Challenging the provisional appointment of a co-worker

Challenging the provisional appointment of a co-worker

Kirmayer v State Civil Service Commission, 236 A.D.2d 705*   

May an employee challenge the provisional appointment of a coworker and if so, what standards must he or she meet to pursue the action? This was the central issue in Kirmayer v New York State Civil Service Commission.

David Kirmayer, a Computer Systems Programmer with the State Office of Mental Health [OMH], asked the Civil Service Department to revoke OMH's provisionally appointing Catherine Dryden as Supervisor of Revenue Operations. Kirmayer contended that Dryden's appointment violated §65.4 of the Civil Service Law.** When the Department of Civil Service refused to revoke Dryden's appointment, Kirmayer filed an Article 78 seeking to compel the revocation of her appointment.

A New York State Supreme Court judge dismissed Kirmayer's action on the grounds that he lacked standing to commence the proceeding. On appeal, the Appellate Division affirmed the Supreme Court's ruling.

The Appellate Division said that in order to challenge an administrative determination, Kirmayer had to show:

a. interest protected by statutory or constitutional provisions;

b. The administrative determination being challenged had a harmful effect on him; and

c. There was no clear legislative intent barring judicial review of the matter.

Kirmayer contended the appointment did hurt him, even though he made no claim that he was qualified for Dryden's position. Instead he contended that had an individual in his "promotional unit" been appointed as the provisional Supervisor of Revenue Operations, he could have applied for the vacancy created by the appointment.

The Appellate Division said that Kirmayer "so-called injury ... stemming from his purported inability to apply for an unspecified position that might have become vacant through the promotion of some unknown individual" constituted pure speculation.

In other words, the Court decided that Kirmayer "simply has not demonstrated the special type of damage necessary to confer standing for the purpose of pursuing the litigation."

* See, also, Kirmayer v State Civil Service Commission, 42 AD3d 848

** §65.4 generally bars "successive provisional appointments" to the same position. Presumably the approval of Dryden's provisional appointment by Civil Service was authorized under one or more of the exceptions allowed by §65.4.

Teacher sues to recover damages for alleged defamatory statement contained in an e-mail

Teacher sues to recover damages for alleged defamatory statement contained in an e-mail

2018 NY Slip Op 07701, Appellate Division, Second Department

The tort of defamation may refer to an alleged false statement, communicated orally [slander] or in a writing [libel], that injures an individual's "reputation" or his or her "good name" in the community.

The Plaintiff in this action contended that the Defendant sent an email to the Plaintiff''s adult children in which Defendant alleged Plaintiff, a teacher, had engaged in an act of "professional misconduct" and "communicated the [D]efendant's opinion of the character of the [P]laintiff" to the children.

Supreme Court granted Defendant's motion to dismiss the action and Plaintiff appealed. The Appellate Division sustained the lower court's action.

The court, citing Mann v Abel, 10 NY3d 271, explained that a defamatory statement constituting "pure opinion" is not actionable under New York State Law because expressions of opinion, in contrast to assertions of fact, are deemed privileged and, no matter how offensive, cannot be the subject of an action for defamation.

Here, however, the Appellate Division observed that although the subject email communicated the Defendant's opinion of the character of the Plaintiff, the email also set forth disputed allegations of fact that had a precise meaning which were readily understood and which were capable of being proven true or false, and in context, the email could be reasonably understood to proffer assertions of fact. Thus, said the court, the subject email communication contained potentially actionable statements of fact.

In a defamation action the plaintiff must allege that he or she suffered special damages - the loss of something having economic or pecuniary value unless the statement is defamatory per se. Plaintiff in this action, however, did not allege special damages nor did the subject email did not "charge the [P]laintiff with any serious crime" or having any "loathsome disease."

Noting that "one statement in the email referred to alleged professional misconduct by the [P]laintiff," a teacher, the Appellate Division concluded that "under these circumstances that allegation of a single instance of professional misconduct is not actionable" and the email did not contain any other statements that could be deemed defamatory per se.

With respect to statements deemed "defamatory per se", in Geraci v Probst, 15 NY3d 336, the Court of Appeals sustained a trial court's instruction to the jury that Probst's statement was defamatory per se because it alleged that Geraci had committed a crime, in this instance "a violation of the General Municipal Law related to the exercise of [Geraci's] public office" and that the statement was false.

In Golub v Enquirer/Star Group, 89 NY2d 1074, the court opined that "Generally, a written statement may be defamatory 'if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number of the community'", quoting Mencher v Chesley, 297 NY 94. Damages will likewise be presumed for statements that charge a person with committing a serious crime or that would tend to cause injury to a person's profession or business. 

In this action, however, Appellate Division, for the reasons indicated above, sustained the Supreme Court's determination to grant Defendant's motion to dismiss Plaintiff's cause of action alleging defamation.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2018/2018_07701.htm

Benefits upon retroactive promotion following resolution of a pending disciplinary action may differ depending on circumstances

Benefits upon retroactive promotion following resolution of a pending disciplinary action may differ depending on circumstances

Aiello v Bratton, 236 A.D.2d 319

May two individuals be promoted following the resolution of disciplinary action, one with "back salary and seniority" and the other denied "back salary and seniority?" As the Aiello decision indicates, this could be lawful under certain conditions.

Richard J. Aiello and another police officer serving with the New York City Police Department were promoted to lieutenant and detective respectively following the resolution of disciplinary charges that had been filed against them. Their respective appointments had been held up while these disciplinary actions were pending.

The detective was appointed retroactively, with back salary and "retroactive seniority." Aiello, on the other hand, was neither given back salary nor "retroactive seniority" when he was promoted.

Aiello sued, contending that the Department had violated his right to "equal protection" by not making his promotion retroactive and awarding him back salary and seniority as well. The Appellate Division rejected Aiello's arguments and dismissed the appeal.

The Court decided that situation underlying Aiello's  promotion to lieutenant and the other officer's promotion to detective were not exactly the same.   

It seems that Aiello's promotion was made from an eligible list for lieutenant and subject to the "rule of one of three" [§61.1, Civil Service Law]. Accordingly, his appointment was subject to the discretionary authority of the Commissioner of Police. As Aiello did not have a vested right to the promotion, he could not claim that he had any right to back salary or seniority upon his promotion from the eligible list.

The appointment of the police officer to detective, however, was quite different. The Court ruled that officer had "a vested right to his promotion to detective under NYPD Directive #27."

Why was this so? It appears that the officer had performed investigatory duties for more than 26 months and thus became entitled to permanent status in the position in accordance with the provisions of Directive #27. When he was reinstated following the resolution of the disciplinary action, his promotion, which had been "placed on hold," had to be made retroactive and thus he was entitled to back pay and seniority as detective.

The automatic permanent appointment of a police officer to the position of detective by NYPD after the officer performed detective or investigatory service for the minimum period prescribed by Directive #27 was upheld by the Court of Appeals in Scotto v Dinkins, 85 NY2d 209. In contrast, the high Court held unconstitutional a statute, §58.4(c) of the Civil Service Law, mandating automatic promotion to detective in other jurisdictions [see Wood v Irvine, 85 NY2d 238, decided the same day].

Finding that the two individuals were not "similarly situated" insofar as the procedures dealing with their advancement in title and grade were concerned, the Court ruled that Aiello had not been denied equal protection and dismissed the appeal.

Restoration of leave credits used during an involuntary §72.1 leave

Restoration of leave credits used during an involuntary §72.1 leave

Vickery v Sinnott, 238 AD2d 818

§72.1 authorizes an appointing authority to place an employee on leave if a medical officer selected by civil service department or appropriate commission certifies that the employee is not physically or mentally fit to perform the duties of his or her position.

If, however, the appointing authority determines that there is probable cause to believe that the continued presence of the employee on the job represents a potential danger to persons or property, or would severely interfere with the operations of the agency, another §-- §72.5 -- allows the employee to be placed immediately on an involuntary leave of absence.

An employee who is placed on leave pursuant to §72.5 may use all of his or her leave credits.

If the individual is later determined not to be physically or mentally unfit for duty, he or she is to be reinstated to the position and leave credits used, or salary lost, is to be restored to the employee, less any compensation he or she may have earned or unemployment benefits received during the period of the §72 leave.

Although one might assume that the restoration of such credits is automatic, the Vickery decision suggests that such is not the case. Here the Appellate Division concluded that if the appointing authority refuses to restore such leave credits, or "lost salary," the employee must commence a timely action to compel it to do so.

On April 20, 1993 Robert Vickery, a parole officer, was told that he was being placed on  leave of absence involuntarily pursuant to §72.5 by the Division of Parole. About six months later Vickery was returned to duty. The Division, however, did not restore Vickery's leave credits to him.

Vickery sued, contending that his reinstatement constituted a de facto determination that he was not physically or mentally unfit to perform his duties and that he was entitled to have the leave credits used to continue him on the payroll restored to him as a matter of law.

The problem here, however, was that despite the fact that the Division wrote to Vickery in March 1994 that he would be required to "charge the time missed from work against his accrued leave credits," he did not initiate litigation challenging that determination until March 1995.

This, said the Appellate Division, meant that even if Vickery was correct that his reinstatement meant that he was not incapacitated from performing his duties, his claim was time-barred. Why was the action time-barred? Because, said the Court, Vickery had to initiate his Article 78 contesting the Division's decision within four months of its final determination. His failure to do so was fatal to his pressing his claim for restoration of his leave credits.

Possible consequences of a police officer volunteering to serve as a defense witnesses in a criminal matter

Possible consequences of a police officer volunteering  to serve as a defense witnesses in a criminal matter

Green v Philadelphia Housing Authority, 105 F.3d 882

Sometimes a police officer is asked to volunteer to be a defense witness at a criminal trial or at a preliminary criminal proceeding. The Green decision explores a number of issues that could arise when a law enforcement officer agrees to serve as a witness for a defendant in a some aspect of a criminal proceeding and the possible consequences of such participation.

Donald Green, a police officer for the Philadelphia Housing Authority, appeared at a bail hearing but did not give testimony. The authority later  transferred Donald Green from special drug enforcement duty to regular patrol duty.

Green contended that his transfer constituted unlawful retaliation for his participating in a protected First Amendment activity. He sued the Authority and a number of his superiors. He failed, however, to persuade the U.S. Circuit Court of Appeal, Third Circuit, that his rights had been violated.

Green had agreed to serve as a character witness for Herbert Keller, the son of a long time friend. He sought and obtained approval to do so from his superiors, provided he participated "during his lunch hour and in civilian clothing." When Green appeared at the hearing, he learned that the charges pending against Keller "included organized crime activity in connection with the Stanfa crime organization."  Green told Keller he could not be associated with the case and left the hearing without testifying.

Conceding that there was no information, or even any suspicion, that Green was involved with organized crime, PHA claimed that his transfer was nonetheless justified. It explained that Green was reassigned "in case there was anything where [the Housing Authority Police Department] might be embarrassed . . ." and because it "was right for the organization."

The Court, applying the "Pickering balancing test" [Pickering v Board of Education, 391 U.S. 563], ruled that Green had to meet the following conditions to prevail:

a. His court appearance must constitute "speech ... on a matter of public concern;" and

b. The public interest favoring his expression "must not be outweighed by any injury the speech could cause to the interest of the state as an employer in promoting the efficiency of the public services it performs through its employees."

The Circuit Court decided that a public employee's appearance as a witness, even in the absence of actual testimony, is "speech" under Pickering and that a public employee's speech involves a matter of public concern if it can "be fairly considered as relating to any matter of political, social, or other concern to the community."

Although Green satisfied both of these requirements according to the Court, this did not prove sufficient for him to win his appeal. The question as to whether Green's free speech interest in testifying as a character witness is outweighed by any injury the speech could cause to the interests of the Housing Authority Police Department as the employer proved to be the critical element in the Court's analysis.

On this issue the Court concluded that "if Green's court appearance could potentially disrupt the work of the Housing Authority Police Department, and this potential for injury outweighs the public's interest in Green's speech, then judgment for the Authority is proper." The Court agreed with the district court's ruling in the Authority's favor as a matter of law. The District Court had decided that Green's appearance at the bail hearing injured PHA's interests in minimizing departmental disruption and maintaining an environment of trust and security.

The Circuit Court held that the fact that Green appeared as a witness at a bail hearing in contrast to serving as a witness at a trial was not compelling when compared to the interests of the Housing Authority Police Department as an employer to:

a. fight drugs and crime successfully;

b. protect the safety of its officers and other members of the community;

c. foster trust and confidence among its officers and between its officers and other law enforcement drug units; and

d. protecting the Housing Authority Police Department's reputation.

The Court rejected Green's argument that he should not be held responsible for creating the potential disruption because he followed departmental procedures and testified only after receiving express permission to do so from his superiors.

Significantly, the Circuit Court held that a public employee in a sensitive position like Green's cannot turn a blind eye to the possible consequences of his voluntary testimony. The responsibility must lie with Green to investigate the nature of the criminal charges, and to bear any risks associated with his voluntary court appearance.