A disciplinary penalty should not be set aside by a court where it is not irrational and does not shock the conscience

The appointing authority [School District] filed disciplinary charges alleging various instances of misconduct against a tenured teacher [Plaintiff] pursuant to Education Law §3020-a. The hearing officer sustained certain specifications of misconduct, finding that the Plaintiff was guilty of "neglect of duty, conduct unbecoming of a professional, and insubordination and imposed termination of Petitioner's employment as the penalty.

Plaintiff filed an appeal pursuant to CPLR Article 75 challenging the disciplinary action, seeking a court order vacating the determination of the hearing officer. Supreme Court vacated the determination of the hearing officer to the extent of the penalty imposed, termination, and remitted the matter back to the hearing officer for a new penalty determination.  

The School Districtappealed the Supreme Court's ruling whereupon the Appellate Division reinstated and confirmed the arbitration award and then remitted the matter to the Supreme Court "for the entry of an appropriate judgment."

The Appellate Division explained that Education Law §3020(1)* controls  in the event the appointing authority initiates a disciplinary action against a tenured teacher and provides that "[n]o person enjoying the benefits of tenure shall be disciplined or removed during a term of employment except for just cause" and in accordance with statutory procedures.

Further, opined the Appellate Division, "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" and the fact that "reasonable minds might disagree over what the proper penalty should have been does not provide a basis for ... refashioning the penalty." In the words of the court, "A [disciplinary] penalty should not be set aside where it is not irrational and does not shock the conscience."

Finding that "in light of all of the circumstances of this case, the penalty of termination is not irrational and does not shock the conscience," the Appellate Division concluded that Supreme Court should not have granted that branch of the Plaintiff's petition seeking to vacate the penalty of termination of the Plaintiff's employment as a tenured teacher.

* Citing Matter of Watkins v Board of Educ. of Port Jefferson Union Free School Dist., 26 AD3d 336, the Appellate Division noted that §3020 is the "exclusive method of disciplining a tenured teacher in New York State."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04474.htm

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Restoration to the payroll following an employee's being suspended without pay after being served with disciplinary charges

The appointing authority terminated an employee [Plaintiff] following a §75 hearing. Plaintiff challenged his termination and the Appellate Division found that the Plaintiff's termination was based on "the improper consideration of irrelevant matter." Explaining that in such situations an employee may not be suspended without pay for more than 30 days, the court ruled that Plaintiff was entitled to go back on the payroll pending the results of a new hearing.* 

An employer who has preferred charges against an employee sometimes wishes to avoid having the employee at the work site while the charges are pending. This decision supports restoring a suspended employee to the payroll upon the expiration of the period of suspension without pay otherwise permitted by law or a Taylor Law agreement without having the employee actually returning to the work site.

In contrast, a number of Taylor Law** collective bargaining agreements [CBA] include provisions permitting the appointing authority to suspend employees without pay upon the serving of disciplinary charges until a final disciplinary decision is made while other CBAs permit the appointing authority to deny the charged individual access to the work site but require the employee to be continued on the payroll while the disciplinary action is pending. Courts have upheld the lawfulness of both of these types of CBA contract provisions. 

* In this instance the court directed the appointing authority to pay Plaintiff "the salary he would have earned for the period beginning 30 days after his suspension without pay, less any compensation he derived in that period from other employment, unemployment benefits, or disability or workers' compensation benefits." 

** Article 14 of the New York State Civil Service Law.

The decision is posted on the Internet at: 
https://casetext.com/case/matter-of-chopay-v-town-of-oyster-bay

Agency's decision to revoke Plaintiff's driver's license held to be an arbitrary and capricious action under the circumstances

Plaintiff's driver's license was revoked by the New York State Department of Motor Vehicles [DMV] based on a 24-year-old default conviction for driving without insurance.*

Supreme Court dismissed Plaintiff's CPLR Article 78 petition to stay the enforcement of the one-year revocation of Plaintiff's license by DMV. Plaintiff appealed.

The Appellate Division indicated that its review of the matter was limited to whether DMV's determination was arbitrary and capricious, irrational, affected by an error of law or an abuse of discretion and, citing Pell v Board of Education of Union Free School District No. 1 of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, noted that "An action may be said to be arbitrary if it lacks basis in reason and is taken without regard to the facts."

Observing that the Court of Appeals has indicated that the possession of a license to drive is a vested property right and that "A license to operate an automobile is of tremendous value to the individual and may not be taken away except by due process,"**the Appellate Division opined that "No such due process was afforded to [Plaintiff], who never received notice of the conviction and was led to believe for over 20 years that his license was in order."

According to the decision, DMV admitted it continued to renew Plaintiff's license without apprising him of any problem, most recently in 2019 when Plaintiff renewed his New York State driver's license in person at DMV office and obtained a copy of his driving record abstract which indicated that his license status was "valid." In the words of the Appellate Division, "Imposition of the required penalty 24 years after the fact, which DMV admits was attributable to a potential data-entry error,*** while continuing to renew [Plaintiff's] license without apprising him of any problem, 'is the quintessence of an arbitrary and capricious action.'"

Reversing the Supreme Court's decision, the Appellate Division granted Plaintiff's petition, annulled DMV's decision and remitted the matter to DMV "for further proceedings in accordance with this opinion."

* Vehicle and Traffic Law §318[3][a]-[b] mandates a one-year license revocation upon such conviction.

** See Matter of Wignall v Fletcher, 303 NY 435.

*** When entering Plaintiff's violations into the DMV database, a DMV employee apparently misspelled Plaintiff's surname, which DMV acknowledged was a "possible data-entry error."

The decision is posted on the Internet at:

http://www.nycourts.gov/reporter/3dseries/2020/2020_04443.htm

Court dismissed employee's petition seeking reinstatement to her former employment in the absence of her showing "irreparable harm"

A former New York State Police officer [Plaintiff] sued her former employer, the Division of State Police [DSP] and certain named DSP employees, alleging employment discrimination and retaliation, contending that "she was sexually harassed and fired based on falsified disciplinary charges when she complained about the harassment, and that the NYSP failed to properly follow its procedures for disciplinary hearings."

In 2019, four months after learning that DSP had failed to follow its procedures, Plaintiff moved, pro se,* for a preliminary injunction seeking reinstatement to her former position. The District Court denied the injunction because Plaintiff had not shown irreparable harm and her delay in filing her motion undermined any argument that she would suffer irreparable harm. Plaintiff the appealed the District Court's ruling.

The United States Circuit Court of Appeals, Second Circuit, citing Rodriguez ex rel. Rodriguez v. DeBuono, 175 F.3d 227, affirmed the lower court's ruling, explaining that to show irreparable harm, “[t]he movant must demonstrate an injury that is neither remote nor speculative, but actual and imminent and that cannot be remedied by an award of monetary damages.” Further, opined the court, irreparable harm exists “where, but for the grant of equitable relief, there is a substantial chance that upon final resolution of the action the parties cannot be returned to the positions they previously occupied.”

The Second Circuit explained that the District Court had applied the correct legal standard, noting that “... because monetary injury can be estimated and compensated, the likelihood of such injury usually does not constitute irreparable harm." However, opined the Circuit Court, the irreparable-harm requirement might be satisfied "if a monetary award would cause the movant to go bankrupt absent interim relief."**

Further, said the court, “irreparable harm is not [generally] established in employee discharge cases by financial distress or inability to find other employment, unless truly extraordinary circumstances are shown"  citing Holt v. Continental Grp., Inc., 708 F.2d 87.

* The term used to describe an individual representing himself in judical or quasi judicial proceeding.

** See Miss America Organization v. Mattel, Inc., 945 F.2d 536.

The decision is posted on the Internet at:

https://casetext.com/case/oliver-v-ny-state-police-6

Processing Freedom of Information Law requests where the materials sought are exempt from disclosure pursuant to state statute

An individual [Plaintiff] submitted a Freedom of Information Law* request  seeking photographs and a copy of medical records held by the District Attorney in connection with Plaintiff's earlier conviction of a crime after a jury trial. 

The District Attorney denied the request and Plaintiff commenced this CPLR Article 78 proceeding seeking a court order compelling the District Attorney to provide the records Plaintiff demanded. Supreme Court denied Plaintiff's petition and Plaintiff appealed.

Citing Karlin v McMahon, 96 NY2d 842, and Public Officers Law §87[2], the Appellate Division affirmed the Supreme Court's ruling, noting that "All government records are presumptively open for public inspection unless specifically exempt from disclosure" by state or federal statute.

In this instance, explained the court, and contrary to Plaintiff's contention, the materials Plaintiff requested are exempt from disclosure pursuant to Civil Rights Law §50-b (1), which provides, in pertinent part, that "[n]o report, paper, picture, photograph, court file or other documents, in the custody or possession of any public officer or employee, which identifies ... a victim [of a sex offense defined by Penal Law Article 130] shall be made available for public inspection."

As such medical records are exempt from disclosure pursuant to state statute, the court concluded that the District Attorney was not obligated to provide the records, even in redacted form, even if such redaction might remove all details which tend to identify the victim.

The Appellate Division then opined that this exemption applies notwithstanding  Plaintiff's argument that he requires this material to support his application for "postconviction relief." 

* Public Officers Law Article 6.

The decision is posted on the Internet at: 
http://www.nycourts.gov/reporter/3dseries/2020/2020_04078.htm