75.1 of the Civil Service Laws generally bars the termination of a tenured officer or employee in the Competitive Class of Classified Service of the State or a political subdivision of the State "except for incompetency or misconduct shown after a hearing upon stated charges."

The Incorporated Village of Floral Park terminated Joseph Serviss without notice or a hearing. Serviss challenged his termination, contending that although the position from which he had been terminated was in the Labor Class of the Classified Service and employees serving in the Labor Class were generally not subject to the provisions of Civil Service Law §75.1, he was entitled to these protections provided by §75.1 because he served an "volunteer fire fighter with the Rocky Point Fire Department since September 30, 2013," citing  §75.1(b).

§75.1(b), in pertinent part, provides that "a person holding a position by permanent appointment or employment   in  the  classified  service  of  the  state  or  in the several cities,   counties, towns, or villages thereof, or in any other political or civil   division of the state or of a municipality,  or  in  the  public  school   service,  or in any public or special district, or in the service of any  authority, commission or  board,  or  in  any  other  branch  of  public  service,  who  was  honorably  discharged  or  released  under honorable  circumstances from the armed forces of the United States  having  served   therein  as such member in time of war as defined in section eighty-five   of this chapter, or who is an exempt volunteer firefighter as defined in   the general municipal law,  except  when  a  person  described  in  this paragraphholds the position of private secretary, cashier or deputy of  any official or department,...."

In response to Serviss' Article 78 petition challenging the Village's action, the Village  moved pursuant to dismiss Serviss' petition on the basis that it was deficient as a matter of law, contending that "the petitioner failed to allege in his petition that he was an 'exempt' firefighter as defined in General Municipal Law §200." Serviss then asked Supreme Court "for leave to renew his opposition to the Village's motion to dismiss the petition" and in support of that branch of his motion submitted a certificate and supporting documentation in an effort to establish that he was an "exempt" firefighter as defined in General Municipal Law §200.

Supreme Court denied that branch of Serviss' motion, holding that he failed to offer a reasonable justification for failing to submit the certificate in opposition to the Village's motion to dismiss. Serviss appealed from that order.

Addressing the merits of Serviss' appeal, the Appellate Division explained:

1. In general, a motion for leave to renew must be based upon new facts not offered on the prior motion that would change the prior determination.

2. The new or additional facts presented "either must have not been known to the party seeking renewal or may, in the Supreme Court's discretion, be based on facts known to the party seeking renewal at the time of the original motion."

3. A reasonable justification' for the failure to present such facts on the original motion must be presented."

Noting that Supreme Court "lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion" the Appellate Division explained that "A motion for leave to renew is not a second chance freely given to parties who have not exercised due diligence in making their first factual presentation." It then agreed with the Supreme Court's finding that the Serviss failed to offer a reasonable justification for his failure to present the documents relating to his status as an "exempt" firefighter in opposition to the original motion to dismiss.

However there are two procedural elements that must be met by an individual claiming exempt volunteer firefighter status for the purposes of §75.1(b) that should be noted.

1. The individual claiming exempt volunteer firefighter status has the burden of demonstrating that he or she enjoys such status [see People v Hayes, 135 AD 19]; and

2. Notice of the fact that the individual is an exempt volunteer firefighter must be given to the employer prior to the individual's effective date of termination [see Badman v Falk, 4AD2d 149]. 

Presumably the courts would apply these two procedural elements in cases involving individuals claiming §75.1(b) military service benefits. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05597.htm

Evaluating the inclusion of "longevity allowance payments" in computing an employee's final average salary for retirement benefit purposes

Evaluating the inclusion of "longevity allowance payments" in computing an employee's final average salary for retirement benefit purposes

Bohlen v DiNapoli,2018 NY Slip Op 05720, Appellate Division, Third Department

In this action Petitioners ask the court to review the Comptroller determination excluding certain compensation from the final average salary in calculating the retirement benefits of 11 long-term, executive level key employees [Petitioners] of the Port Authority of New York and New Jersey [Authority], all members of New York State and Local Employees' Retirement System [System].

After the September 11, 2001 terrorist attack on the World Trade Center that resulted in the destruction of its headquarters, the loss of virtually all of its records and the death of over 70 of its employees, the Authority elected to participate in a temporary retirement incentive program that was passed by the Legislature for employees who were members of the System but advised Petitioners, who were all eligible to retire at that time without penalty, that they would be exempted from the program. Instead, the Authority offered each of them, in addition to their regular salary, a "parity" benefit described as a longevity allowance payment that was based on a percentage of their salary to be paid biweekly, provided that they continued their employment beyond December 31, 2002.

Petitioners each signed memorandum agreements accepting the offer and the Port Authority began making longevity allowance payments to them under what it called an "Employee Retention Program."

In 2012 the System concluded that the longevity allowance payments were not includable  in determining the final average salaries of certain then retiring Petitioners because they were paid "in anticipation of eventual retirement." The System also reevaluated the retirement benefits that were being paid to other of these Petitioners who had earlier retired and came to the same conclusion.

Petitioners challenged the determinations of the Retirement System and requested a hearing. The Hearing Officer found that the System acted reasonably in excluding the longevity allowance payments in computing Petitioners' final average salaries, consistent with the provisions of Retirement and Social Security Law §431. The Comptroller accepted the Hearing Officer's findings and Petitioners initiated a CPLR Article 78 proceeding challenging the Comptroller's decision contending that the longevity allowance payments should have been included in the calculation of their final average salaries.

The Appellate Division agreed with the Petitioners, indicating that:

1. There is no dispute that the 2002 enabling legislation establishing the retirement incentive authorized participating employers to determine which titles would be eligible;

2. The Authority was authorized to determine that Petitioners — all recognized as key employees eligible to retire — would be ineligible for the program;

3. The Authority entered into a memorandum agreement with each Petitioner that provided for a "longevity allowance in consideration of [petitioners] not retiring" (emphasis by the court); and 

4. The "consideration" factor is significant for the Authority was entitled to exclude Petitioners from the retirement incentive without providing any consideration, regardless of whether Petitioners intended to retire at that time.

The memorandum agreement, noted the Appellate Division, indicated that the longevity allowance would make Petitioners' pension calculation "roughly equivalent" to what it would have been under the retirement incentive, provided that they remained employed for three years beyond December 31, 2002. Significantly, said the court, "the additional payments were made on a biweekly basis in the same way as regular salary for services as they were performed."

These payments, in the view of the Appellate Division, "are more appropriately characterized as payments genuinely made to delay [P]etitioners' retirements, not to artificially inflate their final average salary in anticipation of retirement" as they were provided for the primary purposes of [a] retaining key employees following the September 11, 2001 terrorist attack and [b] to adequately compensate Petitioners for their dedication and commitment to remain in their vital positions.

Further, observed the court, there was "neither a lump-sum payment on the eve of retirement nor a disproportionate salary increase designed to artificially inflate a pension benefit that would be properly excluded from the computation of the final average salary."

Although both the System and the Hearing Officer, whose recommendation the Comptroller adopted, characterized the payments as having been made "in anticipation of eventual retirement" (emphasis provided in the decision) the Appellate Division noted that the term "eventual" is not part of the statutory standard and use of the term eventual actually reflects the Comptroller's own recognition that there was no actual retirement date anticipated in the memorandum agreement.

Justice Lynch, in an opinion in which Justices Devine and Pritzker concurred, held that the Comptroller's determination to uphold the System's exclusion of these payments from the computation of Petitioners' pension benefits was not supported by substantial evidence and that the final average salaries of the Petitioners for the purpose of determining their retirement benefits should be recalculated.  Justice Clark wrote a dissenting opinion in which Presiding Justice McCarthy concurred.

These decisions are posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_05720.htm