Termination by operation of law

The appointing authority summarily terminated two tenured correction officers under color of  Public Officers Law §30(1)(e). Contending that they were denied the required "disciplinary notice and hearing" as a condition precedent to their dismissal, they initiated an action pursuant to CPLR Article 78 seeking a court order directing their reinstatement to their former positions. The Supreme Court denied their petitions, which ruling was unanimously affirmed by the Appellate Division.

Public Officers Law §30.1 addresses the "Creation  of vacancies" and Subdivision e, in pertinent part provides that an individual's public office shall be vacant upon the "(e)His* conviction of a felony, or a crime involving a violation of his oath of office,...."

The Appellate Division explained that both correction officers** were properly terminated from their positions pursuant to Public Officers Law §30(1)(e), as they were each was charged and convicted of official misconduct in violation of Penal Law §195.00 and a conviction of official misconduct involves misconduct in the line of duty and necessarily involves a violation of the individual's oath of office.

As both correction officers were terminated from their respective positions pursuant to Public Officers Law §30(1)(e), they were not entitled to a pre-termination hearing pursuant to Civil Service Law §75(1)(a) or a disciplinary procedure set out in a collective bargaining agreement negotiated pursuant to Article 14 of the Civil Service Law [the Taylor Law].

* §22 of the General Construction Law, in pertinent part, provides that “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.”

** Law enforcement personnel including correction officers are public officers subject to the provisions of Public Officers Law §30(1)(e) [see Graham v Coughlin, 72 NY2d 1014].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03535.htm

Denying a Freedom of Information Law request for certain unredacted records and reports concerning a correction officer's acts or omissions in the performance of his or her duties

§50-a.1 of the Civil Rights Law concerning the production of the personnel records of police officers, firefighters and correction officers, provides that "[a]ll 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 §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 §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 §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."

In response to a demand for certain records involving the activities and conduct of correction officers, the Appellate Division said that its in camera review of a sampling of the requested documents in unredacted form "reveals that the factual description of events contained in the reports was 'neutral and did not contain any invidious implications capable facially of harassment or degradation of the officer in a courtroom'." To comply with the legislative objective of Civil Rights Law §50-a, explained the court, the custodian of the record must demonstrate a "substantial and realistic potential" for the unredacted reports to be used against the officers in a harassing or abusive manner.

Citing Matter of Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 169 AD3d at 519, the Appellate Division concluded that the nature and a facility's use of unusual incident reports, use of force reports and misbehavior reports, as well as their lack of potential to be used abusively against correction officers, are such that the documents do not qualify as personnel records within the meaning of Civil Rights Law §50-a. Accordingly such unredacted documents are not exempt from disclosure under Public Officers Law §87(2) and the documents should be provided in "unredacted form."

In response to a demand for certain records involving the activities and conduct of correction officers, the Appellate Division said that its in camera review of a sampling of the requested documents in unredacted form "reveals that the factual description of events contained in the reports was 'neutral and did not contain any invidious implications capable facially of harassment or degradation of the officer in a courtroom'." To comply with the legislative objective of Civil Rights Law §50-a, explained the court, the custodian of the record must demonstrate a "substantial and realistic potential" for the unredacted reports to be used against the officers in a harassing or abusive manner.

Citing Matter of Patrolmen's Benevolent Assn. of the City of N.Y., Inc. v De Blasio, 169 AD3d at 519, the Appellate Division concluded that the nature and a facility's use of unusual incident reports, use of force reports and misbehavior reports, as well as their lack of potential to be used abusively against correction officers, are such that the documents do not qualify as personnel records within the meaning of Civil Rights Law §50-a. Accordingly such unredacted documents are not exempt from disclosure under Public Officers Law §87(2) and the documents should be provided in "unredacted form."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03421.htm

Terminating an employee in the Classified Service of New York State or a political subdivision of New York State during his or her probationary period

Typically employees appointed to positions in the classified service* of the State of New York or a political subdivision of the State are subject to their satisfactory completion a probationary period defined in terms of a "minimum period of probation" and a "maximum period of probation."

New York courts have ruled that if the probationer appointed to a position in the Classified Service has not yet completed his or her minimum period probation he or she may not be summarily terminated from the position but is entitled to a  “notice and a  disciplinary hearing” as though he or she held "tenure in the position" on the rationale that a probationary employee is entitled to a minimum period of service to demonstrate his or her ability to satisfactorily perform the duties of the position.**

On the other hand, a probationary employee serving a position in the Classified Service may be summarily terminated at any time after completing his or her minimum period of probation prior to completing his or her maximum period of probation without notice and hearing*** unless otherwise provided by the terms of a collective bargaining agreement negotiated pursuant to the Taylor Law [Civil Service Law Article 14]. 

A fire district terminated a probationary firefighter [PF] shortly before the expiration of his probationary period. PF challenged his dismissal by filing a petition pursuant to CPLR Article 78 seeking judicial review the fire district's decision to terminate his employment. The Supreme Court denied PF's petition and dismissed the proceeding. PF appealed the Supreme Court's ruling.

Citing Swinton v Safir, 93 NY2d 758, the Appellate Division, sustaining the lower court's decision, explained that judicial review of the dismissal of a probationary employee is limited to whether the dismissal was [1] made in bad faith; [2] for a constitutionally impermissible purpose; or [3] in violation of statutory or decisional law. Accordingly, only if the dismissed probationary employee raises a material issue of fact as to whether the dismissal was made in bad faith, or for an illegal reason, or in violation of law, his or her employment may be terminated without a hearing or a statement of reasons for his or her dismissal from the position.

Further, opined the Appellate Division quoting from Petkewicz v Allers, 137 AD3d at 1045, the probationer has "the burden of raising a material issue as to bad faith or illegal reasons, and conclusory allegations of misconduct or unlawfulness are insufficient to meet this burden."

The opinion notes that PF failed to raise a material issue as to bad faith or any other improper reason for his termination and that the record demonstrates that "the termination had a rational basis and that [PF's] allegations to the contrary were speculative or conclusory."

* See §§40 - 45 of the Civil Service Law

** McKee v Jackson, 152 AD2d 54

*** Gray v Bronx Developmental Center, 65 NY2d 904

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03043.htm

New York State's Military Law provides certain benefits to a public employee "deployed on military service" before completing his or her probationary period

The Appellate Division reversed Supreme Court's denial of the CPLR Article 78 petition filed by a New York City police officer [Petitioner] seeking reinstatement to her position after the New York City Police Department [Department] terminated her employment as a probationary police officer.

Petitioner was appointed as a probationary police officer in July 2012. In February 2014, before her two-year probationary period had been completed, Probationer was placed on "restricted duty," after the Department became aware of facts suggesting she had not disclosed certain aspects of her medical history, diagnoses and treatment on application forms and her term of her probationary period was extended. 

In August 2014, while Petitioner was on "restricted duty" and still serving as a probationary employee, she was deployed on military duty and was placed on military leave by the Department. While Petitioner was on such military leave, the Police Commissioner approved recommendations to terminate Petitioner's employment with the Department. Upon her return from military duty in June 2016, Probationer was informed that "her probationary employment was summarily terminated."

Petitioner contended that the Department could not summarily terminate her employment as she had attained tenure in the position while she was absent on military leave and thus was entitled to "notice and hearing" on disciplinary charges before she could be terminated from her position.

The Appellate Division, citing 55 RCNY 5.2.2[b], agreed with Petitioner, explaining that New York City's personnel rules provide that "[s]ubject to the provisions of the [M]ilitary [L]aw," the computation of a probationary period is based on time the employee is "on the job in a pay status." The court noted that the City's personnel rules also provide that, notwithstanding rule 5.2.2, the probationary period will be extended while a probationer "does not perform the duties of the position."

However, opined the Appellate Division, the rules relied on by the Department are expressly subject to Military Law §243(9), which provides, in pertinent part, "that if a probationary employee is deployed on military duty before the expiration of his or her probationary period", the time he or she is absent on military duty shall be credited as satisfactory service during such probationary period." In addition, said the court, "§243(9) does not distinguish between probationers on restricted or modified duty and those on full duty status at the time of deployment, or give an appointing authority discretion to distinguish between such types of probationers."

The Appellate Division, reversing the Supreme Court's decision "on the law", granted the Article 78 petition and remanded the matter "for further proceedings consistent herewith," indicated that its "decision does not foreclose further action by [the Department]." This statement may be alluding to the possibility of the Department's undertaking action addressing the issue concerning the Petitioner having been placed on "restricted duty" after the Department learned that she may not have disclosed certain facts on her employment  application forms.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03277.htm

Determining eligibility for workers' compensation benefits when an employee is injured while "off duty"

A New York City Transit Authority [Authority] employee [Claimant] was assigned to work the 12:00 a.m. - 8:00 a.m. shift. Claimant "clocked out" ten minutes early "having completed his shift" and took an Authority train to return home.

As Claimant left the train, he was assaulted by another passenger, suffering multiple injuries and applied for workers' compensation benefits. The Workers' Compensation Law Judge denied Claimant's application for benefits, ruling that Claimant's injuries "did not arise out of and in the course of his employment." Upon review, the Workers' Compensation Board affirmed the Law Judge's ruling and Claimant appealed the Board's decision.

The Appellate Division affirmed that Board's determination, explaining that an injury is only compensable under the Workers' Compensation Law "if it arose out of and in the course of a worker's employment and, in general, injuries sustained in the course of travel to and from the place of employment do not come within the statute."*

Further, opined the Appellate Division, "[a]lthough there are recognized exceptions to this 'going and coming' rule, none applies here and we find that substantial evidence supports the Board's determination that Claimant's injuries sustained while traveling home from work are not compensable" as at the time of the assault, Claimant was not at his assigned train station, and "having clocked out of work," he was not on duty or performing any of the duties of his employment, nor was Claimant on an errand for the employer and there was no evidence that Claimant was required to use the trains to commute to work or that the employer benefited from the route that he used to travel home.

One such exception alluded to in the decision is demonstrate in Neacosia v New York Power Authority, [NYPA] 85 NY2d 47. 

In Neacosia, the Court of Appeals decided that Neacosia, a NYPA security officer, who was injured in a car accident after he stopped on his way home to leave his work uniform at a cleaning shop was acting within the scope of his employment and thus was eligible for workers' compensation benefits.

NYPA "provided its security officers with uniforms and required that they keep the uniforms clean and presentable." To assist in this, NYPA had made arrangements with a number of cleaning establishments in the area to clean the uniforms and bill the agency for their services.**

After completing his shift Neacosia stopped to deliver his uniforms to one of the cleaners recommended by the Authority on his way home. After leaving his uniform at the cleaner's, Neacosia headed home along his usual route and was  involved in an automobile accident, sustaining severe injuries.

Claiming that his injuries arose out of and in the course of his employment, Neacosia filed for workers' compensation benefits. NYPA controverted the claim but ultimately  the Court of Appeals affirmed the Workers’ Compensation Board's determination that Neacosia suffered an injury that arose “out of and in the course of [his] employment" because the security officer used one of the facilities with which NYPA had made arrangements to do the cleaning and bill NYPA for the cleaning services it provided to the security officer.

* The Appellate Division cited Lemon v New York City Tr. Auth., 72 NY2d 324, in which the Court of Appeals ruled that "Injuries incurred while commuting to work are generally not covered because 'the risks inherent in traveling to and from work relate to the employment only in the most marginal sense.'"

** In the alternative, security personnel could arrange for the uniform's cleaning to be done by a cleaner not on NYPA's list of cleaners and submit his or her bill for the cost of the cleaning to NYPA for reimbursement. However, a security officer electing to avail himself or herself of this alternative option may not come within the ambit of the rationale applied by the Court of Appeals in Neacosia.

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_03122.htm