New York City Office of Administrative Trials and Hearings' administrate law judge finds Appointing Authority failed to prove the disciplinary charges filed against an employee

An employee of the New York Department of Correction [Employee] was served with disciplinary charges pursuant to §75 of the Civil Service Law alleging Employee was guilty of insubordination and inefficient work performance as the result of his leaving his assigned work tasks before their completion on two occasions.

With respect his leaving work on one of the two occasions charged Employee testified that he had asked his supervisor to reassign him to a different work assignment when he felt unsafe working in an inmate area without another employee present.

New York City Office of Administrative Trials and Hearings [OATH] Administrative Law Judge Joycelyn McGeachy-Kuls credited the  Employee’s testimony that he was reassigned to another task that day over the supervisor’s testimony that Employee "did nothing for the rest of the day."

With respect to the second occasion, Employee told his supervisor that he objected to his assignment which required him to work in an inmate area. His supervisor then offered Employee two options:

[a] Employee could request a transfer; or

[b] Employee could return to work.

Employee elected to request a transfer.

Judge McGeachy-Kuls found that the appointing authority had failed to prove any of the §75  disciplinary charges filed against Employee. Accordingly the ALJ  recommended that the Appointing Authority dismiss all disciplinary charges filed against Employee

ALJ McGeachy-Kuls explaining that in this disciplinary proceeding the Appointing Authority had the burden of proving its case by a fair preponderance of the credible evidence and that preponderance has been defined as “the burden of persuading the triers of fact that the existence of the fact is more probable than its non-existence.”

Citing Rinaldi & Sons, Inc. v Wells Fargo Alarm Service, Inc., 39 N.Y.2d 191, Judge McGeachy-Kuls observed that in earlier OATH proceedings the presiding ALJ had ruled that "where the evidence is equally balanced, the charges must be dismissed."

The decision is posted on the Internet at:

http://archive.citylaw.org/wp-content/uploads/sites/17/oath/19_cases/19-1861.pdf

The lawfulness of subpoenas issued by the House Committee on Financial Services and the House Permanent Select Committee on Intelligence

This appeal raises an important issue concerning the investigative authority of two committees of the United States House of Representatives and the protection of privacy due the President of the United States suing in his individual, not official, capacity with respect to financial records.

The specific issue is the lawfulness of three subpoenas issued by the House Committee on Financial Services and the House Permanent Select Committee on Intelligence (collectively, “Committees” or “Intervenors”) to two banks, Deutsche Bank AG and Capital One Financial Corporation (“Capital One”) (collectively, “Banks”).

The issue of the lawfulness of the three subpoenas arises on an expedited interlocutory appeal from the May 22, 2019, Order of the District Court for the Southern District of New York denying Plaintiffs’ motion for a preliminary injunction to prevent the Banks’ compliance with the subpoenas and denying Plaintiffs’ motion for a stay pending appeal.

The Circuit Court affirmed the Order in substantial part to the extent that it denied a preliminary injunction and order prompt compliance with the subpoenas, except that the case is remanded to a limited extent for implementation of the procedure set forth in this opinion concerning the nondisclosure of sensitive personal information and a limited opportunity for Appellants to object to disclosure of other specific documents within the coverage of those paragraphs of the Deutsche Bank Subpoenas listed in this opinion.

The court noted that the Committees agreed not to require compliance with the subpoenas pending the appeal, once the appeal was expedited.

In her partial dissent, Judge Livingston stated that she preferred a total remand of the case for “creation of a record that is sufficient more closely to examine the serious questions that the Plaintiffs have raised” and to “afford the parties an opportunity to negotiate.”

The majority opined that such a remand would run counter to the instruction the Supreme Court has given to courts considering attempts to have the Judicial Branch interfere with a lawful exercise of the congressional authority of the Legislative Branch. 

The decision is posted on the Internet at:

http://www.ca2.uscourts.gov/decisions/isysquery/12ac7ad1-cdf8-401a-9cc7-6bbff1917c9c/2/doc/19-1540_complete_opn.pdf#xml=http://www.ca2.uscourts.gov/decisions/isysquery/12ac7ad1-cdf8-401a-9cc7-6bbff1917c9c/2/hilite/

Public officer is removed from the position by operation of law should he fail to timely file his oath of office upon appointment or reappointment

§30.1[h] of the Public Officers Law, "Creation  of vacancies," provides, in pertinent part, that an office shall be vacant upon the individual's "refusal or neglect to file his official oath or undertaking ...  within  thirty  days  after  notice  of  his appointment, or within thirty days after the commencement of such  term ...."*

A superintendent of schools, [Petitioner], employed pursuant a written employment contract for a four-year term, was served with "41 charges and specifications" which charges and specifications were later supplemented "with 45 amended charges and specifications."

An impartial hearing officer was designated to conduct a disciplinary arbitration proceeding  “to determine whether charging party [School Board] sustained its burden of proving that [Petitioner] materially breached [his employment contract], acted negligently or engaged in gross misconduct” while serving as superintendent, thereby entitling the School Board to remove him from his position as permitted "pursuant to ... his employment contract.”

The School Board 's general counsel, after reviewing the minutes of School Board meetings for the relevant periods of time, determined there was no indication that Petitioner executed, and timely filed, his required an oath of office with the School District's District Clerk.**

Ultimately the School Board adopted a resolution as follows:

"Resolve, that the office of the District’s Superintendent of Schools is deemed vacant pursuant to N.Y. Public Officers Law §30.1.h and pursuant to [the Commissioner’s decision in Application of Karpen; and further

"Resolve, that the office of the District’s Superintendent of Schools, held by [petitioner], is declared vacant; and further

"Resolve, that the contract between the District and [petitioner] is hereby determined to be void, nullified, and of no force and effect ...."

Petitioner appealed the School Board's action to the Acting Commissioner of Education, Beth Berlin, contending that its resolution was pretextual and a mere attempt to terminate a qualified Superintendent in that "he took and filed an oath of office nunc pro tunc after learning of the requirement" and that “custom and past practices prove that [School Board’s] district clerk has historically administered and filed the oaths of office in a bound oath book for all appointed or elected superintendents, board trustees and officers” – but did not do so for Petitioner." As redress, Petitioner asked the Commissioner to direct his reinstatement to his former position with back pay.

Finding the Petitioner's appeal was timely filed, the Commissioner, nevertheless, dismissed Petitioner's appeal "for lack of proper verification." The Commissioner explained that 8 NYCRR §275.5 requires that all pleadings in an appeal to the Commissioner be verified and if not properly verified, dismissed. Here, said the Commissioner, rather than Petitioner verifying the appeal, the appeal was verified by Petitioner’s attorney.  In words of the Commissioner, "Petitioner’s counsel is not a petitioner in this appeal; therefore, his verification is improper, and the appeal must be dismissed."

Although the Commissioner did not rule on the merits of the School District's argument that Petitioner's failure to file a timely oath of office resulted his removal from his position "by operation of law," it is worth noting that in Lombino v Town Board, Town of Rye, 206 A.D.2d 462, [leave to appeal denied, 84 N.Y.2d 807] the court held that the mandates of §30.1(h) are to be strictly construed in the event the jurisdiction declares a public office vacant because of the failure of the incumbent to file his or her oath of office in a timely manner. Further, the failure to file a timely oath cannot be cured by subsequently filing the required oath [Opinion of the Attorney General, 86-41, Informal]. 

* Subject to other provisions of law, the neglect or failure of any state or local officer to execute and file his or her oath of office and official undertaking within the time limited therefor by law shall not create a vacancy in the office if such officer was on active duty in the armed forces of the United States and absent from the county of his or her residence at the time of his or her election or appointment.

** Public Officers Law §15 provides that the acts of a public officer done without his or her taking or filing an official oath are valid and that this section has been interpreted to confer a right to "the statutory compensation therefor" [Opinions of the Attorney General, 1903 Ops Atty Gen 487 and 1979 Ops Atty Gen 29].

The decision is posted on the Internet at:

http://www.counsel.nysed.gov/Decisions/volume59/d17790

Court's dismissal of one or more specification set out in a disciplinary charge requires remanding the matter to the appointing authority for reconsideration of the disciplinary penalty imposed on the employee

The appointing authority filed disciplinary charges against a public safety dispatcher [Petitioner] pursuant to Civil Service Law §75. Charge I consisted of six specifications alleging misconduct and, or, incompetence in connection with the Petitioner's handling of a request for assistance on a specified date and Charge II, consisted of five specifications, alleged misconduct and, or, incompetence in connection with the Petitioner's handling of a request for assistance on a different specified date. Petitioner testified that, aside from the two "911" calls forming the bases of Charges I and II, he had never hung up on callers or yelled at callers.

The appointing authority then directed a further investigation into the Petitioner's handling of other 911 calls. As a result in this investigation the appointing authority filed "seven supplemental charges", Supplemental Charges I through and including VII against the Petitioner, each consisting of multiple specifications, arising from the seven additional calls.

Ultimately the designated disciplinary hearing officer found Petitioner guilty of specifications 5 and 6, as well as a portion of specification 4, of charge I; specifications 3, 4, and 5 of charge II; specification 4 of Supplemental Charge II; specification 4 of Supplemental Charge III; specification 4 of Supplemental Charge IV; specifications 4 and 5 of Supplemental Charge V; specification 4 of Supplemental Charge VI; and specification 4, as well as a portion of specification 6, of Supplemental Charge VII. The hearing officer recommended termination of the Petitioner's employment given "the number and extent of his instances of misconduct and/or incompetence" demonstrating that he is "not a reliable or responsible 9-1-1 dispatcher." The appointing authority adopted the hearing officer's findings and recommendation, and terminated the Petitioner's employment.

Petitioner then initiated a CPLR Article 78 action in Supreme Court seeking a judicial review the appointing authority's determination. Supreme Court transferred the matter to the Appellate Division pursuant to CPLR §7804(g).

The Appellate Division commenced its review of Petitioner's appeal by noting that judicial review of an Article 78 proceeding involving employee discipline made after a hearing pursuant to Civil Service Law §75 is limited to consideration of whether that determination was supported by substantial evidence. The court then explained that "When there is conflicting evidence or different inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the [administrative agency]. The courts may not weigh the evidence or reject the choice made by [such agency] where the evidence is conflicting and room for choice exists."

Here, said the court, any credibility issues were resolved by the hearing officer and substantial evidence in the record supports the determination that the Petitioner was guilty of the misconduct alleged in certain, but not all, Charges and Specifications, holding that specifications 3 and 4 of Charge II, and  a portion of specification 6 of Supplemental Charge VII cannot be sustained.

As the appointing authority had imposed a penalty of termination of Petitioner's employment in consideration of "all of the specifications for which he was found guilty, and [the Appellate Division had dismissed] three of those specifications," the court, citing Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, vacated the penalty of dismissal imposed on Petitioner and remitted the matter to the appointing authority "to consider the appropriate penalty to be imposed upon the remainder of the charges and specifications for which he was found guilty, and the imposition of that penalty thereafter."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_07582.htm

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A Reasonable Disciplinary Penalty Under the Circumstances

Determining an appropriate disciplinary penalty to be imposed on an employee in the public service found guilty of misconduct or incompetence.

For more information click on http://booklocker.com/7401.html

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State Joint Commission on Public Ethics sued by individual claiming not to be a lobbyist and thus not subject to the filing requirements applicable to professional lobbyists

§1-c of Article 1-A of the Legislative Law, the Lobbying Act, provides as follows: 

"As used in this article unless the context otherwise requires: (a) The term 'lobbyist' shall mean every person or organization retained, employed or designated by any client to engage in lobbying. The term 'lobbyist' shall not include any officer, director, trustee, employee, counsel or agent of the state, or any municipality or subdivision thereof of New York when discharging their official duties; except those officers, directors, trustees, employees, counsels, or agents of colleges, as defined by section two of the education law."*

An individual [Plaintiff] is suing the New York State Joint Commission on Public Ethics alleging the Commission is conducting an “improper and abusive” investigation into her activities concerning  her efforts to raise awareness about sexual assault and support for the State Legislature's passing the Child Victim’s Act in 2018. Plaintiff claims that she was not involved in lobbying within the meaning of the Lobbying Act and thus is not subject to the filing requirements mandated for professional lobbyists.*

A similar argument was raised by an individual [Petitioner] who was deemed to be a lobbyist under Missouri Law. After a five-year legal battle in federal courts the individual, who claimed he was merely a person spreading his own ideas on limited government and not a paid advocate for others, prevailed.

The full bench of the Circuit Court ruled that Petitioner did not have to register as a lobbyist before speaking to lawmakers, reversing an earlier decision by a three-member panel in a dispute that was reported to have resulted from a complaint against Petitioner filed by the Society of Governmental Consultants.

* See, also, §§1-15 of the Unconsolidated Law.

The text of the Circuit Court's decision is posted on the Internet at:

https://ecf.ca8.uscourts.gov/opndir/19/11/172654P.pdf