An employee alleged not to possess a minimum qualification of his or her position is entitled to notice of the allegation and the opportunity to contest it

An employee alleged not to possess a minimum qualification of his or her position is entitled to notice of the allegation and the opportunity to contest it

Jakubowicz v Village of Fredonia, 2018 NY Slip Op 02059, Appellate Division, Fourth Department

Supreme Court, Chautauqua County directed that Jakubowicz, an employee of the Village of Fredonia,  be "fully reinstated to his former employment with full back pay and benefits retroactive to the date of his termination." The Village appealed.*

The Appellate Division first addressed "Appeal No. 2" in which the Village contended that a commercial driver's license is a minimum qualification for Jakubowicz's position as a Mechanic II in the Village and that "his failure to maintain such minimum qualification required the termination of his employment."

The court rejected the Village's claim, noting that the Mechanic II position in the Village required  possession, "at time of appointment and during service in this classification, of a valid NYS Motor Vehicle Operator's license appropriate for the type of vehicles which the employee may from time to time operate."

Explaining that due process and fundamental fairness require that a qualification or requirement for employment must be expressly stated in order for an employer to bypass the protections afforded by the Civil Service Law or a collective bargaining agreement and summarily terminate an employee, the Appellate Division said that in this instance the  requirement of a commercial driver's license is not "expressly stated."

In addition, said the court, quoting Matter of Carr v New York State Dept. of Transp., 70 AD3d 1110, while "an employee charged with failing to possess a minimum qualification of his or her position is only entitled to notice of the charge and the opportunity to contest it", the Village in this instance offered Jakubowicz a hearing "to afford [him] the opportunity to present information to the Village why [he] should not be administratively terminated from employment." However, there is no dispute that a hearing was never held.

Accordingly, the Appellate Division concluded that Supreme Court was correct in determining that Jakubowicz's termination was arbitrary and capricious.

* The Village submitted two appeals, denominated Appeal 1 and Appeal 2, but dismissed Appeal 1 as academic in view of its ruling with respect to Appeal 2.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02059.htm

Unauthorized recording of a court proceeding

Unauthorized recording of a court proceeding

Matter of Attorney Grievance Committee M-3080, 2018 NY Slip Op 07278, Appellate Division, First Department

Attorney Grievance Committee M-3080 for the First Judicial Department instituted disciplinary against an attorney alleging the attorney had made an unauthorized recording of a court proceeding in violation of New York Rules of Professional Conduct, 22 NYCRR 1200.0 rule 8.4(d), Conduct Prejudicial to the Administration of Justice.

The Committee found the attorney guilty of professional misconduct and a Referee was appointed to conduct a sanction hearing. Ultimately the parties stipulated that the attorney had engaged in a pattern of misconduct that was prejudicial to the administration of justice.

Noting  that [1] the attorney had no disciplinary history nor had ever been sanctioned by any court for misconduct; [2] the misconduct arose in the course of a contentious domestic relations action in which the attorney appeared pro se; [3] the attorney at the time of the incident had limited experience in the practice of law; and [4] the attorney had acknowledged  the wrongfulness of making an unauthorized recording in light of Rule 8.4(d), the Appellate Division found that " public censure" was an appropriate penalty and granted the parties' motion for "discipline by consent."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07278.htm

Pension plan managers vested with exclusive authority to determine a member's retirement benefits precludes judicial review of its calculation of Plan benefits

Pension plan managers vested with exclusive authority to determine a member's retirement benefits precludes judicial review of its calculation of Plan benefits

Hughey v Metropolitan Transp. Auth., 2018 NY Slip Op 02129, Appellate Division, First Department

Plaintiff in this action retired from his position with the Long Island Rail Road, an MTA subsidiary, at age 63.49. Plaintiff, as a commuter rail employee, was also eligible to  receive Tier II pension benefits after the requisite years of service under the Railroad Retirement Act. In addition, MTA employees receive pension benefits from the MTA Pension Plan.

Article 3.07(a)(ii) of the MTA Pension Plan, provide for an "offset" that reduced the amount of benefits payable under the Plan by the benefits "which would be payable to the Member involved at age 62 under Tier II. "Plaintiff, however, was still in service at age 62 and did not retired from MTA at age 63.49. Accordingly, the amount of the offset was determined by the MTA's Board of Managers on the basis of Plaintiff's actual age at the effective date of his retirement, 63.49 years of age.

Plaintiff sought a review of the Board's determination basing his pension benefits on his actual age at retirement, 63.49 years rather than determining his pension benefits to be that which would have been payable had he actually retired at age 62, a difference of $160.83 per month.

The Board denied Plaintiff's appeal, which determination was affirmed by the Appellate Division. 

The court explained that "Article 6.02 of the Plan conferred on its Board of Managers" sole and absolute discretionary authority to interpret the Plan and decide any dispute and all matters arising in connection with the operation or administration of the Plan, as well as to decide questions, including legal and factual questions, relating to the calculation and payment of benefits under the Plan.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_02129.htm

Rejection of employee's application for reinstatement after admitting to conduct reflecting discredit on the department not arbitrary or capricious

Rejection of employee's application for reinstatement after admitting to conduct reflecting discredit on the department not arbitrary or capricious

Hayes v Nigro, 2018 NY Slip Op 07124, Appellate Division, Second Department

New York City Firefighter Sean Hayes charged with violating New York City Fire Department [FDNY] rules and regulations barring the use of prohibited substances.

In lieu of going forward with a disciplinary proceeding, Hayes settled the matter by entering into a stipulation with the FDNY that [1] allowed him to vest his pension in lieu of facing the penalty of termination and [2] set out his admission to conduct reflecting discredit upon the FDNY arising out of his testing positive for methadone during a random drug test while he was working and violations of the oath of office.

Some three years later Hayes applied for reinstatement to his former position with FDNY. His application was rejected by the Commissioner in consideration of his disciplinary record and the untimeliness of the request. Hayes then initiated an Article 78 proceeding seeking a court order annulling the Commissioner's determination and directing his reinstatement to his former position of firefighter.*

The Supreme Court denied the Article 78 petition and Hayes appealed the court's decision.

Sustaining the Supreme Court's decision, the Appellate Division explained that:

1. A request to the Commissioner for the reinstatement of a firefighter must be made within one year from the date of his or her separation from the FDNY and Hayes' request some three years after his resignation was untimely;

2. Reinstatement is not a right and the decision to reinstate a former employee is within the sole discretion of the Commissioner, and who is not required to state a reason for denying the reinstatement; and

3. The Commissioner's determination rejecting the request will be sustained  unless it is shown to be arbitrary or capricious or an abuse of discretion.

In this instance, said the court, Hayes did not seek to be reinstated as a FDNY firefighter until almost three years after he had left the FDNY after admittedly illegal and potentially dangerous conduct. Thus, said the Appellate Division,  agreeing with Supreme Court, "the determination of the Commissioner was not arbitrary, capricious, or an abuse of discretion."

Addressing Hayes' efforts with respect to "discovery," the Appellate Division said that such discovery was "not relevant to the Commissioner's individualized and discretionary assessment of [Hayes'] application" for reinstatement.

* Hayes also sought discovery of the FDNY's records of all applicants for reinstatement for the period from January 2014 to the date of the commencement of his Article 78 proceeding. 

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07124.htm

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AELE Monthly Law Journal

Public Safety Employee Right to "Name-Clearing" Hearings

View at http://www.aele.org/law/2018all11/2018-11MLJ201.pdf

Fire, Police & Corrections Personnel Reporter

This issue has cases on age discrimination, arbitration procedures, collective bargaining, Fair Labor Standards Act: overtime in general, handicap/abilities discrimination: in general, handicap/abilities discrimination: “regarded as” disabled, retaliatory personnel actions, and union activity. View at: http://www.aele.org/law/2018all11/FP2018NOV.html