Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Terminating the services of a public officer following the expiration of his or her fixed term of office serving as a "hold-over" employee

Phillips v Town of Glenville, 2018 NY Slip Op 02702, Appellate Division, Third Department

§5 of the Public Officers Law addresses situations in which an incumbent is continues to be employed in the position after expiration of his or her term office and provides, in pertinent part, that "Every officer except a  judicial officer, a notary public, a commissioner of deeds and an officer whose term is fixed by the constitution, having duly entered on the duties of his office, shall, unless the office shall terminate or be abolished, hold over and continue to discharge the duties of his office, after the expiration of the term for which he shall have been chosen, until his successor shall be chosen and qualified; but after the expiration of such term, the office shall be deemed vacant for the purpose of choosing his successor." §5 further provides that "An officer so holding over for one or more entire terms, shall, for the purpose of choosing his successor, be regarded as having been newly chosen for such terms."*

In Phillips v Town of Glenville the Appellate Division addressed the a number of issues resulting from a "holdover" employment situation.

George J. Phillips was appointed to the office of Comptroller for Town of Glenville in 2001 and was subsequently reappointed to the position biennially, the last such appointment being for the period January 1, 2008 thru and including December 31, 2009. In January 2010 the Town Board notified Phillips that he would not be reappointed to the office of Comptroller, but that he could continue on as Acting Comptroller pending the appointment of his successor. In December 2012 in the course of a Town Board meeting the Town Board authorized the Town Supervisor terminate Phillips employment, effective December 31, 2012.

The Town Supervisor met with Phillips on December 28, 2012 and advised him that his employment was being terminated as of December 31, 2012 and later that same day Phillips was given a from the Town confirming his termination. Notwithstanding receiving notice of his termination, Phillips submitted an email to the Town's Deputy Supervisor on December 31, 2012 indicating his intention to resign and requested payment for certain accrued sick time. On January 2, 2010 Phillips submitted a notarized letter to the Town Clerk, resigning from his office with the Town.

Ultimately Phillips initiated a lawsuit contending that [1] his termination from employment was without legal effect as it was contrary to law; [2] improper and taken in bad faith; by operation of law he continued in the office of Comptroller as a hold over pending the appointment of his successor; and in consideration of the submission of his, he is entitled to recover his accrued sick time, personal time, vacation time and salary, including longevity, through January 2, 2013.

Phillips submitted a motion for summary judgment on his petition to Supreme Court, which the court denied but did grant the Town's motion for summary judgment. Phillips appealed but the Appellate Division affirmed, explaining that with respect to the Town's cross motion for summary judgment, it was Town's burden to establish a prima facie entitlement to judgment as a matter of law by tendering sufficient evidence demonstrating the absence of any material issue of fact.

The Town did so, said the court, by submitting affidavits by the Town Clerk and the Town's Deputy Supervisor.

These affidavits, among other things, recited Phillips' employment history with the Town, indicated that, upon expiration of Phillips' 2008 appointment he was not reappointed as Comptroller and, instead, accepted the position of Acting Comptroller, a position with no fixed term or tenure that serves at the pleasure of the Town Board and the events involving the Town Board's meeting which specifically included an item calling for the Town Board to meet in executive session to discuss a personnel matter.

In particular, the Deputy Supervisor's affidavit stated that "even assuming that [Phillips']  position as Acting Comptroller qualified him to receive a cash payment for unused accrued sick time pursuant to the terms of the collective bargaining agreement between the Civil Service Employees Association and the Town, inasmuch as the Town terminated [his] employment, he was ineligible to receive any such payments.

Based on the foregoing, the Appellate Division ruled that the Town had met its initial summary judgment burden, effectively shifting the burden to Phillips to raise a triable issue of fact.

Considering Phillips' argument that in accordance with Public Officers Law §5, he was entitled, as a matter of law, to continue occupying the office of Comptroller until such time as his successor was chosen and qualified, which he contended did not occur until after he had resigned from office on January 2, 2013 and thus he was entitled to payment for certain accrued benefits the Appellate Division said that it found that argument unavailing.

The court explained that Phillips conceded that he was not reappointed to the office of Comptroller after the expiration of his 2008 reappointment. Accordingly, by operation of law, he no longer held the office of Comptroller and the position was considered vacant for purposes of appointing a successor as of January 1, 2010.

As to Phillips' reliance on his employment status with the Town on and after January 1, 2010, whether as a hold over within the meaning of Public Officers Law §5 or in consideration of the fact that he accepted the Town's offer to continue as Acting Comptroller in a temporary capacity, such employment status was immaterial because, in either case, Phillips' employment status was that of an at-will employee and, as such, he served at the pleasure of the Town Board. Further, observed the Appellate Division, in the absence of any specific limitation on the Town's authority to terminate Phillips, the Town Board was within its discretion to terminate him, as an at-will employee, at its December 2012 meeting. Significantly, the court said that "as a terminated employee, [Phillips] was not eligible to receive an award of any accrued benefits."

Another argument advanced by Phillips was that Town Board's December 12, 2012 determination to terminate plaintiff's employment was rendered null and void based on a violation of the Open Meetings Law. This claim was rejected by the Appellate Division.

The court said even assuming that the Town Board's December 12, 2012 meeting was procedurally defective and violated the Open Meetings Law for failing to sufficiently particularize the subject to be considered during executive session, its actions with respect to Phillips' employment were "not void but, rather, voidable." As there was nothing in the record before the Appellate Division establishing that the Town intentionally violated the Open Meetings Law and, "given that timely notice of the subject meeting was disseminated prior thereto and the undisputed fact that plaintiff was not reappointed to the office of Comptroller and, therefore, served as an at-will employee," we find that, under the circumstances presented, Phillips "failed to demonstrate sufficient good cause to warrant exercising our discretionary authority to invalidate [the Town's] determination terminating [Phillips'] employment."

* §5 further provides that in the event a term of office is truncated by reason of a predecessor holding over, the successor appointee shall serve for "the residue of the term only."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02702.htm

Suspension of an educator without pay upon being served with disciplinary charges of misconduct constituting physical or sexual abuse of a student after June 30, 2015

Suspension of an educator without pay upon being served with disciplinary charges of misconduct constituting physical or sexual abuse of a student after June 30, 2015

New York State Education Law §3020-a

On October 6, 2018, the Albany Times Union*reported that an elementary school teacher will resign from his position when he is sentenced after pleading guilty to a misdemeanor charge of child endangerment. The educator was placed on leave with pay in April 2018 upon school officials learning that he was under investigation for allegedly "having inappropriate contact with a young girl during the 2010-11 school year.

It should be noted that §3020-a.2.c of the Education Law provides, in pertinent part, "Where charges of misconduct constituting physical or sexual abuse of a student are brought on or after July first, two thousand fifteen, the board of education may suspend the employee without pay pending an expedited hearing pursuant to subparagraph (i-a) of paragraph c of subdivision three of this section."

§3020-a.2.c  further provides that:

1. The Commissioner of Education "shall establish a process in regulations for a probable cause hearing before an impartial hearing officer within ten days to determine whether the decision to suspend an employee without pay pursuant to this paragraph  should be continued or reversed;"

2. In the event the hearing officer determines that no probable cause supports the charges, he or she shall reverse the decision of the board of education to suspend the employee without pay and reinstate such pay and [a] may also reinstate pay upon a written determination that a suspension without pay is grossly disproportionate in light of all surrounding circumstances; and [b] such an employee shall be eligible to receive reimbursement for withheld pay and accrued interest at a rate of six percent compounded annually if the hearing officer finds in his or her favor, either at the probable cause hearing or in a final determination pursuant to the expedited hearing held pursuant to subparagraph (i-a) of paragraph c of subdivision three of this section;

3. Such a suspension without pay "shall last no longer than one hundred and twenty days from the decision of the board of education to suspend the employee without pay and such suspension shall only relate to employee compensation, exclusive of other benefits and guarantees;" and

4. "Notwithstanding any other provision of law or regulation to the contrary, any provision of a collective bargaining agreement entered into by the city of New York as of April first, two thousand fifteen, that provides for suspension without pay for offenses as specified in this paragraph shall supersede the provisions hereof and shall continue in effect without modification and may be extended." 

* The article is posted on the Internet at:

https://www.timesunion.com/news/article/Guilderland-teacher-to-resign-in-December-13285113.php

Using a whistle blowing defense in a disciplinary action

Using a whistle blowing defense in a disciplinary action

Crossman-Battisti v Traficanti, 235 A.D.2d 566

Under what conditions is it appropriate to raise a claim that the employer violated §75-b, the so-called "whistleblower statute," as a defense in a §75 disciplinary action? This was one of the issues considered by the Appellate Division in the Crossman-Battisti case.

June F. Crossman-Battisti, a Court Assistant in Nassau County Family Court, was found guilty of charges of insubordination and misconduct and terminated from her position.

Charges filed against Crossman-Battisti included allegations of verbal abuse of her superiors, refusal to obey a direct order, unauthorized absences and abuse of leave, altercations with other employees and defiance of authority.

One of the claims Crossman-Battisti made in her appeal of this determination was that the disciplinary action taken against her violated §75-b of the Civil Service Law. She contended that §75 disciplinary charges were filed against her "in retaliation for her whistleblower activities."

The Appellate Division rejected this defense, commenting that a §75-b defense in a disciplinary action "applies only where the disciplinary proceeding is based solely on the employer's retaliatory action."

In contrast, said the Court, where "as here, the employer presents evidence of specific incidents of inappropriate conduct which are found to demonstrate a separate and independent basis for the [disciplinary] action taken, a defense under Civil Service Law §75-b cannot be sustained."

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It then dismissed her appeal, commenting that it found that the penalty imposed, dismissal, met the Pell standard [Pell v Board of Education, 34 NY2d 222].

Testing individuals for drugs

Testing individuals for drugs

Bassi v City of New York, 233 A.D.2d 269

Loder v City of Glendale, 14 Cal. 4th 846

The administration of drug tests to employees continues to result in court challenges. The Loder and Bassi cases consider different situations where the courts were asked to determine if drug tests administered to employees and applicants for employment met constitutional requirements.

The Bassi Decision

George Bassi, a New York City firefighter, was terminated from his position because of use of cocaine.

Bassi admitted that he had used cocaine. In addition, he had tested positive in an EMIT test, which was confirmed by GC/MS tests.

But his admitted use of cocaine did not result in his termination. Rather it was his expulsion from a compulsory drug counseling program for "non-compliance" that was the critical factor that led to his dismissal.

Bassi was expelled after he tested positive in the EMIT and GC/MS tests administered to him in August 1994 while a participant in the program.

Was this sufficient to support a determination to terminate his employment as a firefighter?

The Appellate Division said it was, holding that it passed constitutional muster because "it was sufficiently attenuated" from the results of drug tests given to Bassi in April 1994 that had been suppressed for the purposes of making the determination to dismiss him.

The Loder Decision

The California Supreme Court has decided that public employers in California cannot require candidates for promotion to pass a test for illegal drugs in order to qualify for appointment.

Such tests, however, still may be used to screen applicants for initial appointment to positions in the public service.

The City of Glendale had required both "pre-employment and pre-promotion candidates" to pass drug and alcohol tests as a condition of appointment. The policy was challenged by Lorraine Loder, who contended that the requirement unconstitutionally violated a promotion candidate's right to privacy.

To resolve the controversy the courts applied a "balancing test" that weighted the "intrusiveness of the testing against the governmental interest served by the testing,"

The California Supreme Court distinguished between pre-employment testing and pre-promotion testing. The ruling cites guidelines adopted by the U.S. Supreme Court in Treasury Employees v Van Raab, 109 S.Ct. 1384.

In Van Raab the High Court examined the U.S. Customs Service's drug-testing program, which required urine samples from employees applying for promotion to positions involving suppressing the traffic of illegal drugs, requiring them to carry firearms or to handle classified materials, to provide urine samples.

The Justices said this program was subject to the reasonableness requirement of Fourth Amendment.

In other words, the California Supreme Court said, the key to the lawfulness of such tests was whether the drug testing program was a constitutionally permissible search.

Glendale contended that its tests were reasonable and constitutional because it had a strong interest in maintaining a workplace free of the problems created by drug use, "including diminished efficiency, increased absenteeism and added health expenses."

The California Supreme Court disagreed, concluding that pre-promotion drug testing of all employees is not constitutionally reasonable where the program does not consider the nature of the employment or the position sought.

The trial court had ruled that the test was unconstitutional for 36 of the City's 80 job classifications.

Nevertheless, the California Supreme Court held that the drug testing program as applied to new job applicants is constitutionally permissible, if the test is  "administered in a reasonable fashion as part of a lawful pre-employment medical examination that is required of each job applicant."

Why did the Court make such a distinction? The Court explained that "an employer has a significantly greater need for, and interest in, conducting suspicionless drug testing of job applicants than it does in conducting similar testing of current employees."

The Court's rationale was that the employer can observe work performance to determine if a current employee is abusing alcohol or drugs, but employers do not have a similar opportunity to observe potential new hires.

Another case involving drug testing of employees is Skinner v Railway Labor Executives' Association, 109 S.Ct. 1402.

In Skinner the U.S. Supreme Court said that the privacy expectations of railroad workers were diminished by employees' working in an industry that was closely regulated to ensure safety, a goal dependent in substantial part on the health and fitness of these employees.

Placing supervisors and subordinates in the same negotiating unit

Placing supervisors and subordinates in the same negotiating unit

CSEA and Genesee County, 29 PERB 3068

Is there any prohibition to mixing supervisors and the rank-and-file employees they supervise in the same negotiating unit? No, PERB ruled in the Genesee County case, which involved a petition to place ten  head nurses and supervising nurses in separate negotiating units rather than include them in the same unit as  200 non supervisory nurses.

PERB, noting that it had declined to establish a per se supervisory exclusionary rule, said "tensions, real or imagined, stemming from supervisor-subordinate relationships are not entitled to more weight in making a unit determination than any other of the myriad sources of workplace strain which can affect employees."