An individual's claim of unlawful retaliation by the appointing authority in violation of civil rights laws must allege temporal proximity

Petitioner's [Plaintiff] appealed Supreme Court's granting the appointing authority's motion to dismiss Plaintiff's retaliation claim which she had filed pursuant to New York City's Human Rights Law.

The Appellate Division affirmed the Supreme Court's ruling, explaining that Plaintiff failed to allege a causal connection, based on temporal proximity* between her complaints about a supervisor's alleged discriminatory conduct and four alleged disadvantageous employment actions she claimed had to have suffered in 2017.

Noting that Plaintiff's earlier federal litigation was too remote in time and the instant complaint did not allege any "other facts supporting causation," the Appellate Division held that Plaintiff cannot show a causal connection between complaints she made "in March, May, and June 2017, which were resolved in July 2017" and the appointing authority's September 2017 decision to transfer Plaintiff after two short-term assignments to another field office.

Likewise, opined the Appellate Division citing Sims v Trustees of Columbia Univ. in the City of N.Y., 168 AD3d 622, Plaintiff cannot show a causal connection between her complaints and the three suspensions that Plaintiff served in 2017 arising from conduct pre-dating her complaints as those penalties were a "continuation of a course of conduct that had begun before [she] complained."

* The term temporal proximity in law refers to how close in time different things occurred. 

** See Brown v City of New York, 622 F Appx 19, [2d Cir 2015].

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03721.htm

Appointing authorities generally have broad discretion in determining the fitness of candidates appointed to positions in the classified civil service during the probationary period

Article V, §6 of New York State's Constitution Civil provides that appointments and promotions in the Civil Service "shall be made according to merit and fitness." Satisfactory completion of a probationary period of service is typically required where the employee has been "appointed on a permanent basis"* and is provided to give the appointing authority an opportunity to determine the fitness of the probationer for the position and to give the probationer a reasonable opportunity to demonstrate his ability to satisfactorily perform the duties of the position.**

The Petitioner [Officer] was employed as a police officer in a police department [Department] and passed the examination for promotion to Sergeant. He was subsequently promoted to Sergeant, subject to Officer's  satisfactory completion of a six-month probationary period. Prior to the end of his probationary period Officer received written notice that he was to be reinstated to his former rank of police officer because he had failed to satisfactorily complete his probationary period.

Officer brought a CPLR Article 78 challenging the Department's decision to reinstate him to his former rank alleging that the Department's action [1] was arbitrary and capricious, [2] made in bad faith and [3] made without the Department complying with its own procedures in evaluating him during the probationary period. Supreme Court, following a hearing, denied the Officer's petition and dismissed the proceeding. Officer appealed.

The Appellate Division, citing Matter of Messenger v State of New York Dept. of Corr. & Community Supervision, 151 AD3d 1433, affirmed the Supreme Court's ruling, explaining that "An employee's probationary appointment may be terminated . . . for any reason, or no reason at all, so long as the termination was not in bad faith or for an improper or impermissible reason." Further, said the court, Officer bears a heavy burden of proof in demonstrating that challenged administrative action was made in bad faith, or for an improper or impermissible reason, "for which conclusory allegations and speculative assertions will not suffice." Further, noted the court, "[Appointing] authorities generally have wide discretion in determining the fitness of candidates for the appointment to a civil service title, and this discretion is particularly broad in appointment of law enforcement officers, to whom high standards may be applied."

The Appellate Division opined that Officer's submissions and the testimony at the hearing failed to demonstrate that the Department's decision with respect to his failure to satisfactorily complete his probationary period upon his promotion to Sergeant was made in bad faith, or that it was based on an improper or impermissible motive as the evidence and testimony adduced by the Department established that its decision to terminate the Officer's probationary appointment to the rank of sergeant was made in good faith. Further, said the court, Officer failed to demonstrate that the factors relied upon by the Department in reaching its determination were merely pretextual.

Addressing Officer's contention that the Department acted in bad faith for allegedly failing to adhere to its own procedures concerning probationary evaluations, the Appellate Divisions said that the Department complied with its practice that a probationer shall receive an "interim" and "final" performance evaluation. In addition the court noted that assuming that the Department was obligated to evaluate probationary employees "every two months," as asserted by the Officer, the record shows that precinct supervisors met with the Officer on multiple occasions during his probationary period to discuss behavior and incidents that were later determined by the appointing authority to reflect poorly on the Officer's judgment and performance, or which violated the Department's rules.

The Appellate Division concluded that the Department's efforts to alert the Officer to behavior and performance issues it deemed unsatisfactory demonstrated substantial compliance with its own internal procedures, and moreover, complied with its general obligation to adequately advise the [Officer] of his status and progress during the probationary term.

Finding that the Officer failed to demonstrate that the Department's decision to reinstate him to his former rank was made in bad faith, or was based on an improper or impermissible motive, the Appellate Division said it agreed with the Supreme Court's determination to deny the petition and dismiss the proceeding.

* There are certain exceptions to this requirement. For example, an individual reinstated to a vacancy from a preferred list is not required to serve a probationary period upon such appointment unless the individual's name was placed on the preferred list prior to the completion of his then probationary term whereupon the  probationer is required to satisfactorily complete his probationary term upon reinstatement.

** In York v McGuire, 63 NY2d 760, the Court of Appeals set 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.” Should an appointing authority wish to terminate a probationer prior to the end of the probationer's minimum probationary period, the probationer must be accorded administrative due process, which typically requires "notice and hearing."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_03789.htm

New York State State Comptroller Thomas P. DiNapoli reports that low inflation rate impacts property tax levies for counties, towns and cities

Property tax levy growth for local governments with fiscal years closing Dec. 31 will be capped at 1.56 percent for 2021, according to State Comptroller Thomas P. DiNapoli. This figure affects tax cap calculations for all counties, towns, fire districts, 44 cities and 11 villages.*

“The pandemic and the fiscal uncertainties municipalities are facing add to the challenge of adhering to the tax cap,” DiNapoli said. “At the same time the levy growth rate is dropping, both revenues and spending could deviate significantly from what was planned. Local governments must closely monitor their budgets to ensure they are balanced and that they have cash on hand.”

The tax cap, which first applied to local governments and school districts in 2012, limits annual tax levy increases to the lesser of the rate of inflation or 2 percent with certain exceptions, including a provision that allows municipalities to override it. The cap is just one of many fiscal pressures facing local governments during the COVID-19 pandemic.

The 1.56 percent allowable levy growth factor for the 2021 fiscal year is the first time municipalities with a fiscal year ending on Dec. 31 had their levy growth capped at less than 2 percent in three years. Levy growth was capped at 2 percent for these municipalities due to inflation above 2 percent in recent years.

* Click on text in colorfor access to:

Chart

List of Tax Levy Growth Factors  

Report

Under Pressure: Local Government Revenue Challenges During the COVID-19 Pandemic

Guidance for reopening schools in New York State

On July 13, 2020, Governor Andrew M. Cuomo announced new, data-driven guidance for reopening schools in New York State allowing schools in New York State Regions in Phase IV to reopen if the daily infection rate remains below 5% using a 14-day average. However, schools will close if Regional Infection Rate rises over 9% after August 1, 2020.

The finalized Department of Health and the Reimagine Education Advisory Council guidance and guiding principles are posted on the Internet at:  

https://www.governor.ny.gov/sites/governor.ny.gov/files/atoms/files/Pre-K_to_Grade_12_Schools_MasterGuidence.pdf.*

Among the topics addressed in the State's guidance materials are the following:

Aftercare and Extracurricular activities

Cleaning and Disinfecting

Cohort Structures

Food Service

Masks and Personal Protection Equipment [PPE]

Restructuring Space to Maximize In-Class Instruction

Screening

Social Distancing

Tracing

Transportation

* N.B - The New York State School Board Association notes that "the State Education Department said that Plexiglas® and similar plastic glazing materials called plexiglass are flammable and do not meet fire code or SED regulations. For more information, visit the Office of Facilities Planning website."

New York State's Commissioner of Education does not issue advisory opinions

In Decisions of the Commissioner of Education, Decision No. 17,827, Interim Commissioner of Education Shannon Tahoe dismissed an appeal filed pursuant to Education Law §310 seeking the removal of a member of a school board [Board Member] on the grounds that the Petitioner sought an advisory opinion.

In the words of Commissioner Tahoe:

"The appeal must be dismissed as seeking an advisory opinion.  It is well established that the Commissioner does not issue advisory opinions or declaratory rulings in an appeal pursuant to Education Law §310.* While [Petitioner] complains of prior statements and affiliations of [Board Member], she does not seek any relief against [Board Member] – for example, [Board Member's] removal from office (see Education Law §306).

"Instead, [Petitioner] merely seeks an advisory opinion that school board members may not, consistent with their duties and responsibilities, directly or indirectly support abstention from [State Education Department] SED assessments.  There are no specific allegations that [Board Member] engaged in inappropriate conduct while serving as a board member.

"Thus, [Petitioner’s] query is advisory in nature and cannot be the subject of an appeal brought pursuant to Education Law §310."

Addressing a procedural defect in Petitioner's appeal, Commissioner Tahoe noted that:

"... to the extent [Petitioner] asserts claims against [Board Member] under Education Law §306 or §310, she has failed to join [Board Member] as a respondent in this proceeding.  A party whose rights would be adversely affected by a determination of an appeal in favor of a petitioner is a necessary party and must be joined as such. 

"Joinder requires that an individual be clearly named as a respondent in the caption and served with a copy of the notice of petition and petition to inform the individual that he or she should respond to the petition and enter a defense.  [Petitioner] did not name [Board Member] in the caption of the appeal or serve [Board Member] with a copy of the petition."

* Below are selected New York departments and agencies and political subdivisions of the State posting advisory opinions or other personnel related information on the Internet:

Opinions of the Attorney General [Formal and Informal] are posted at https://ag.ny.gov/appeals-opinions/introduction-opinions

Opinions of the State Comptroller are posted at https://www.osc.state.ny.us/legal-opinions

Open Meetings Law [OML] - Opinions of the Committee on Open Government are posted at https://www.dos.ny.gov/coog/oml_listing/oa.html

Freedom of Information Law [FOIL] - Opinions of the Committee on Open Government are posted at https://www.dos.ny.gov/coog/foil_listing/findex.html

Advisory Opinions of the NYS Department of Taxation and Finance are posted at https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/ao_tax_types.htm

Counsel Opinion Letters, New York State Department of Labor are posted at   https://www.tax.ny.gov/pubs_and_bulls/advisory_opinions/ao_tax_types.htm

Information issued by the Office of Counsel and other arms of the Public Employment Relations Board [PERB] is posted at https://perb.ny.gov/office-of-counsel/

New York City Civil Service Commission -- a list of the types of appeals considered by the Commission is posted at https://www1.nyc.gov/site/csc/appeals/other-types-appeals/other-types.page

See, also, https://research.lib.buffalo.edu/ny-admin-law/opinions-by-subject for additional such resources.

Commissioner Tahoe's decision in Petitioner's appeal is posted on the Internet at: http://www.counsel.nysed.gov/Decisions/volume59/d17827