Making it right notwithstanding two wrongs

In the event two or more employees are found guilty of being involved in a wrongdoing, one individual might decide to sue one or more of the other wrongdoers for redress or damages.

In a case involving Person A lending some money to a friend, Person B. Person B later refused to repay a loan contending that the repayment of the money is not judicially enforceable because the loan was funded by the proceeds of illegal gambling, which resulted in Person A suing Person B seeking a court order mandating that Person B repay the loan to Person A.

The Court of Appeal, affirming a ruling by the Appellate Division, held:

'The doctrine of waiver does not preclude consideration of [Person B's] challenge here to the enforceability of the loan on the ground that it was funded by illegal gambling proceeds. Nevertheless, that defense was properly rejected on the merits. Given our strong public policy favoring freedom of contract, agreements are generally enforceable by their terms (159 MP Corp. v Redbridge Bedford, LLC, 33 NY3d 353, 359-361 [2019]). There is an affirmed finding, supported by the record, that the parties entered into a bona fide loan agreement and the facts do not support voiding the agreement on public policy grounds.

"Neither the terms of the agreement nor [Person A's] performance — i.e., loaning money to a friend — was intrinsically corrupt or illegal. Although the loan was funded by the parties' illegal gambling operation (for which both were criminally prosecuted), the record does not support a characterization of their conduct as "malum in se, or evil in itself" (Lloyd Capital Corp. v Pat Henchar, Inc., 80 NY2d 124, 128 [1992]) and the source of funds used for a loan is not typically a factor in determining its validity.

"[Person B] argues the agreement should be deemed unenforceable because the courts should not assist a party in profiting from ill-gotten gains. But, here, where both parties were involved in the underlying illegality, neither enforcement nor invalidation of the contract would avoid that result. Indeed, if the loan is not enforced, [Person B] receives a windfall despite his participation in the criminal acquisition of the funds. We have been reluctant to reward "a defaulting party [who] seeks to raise illegality as a sword for personal gain rather than a shield for the public good'" (id., quoting Charlebois v Weller Assoc., 72 NY2d 587, 595 [1988]; cf. McConnell v Commonwealth Pictures Corp., 7 NY2d 465 [1960]). Although we do not condone [Person A's] illegal bookmaking business, for which he was prosecuted and fined, the circumstances presented here do not warrant a departure from this tenet."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_09058.htm

Effective date of permanent appointment to a position in the classified service

In an appeal challenging the termination of an employee before the completion of his probationary period, the Appellate Division  noted  that the appointing authority had determined that at the time of the employee's termination there were 25 days remaining in his probationary period and that, because he had not yet been "permanently appointed to the position, he was not entitled to a pretermination hearing under Civil Service Law §75 or the applicable collective bargaining agreement."

It would have been more accurate had the appointing authority indicated that there were 25 days remaining in the employee's probationary period and that although he had completed his minimum period of probation, he had not yet attained tenure in the position and thus the employee, although appointed to the position as a permanent employee, was not entitled to a Civil Service Law §75 pretermination hearing or an equivalent disciplinary procedure set out in the controlling collective bargaining agreement

As a general rule, an individual appointed to a position on a permanent basis has such status on the effective date of the "permanent appointment" but does not attain tenure in the position until:

[1] he or she satisfactorily completes his or her maximum period of probation; or

[2] by estoppel, acquisition, default, or otherwise by operation of law; or

[3] as the result of the appointing authority's lawfully truncating the individual's maximum period of probation.

In addition, tenure may be acquired in consideration of certain military service performed during a probationary period or by other lawful process.

York v McGuire, 63 NY2d 760, sets out the basic rule concerning the dismissal of probationary employees as follows: “After completing his or her minimum period of probation and prior to completing his or her maximum period of probation, a probationary employee can be dismissed without a hearing and without a statement of reasons, as long as there is no proof that the dismissal was done for a constitutionally impermissible purpose, or in violation of statutory or decisional law, or the decision was made in bad faith.”

This limitation on summarily dismissing a probationary employee during the minimum probationary period is to provide the individual a minimum period of time to demonstrate his ability to satisfactorily perform the duties of the position. In contrast, should the appointing authority elect to terminate a probationary employee before he has completed the required minimum period of probation, the individual is entitled to administrative due process, i.e., "notice and hearing," otherwise to be accorded a "tenured employee."

Further, the distinction between a date of "permanent appointment" in the position in contrast to the date on which an appointee "attains tenure" in the position is illustrated in other provisions of the Civil Service Law such as §80.1, Layoff, where, in pertinent part, it provides that ... incumbents holding the same or similar positions shall be made in the inverse order of original appointment on a permanent basis in the classified service in the service of the governmental jurisdiction in which such abolition or reduction of positions occurs".

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2019/2019_05744.htm

Where certain disciplinary charges and specifications fail to survive judicial review the appointing authority must determine the appropriate penalty to be imposed based on the surviving charges and specifications

The Appellate Division ruled that dismissal of one or more Charges and, or, specification set out in a §75 disciplinary action required remanding the matter to the appointing authority for reconsideration of the disciplinary penalty imposed on the employee.

The appointing authority filed disciplinary charges against an employee [Petitioner] pursuant to Civil Service Law §75. Charge I consisted of six specifications alleging misconduct and, or, incompetence in connection with the Petitioner's performance in handling "911 calls" on a specified date while Charge II, consisted of five specifications, alleged misconduct and, or, incompetence in  Petitioner's handling of 911 calls on a different specified date.

After Petitioner testified concerning the "911 calls" underlying Charges I and II, the appointing authority directed a further investigation into the Petitioner's handling of other 911 calls. The findings resulting from this "further investigation" led to the appointing authority's filing "seven supplemental charges", Supplemental Charges I through and including VII against the Petitioner. Each such supplemental Charge set out multiple specifications of alleged misconduct in Petitioner's handling of these seven additional "911 calls."

The §75 disciplinary hearing officer designated by the appointing authority found Petitioner guilty of various, but not all, Charges and specifications and recommended that the Petitioner's employment be terminated given "the number and extent of his instances of misconduct and/or incompetence."

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

The Appellate Division explained that judicial review of an employee's 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. Further, the Appellate Division opined that courts may not weigh the evidence or reject the choice made by the appointing authority where the evidence is conflicting and room for choice exist, or where  different inferences may be drawn, as "the duty of weighing the evidence and making the choice rests solely upon the [appointing authority]."

Here any credibility issues were resolved by the disciplinary hearing officer. Further, 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. Here, however, the Appellate Division ruled that "specifications 3 and 4 of Charge II, and  a portion of specification 6 of Supplemental Charge VII cannot be sustained."

Concluding that the appointing authority had imposed the penalty of termination of Petitioner's employment in consideration of "all of the specifications for which he was found guilty, and [the court had dismissed] three of those specifications," the Appellate Division, citing Aronsky v Board of Educ., Community School Dist. No. 22 of City of N.Y., 75 NY2d 997, vacated the penalty of dismissal 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" in consideration of only the Charges and specifications that had survived judicial review.

The decision is posted on the Internet at:

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

New Executive Director of the New York State Committee on Open Government named

On January 6, 2020, New York's Secretary of State Rossana Rosado announced the appointment of Shoshanah Bewlay, Esq., as Executive Director of the New York State Committee on Open Government.

Ms. Bewlay previously served as the General Counsel and Chief Legal Officer at the NYS Office of Information Technology Services, where she oversaw the agency’s legal department, providing advice and guidance on legal and regulatory compliance, information security and data breach response, legal and technical eDiscovery compliance for the New York State executive agencies, New York State IT policy and strategy alignment, IT procurement and contracting, and New York State public ethics. Prior to serving as the General Counsel, Ms. Bewlay served as the agency’s Records Access Officer and Personal Privacy Protection Officer.

The Committee on Open Government, housed in the Department of State, oversees and advises the government, public, and news media on Freedom of Information, Open Meetings, and Personal Privacy Protection Laws. The Committee offers guidance in response to phone inquiries, prepares written legal advisory opinions, and provides training to government and other interested groups. Recommendations to improve open government laws are offered in an annual report to Governor and the State Legislature.

Information concerning the jurisdiction and operations of the Committee on Open Government is posted on the Internet at:

https://www.dos.ny.gov/coog/index.html

First Amendment protections do not extend to agency fee payors in a collective bargaining unit established pursuant to the Taylor Law

The New York State Thruway Authority [Authority] initiated a layoff involving certain thruway employees, including individuals that were "agency fee payors" as permitted by Article 14 of the Civil Service Law, typically referred to as the Taylor Law.  Danny Donohue, as President of the Civil Service Employees Association, Inc., Local 1000, AFSCME, AFL-CIO, and others [Plaintiffs] filed suit against the Authority alleging that the termination of union-represented employees violated the employees' First Amendment right of association.

In the course of the litigation the Federal District Court, Southern District of New York had certified the following question to the United States Circuit Court of Appeals, Second Circuit, citing its decision in State Employees Bargaining Agent Coalition v. Rowland:*

Are 'union-represented individuals during the bargaining process' — consisting of both union members and agency fee shop payors [AFPs]** — a protected class, such that employment decisions based on employees' union representation during collective bargaining are subject to strict scrutiny?

The Circuit Court of Appeals, considering its decision in Rowland in which it ruled that union activity is protected by the First Amendment right to freedom of association and that heightened scrutiny applies to employment decisions that target an employee “based on union membership,” held that Rowland did not extend to AFPs represented by an employee organization for the purposes of the Taylor Law.

The court found that First Amendment protections applied to union members but did not extend to AFPs based on union representation alone, explaining "AFPs who affirmatively disassociated with a union by objecting to paying for a union's political and ideological projects but who continued to be represented by the union during collective bargaining could not claim that an adverse employment action interfered with their right to associate with the union. In extending Rowland to all AFPs purely because they were represented by a union in collective bargaining, the District Court went too far."

Accordingly, the Circuit Court vacate and remand the district court’s order as it applied to AFPs but affirm the District Court’s order as it applied to union members.

* See 718 F.3d 126.

**  In accordance with the Supreme Court's decision in Janus v. American Federation of State, County, and Municipal Employees Council 31, 138 S. Ct. 2448, a union may no longer collect any fee from an AFP absent the AFP's affirmative consent.

The decision is posted on the Internet at:

https://law.justia.com/cases/federal/appellate-courts/ca2/17-2832/17-2832-2019-11-18.html