Elements considered by courts in reviewing an individual's appeal of an adverse disciplinary decision by an appointing authority

Elements considered by courts in reviewing an individual's appeal of an adverse disciplinary decision by an appointing authority

Thomas v Town of Southeast, 2019 NY Slip Op 00446, Appellate Division, Second Department

In an employee disciplinary matter conducted pursuant to §75 of the Civil Service Law, judicial review of factual findings made after a hearing is limited to consideration of whether that determination was supported by substantial evidence. Further, in the event there is conflicting evidence, or different inferences that may be drawn from the evidence, the duty of weighing the evidence and making the choice rests solely upon the appointing authority and courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exists.

Timothy Thomas, an employee of by the Town of Southeast Highway Department was served with disciplinary charges pursuant to §75 alleging that he had committed various acts of misconduct over a period of some 10 months including instances of disobeying the orders of a superior, including one instance in which his failure to follow the directions of the highway department Superintendent allegedly placed the Thomas, a coworker, and the general public in danger; being absent from work for two days without obtaining prior approval for such absence; and threatening and physically confronting the Highway Department Superintendent in the Department's garage.

At the disciplinary hearing Thomas denied the alleged charges of misconduct while a number highway department employees testified to the contrary. In addition, relevant camera surveillance footage, as well as audio recordings, was introduced into evidence by the Town in support of charges it had filed against Thomas and was made part of the record by the hearing officer.

At the conclusion of the hearing, the hearing officer found the Thomas guilty of some, but not all, of the charges filed against him. The hearing officer recommended Thomas be terminated from his employment "given the nature of the incidents, [Thomas'] lack of credibility and lack of remorse, and his previous disciplinary suspension of five days for harassing a co-worker and improper performance of his duties, as well as previous reprimands."

The appointing authority adopted the hearing officer's findings and recommendation and terminated Thomas' employment, whereupon Thomas filed a petition pursuant Article 78 of the CPLR seeking a judicial review of the Town's action.

The Appellate Division dismissed Thomas' appeal, explaining that any credibility issues were resolved by the hearing officer (see Matter of Reed v Raynor, 151 AD3d 730), and substantial evidence in the record supported the determination that the Thomas was guilty of the misconduct alleged in the surviving charges of misconduct.

The Appellate Division noted that a court may set aside an administrative disciplinary penalty only if it is so disproportionate to the offense as to be shocking to one's sense of fairness (see Matter of Walden v Town of Islip, 6 NY3d 735), and although "reasonable minds might disagree over what the proper penalty should have been," such a consideration does not provide a basis for a court to "refashioning the penalty," citing City School Dist. of the City of N.Y. v McGraham, 17 NY3d 917. 

The Appellate Division decided that the penalty imposed on Thomas' by the appointing authority, dismissal from his employment, "is not so disproportionate to the offenses as to be shocking to one's sense of fairness, especially in light of the number of incidents and the petitioner's prior disciplinary record."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00446.htm

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Twenty-six New York State school districts designated as being in "fiscal stress"

New York StateComptroller Thomas P. DiNapoli reports 26 school districts in New York State are in "fiscal stress"

Source: Office of the State Comptroller

Links to material posted on the Internet highlighted in color

Twenty-six school districts have been designated as fiscally stressed under New York State Comptroller Thomas P. DiNapoli’s Fiscal Stress Monitoring System.* Although the same number of districts were designated in fiscal stress last year, many of the entities in this year’s list have changed. Only 12 were designated as stressed in both 2018 and 2017.

Using financial indicators that include year-end fund balance, cash position, short-term borrowing and patterns of operating deficits, DiNapoli’s monitoring system creates an overall fiscal stress score which drives the classification.

“Despite the ongoing financial pressures facing school districts, our fiscal stress monitoring system has revealed encouraging results in several communities,” said DiNapoli. “However, school boards and superintendents must remain cautious. Today’s budget decisions can have long-lasting implications and can quickly move a district into fiscal stress.”

This year, five school districts are designated in “significant fiscal stress” and the remaining 21 as “susceptible to fiscal stress.” The scores are based on the evaluation of 672 school districts with fiscal years ending on June 30, 2018.

The five school districts that were classified in “significant stress” are Eldred (Sullivan County); New Suffolk (Suffolk); Norwich (Chenango); Schenevus (Otsego) and Wyandanch (Suffolk).

A report released by DiNapoli today in conjunction with the fiscal stress scores showed the regions of Central New York, Long Island and the Southern Tier as those having comparatively high percentages of districts in fiscal stress.

The scores are based on financial information submitted as part of each district’s ST-3 financial report filed with the State Education Department as of Dec. 28, 2018.

* N.B. This announcement does not include scores for the dependent school districts in the “Big Four” cities of Buffalo, Rochester, Syracuse and Yonkers. Information for these districts will be incorporated into the scoring for their respective cities later this year. The monitoring system does not score New York City.

For a list of school districts designated in fiscal stress, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/schools/pdf/2018/stress-list.pdf

For the complete list of school district fiscal stress scores, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/index.htm

For a copy of the fiscal stress report, visit:

https://www.osc.state.ny.us/localgov/fiscalmonitoring/pdf/common-themes-for-school-year-2017-18.pdf

Mitigation of the disciplinary penalty to be imposed found warranted under the circumstances

Mitigation of the disciplinary penalty to be imposed found warranted under the circumstances

OATH Index No. 2137/18

A New York City correction officer was charged with using excessive force against an inmate and submitting a false report.

A video of the incident and respondent’s testimony indicated that a newly-admitted inmate resisted processing. When the correction officer attempted to guide the inmate to a table, the inmate swatted the correction officer's hand away and attempted to spit in the correction officer's face. The correction officer admitted that his hand was briefly was on the inmate’s neck as he tried to push the inmate away.

OATH Administrative Law Judge Noel R. Garcia sustained the excessive force charge but he recommended dismissal the false report charge. Judge Garcia found the correction officer’s written statement was consistent with the video evidence.

The ALJ recommended that correction officer be suspended for thirty-five days without pay, finding mitigation of the penalty was warranted based on the fact that the use of force was set in motion by the inmate’s belligerence, that the inmate did not suffer any injury, consideration of the correction officer’s long service record, and that the correction officer accepted responsibility for his actions.

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/18_cases/18-2137.pdf

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Documents containing information used to evaluate the performance of specified public employees are not subject to disclosure pursuant to a Freedom of Information request

Documents containing information used to evaluate the performance of specified public employees are not subject to disclosure pursuant to a Freedom of Information request

Luongo v Records Access Appeals Officer, 2019 NY Slip Op 00344, Appellate Division, First Department

The Legal Aid Society, New York, appealed a Supreme Court decision denying its petition to compel the New York City Police Department's Records Access Appeals Officer to disclose documents it had requested pursuant to the Freedom of Information Law [FOIL]* and dismissing the proceeding Legal Aid had brought pursuant to CPLR Article 78. The Appellate Division unanimously affirmed the lower courts ruling.

The Appellate Division explained that the New York City Police Department documents at issue contain information used to evaluate a police officer's performance and included such items as the disposition of disciplinary charges brought against the officer.

Further, said the Appellate Division, the records, which contain factual details regarding misconduct allegations and punishments imposed on officers, could contain "material ripe for degrading, embarrassing, harassing or impeaching the integrity of [the] officer[s]," citing New York Civil Liberties Union v New York City Police Department, 2018 NY Slip Op 0842. The court pointed out that the records sought were exempt from disclosure pursuant to Civil Rights Law §50-a.

§50-a.1, which applies to the personnel records of police officers, firefighters and correction officers, provides as follows:

1. All personnel records used to evaluate performance toward continued employment or promotion, under the control of any police agency or department of the state or any political subdivision thereof including authorities or agencies maintaining police forces of individuals defined as police officers in section 1.20 of the criminal procedure law and such personnel records under the control of a sheriff's department or a department of correction of individuals employed as correction officers and such personnel records under the control of a paid fire department or force of individuals employed as firefighters or firefighter/paramedics and such personnel records under the control of the department of corrections and community supervision for individuals defined as peace officers pursuant to subdivisions twenty-three and twenty-three-a of section 2.10 of the criminal procedure law and such personnel records under the control of a probation department for individuals defined as peace officers pursuant to subdivision twenty-four of section 2.10 of the criminal procedure law shall be considered confidential and not subject to inspection or review without the express written consent of such police officer, firefighter, firefighter/paramedic, correction officer or peace officer within the department of corrections and community supervision or probation department except as may be mandated by lawful court order.

However, it should noted that subdivision 4 of §50.1 of the Civil Rights Law provides that "The provisions of this section shall not apply to any district attorney or his assistants,** the attorney general or his deputies or assistants, a county attorney or his deputies or assistants, a corporation counsel or his deputies or assistants, a town attorney or his deputies or assistants, a village attorney or his deputies or assistants, a grand jury, or any agency of government which requires the records described in subdivision one, in the furtherance of their official functions."

* Article 6 of the New York State Public Officers Law.

**  §22 of the General Construction Law provides as follows: Gender. Whenever words of the masculine or feminine gender  appear in any law, rule or regulation, unless the sense of the sentence  indicates otherwise, they shall be deemed to refer to both male or  female persons.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_00344.htm

Applying the Doctrine of Collateral Estoppel

Applying the Doctrine of Collateral Estoppel

Roth v. County of Nassau, United States Court of Appeals, Second Circuit, Index#18-966-cv, Summary order

Rulings by summary order do not have precedential effect.

Craig Roth appealed the federal district court's granting summary judgment dismissing his claims that Nassau County had subjected him to unlawful discrimination after finding that Roth was collaterally estopped from asserting his discrimination claims under the Americans with Disabilities Act (ADA) and the New York State Human Rights Law (NYSHRL).

The Second Circuit Circuit Court of Appeals said that it:

1. reviews a district court’s grant of summary judgment de novo and that the judgment may be affirmed on any ground fairly supported by the record;

2. in reviewing a district court’s application of the doctrine of collateral estoppel de novo, the Second Circuit accepts "all factual findings of the district court unless clearly erroneous; and

3. under New York law, collateral estoppel a. “may be invoked to preclude a party from raising an issue (1) identical to an issue already decided (2) in a previous proceeding in which that party had a full and fair opportunity to litigate”; and b. “the issue that was raised previously must be decisive of the present action.”

Roth conceded that he is collaterally estopped from arguing that he could perform the “essential functions” of a police officer’s job but argued that he was not collaterally estopped from arguing that he could perform the essential functions of the job “with or without reasonable accommodation.” Roth claimed that the state court’s Article 78 order did not adequately address the issue of accommodation, and that he is not barred from demonstrating that he was able to perform the essential duties of the police officer job with or without such accommodation.*

The Second Circuit held that the District Court correctly concluded that Roth’s ADA and NYSHRL claims are precluded under the doctrine of collateral estoppel explaining that Roth’s complaint in this appeal seeks to relitigate issues that were fully and fairly decided during his Article 78 proceeding in New York Supreme Court as his Verified Petition before the New York Supreme Court specifically asserted that his disqualification violated Section 296(1)(a) of the NYSHRL and “may be actionable pursuant to the American’s [sic] with Disabilities Act as that Act protects individuals from employment discrimination based upon an actual or perceived disability.”

Roth's memorandum and reply memorandum in support of his Verified Petition filed with the State Supreme Court claimed to have “established a prima facie case of discrimination" that the County medically disqualified him for the position of police officer because of his medical disability.” In order to demonstrate a “disability” within the meaning of the NYSHRL, said the court, a plaintiff must show that he or she was able to perform the essential functions of the job with or without a reasonable accommodation. Nassau County's medical experts’ medical conclusions was that there was a significant risk that Roth could become mentally or physically incapacitated during bursts of severe exertion, including in pursuing suspects, using force, and rescuing individuals.

Considering the "particular nature of those functions" and Roth’s conceded failure to request any accommodation, the Circuit Court ruled that "absent a clear indication to the contrary the New York Supreme Court reasonably concluded that there was 'substantial evidence' to support a determination that it would have been impossible to provide any reasonable accommodation for those particular essential functions" of a police officer

In the words of the Second Circuit, "Roth’s discrimination claims fail because he is precluded under the doctrine of collateral estoppel from arguing that he was able to perform the essential functions of a police officer with or without a reasonable accommodation."

* Both the NYSHRL and the ADArequire a plaintiff to demonstrate as an element of his or her claim that he or she was able to perform the essential duties of his or her job with or without a reasonable accommodation.

The decision is posted on the Internet at:

https://www.leagle.com/decision/infco20190117078